- The opportunity of the witness to view the perpetrator at the time of the crime.
- The witness’s degree of attention.
- The accuracy of the witness’s prior description of the perpetrator.
- The level of certainty demonstrated at the confrontation
- The time between the crime and the confrontation.
Basic jury instruction on identificationThis instruction is based on the Third Circuit Court of Appeals’ Model Jury Instructions, Instruction 4.15, available at www.ca3.uscourts.gov. In the second question the jury is asked to consider whether the witness is positive in the identification. If the witness did express certainty, your criminal attorney may want to exclude this language on the argument that this factor is not always a valid indicator of the accuracy of recollection.
One of the (most important) issues in this case is whether (name of defendant) is the same person who committed the crime(s) charged in (Count(s) ___ of) the indictment. The government, as I have explained, has the burden of proving every element, including identity, beyond a reasonable doubt. Although it is not essential that a witness testifying about the identification (himself) (herself) be free from doubt as to the accuracy or correctness of the identification, you must be satisfied beyond a reasonable doubt based on all the evidence in the case that (name of defendant) is the person who committed the crime(s) charged. If you are not convinced beyond a reasonable doubt that (name of defendant) is the person who committed the crime(s) charged in (Count(s) ___ of) the indictment, you must find (name of defendant) not guilty. Identification testimony is, in essence, the expression of an opinion or belief by the witness. The value of the identification depends on the witness’s opportunity to observe the person who committed the crime at the time of the offense and the witness’s ability to make a reliable identification at a later time based on those observations. You must decide whether you believe the witness’s testimony and whether you find beyond a reasonable doubt that the identification is correct. You should evaluate the testimony of a witness who makes an identification in the same manner as you would any other witness. In addition, as you evaluate a witness’s identification testimony you should consider the following questions as well as any other questions you believe are important (include only those called for by the facts of the case): (First), you should ask whether the witness was able to observe and had an adequate opportunity to observe the person who committed the crime charged. Many factors affect whether a witness has an adequate opportunity to observe the person committing the crime; the factors include the length of time during which the witness observed the person, the distance between the witness and the person, the lighting conditions, how closely the witness was paying attention to the person, whether the witness was under stress while observing the person who committed the crime, whether the witness knew the person from some prior experience, whether the witness and the person committing the crime were of different races, and any other factors you regard as important. (Second), you should ask whether the witness is positive in the identification and whether the witness’s testimony remained positive and unqualified after cross-examination. If the witness’s identification testimony is positive and unqualified, you should ask whether the witness’s certainty is well-founded. (Third), you should ask whether the witness’s identification of (name of defendant) after the crime was committed was the product of the witness’s own recollection. You may take into account both the strength of the later identification and the circumstances under which that identification was made. You may wish to consider how much time passed between the crime and the witness’s later identification of the defendant. You may also consider (whether the witness gave a description of the person who committed the crime) (how the witness’s description of the person who committed the crime compares to the defendant). (You may also consider whether the witness was able to identify other participants in the crime.) If the identification was made under circumstances that may have influenced the witness, you should examine that identification with great care. Some circumstances which may influence a witness’s identification are whether the witness was presented with more than one person or just (name of defendant); whether the witness made the identification while exposed to the suggestive influences of others; and whether the witness identified (name of defendant) in conditions that created the impression that (he) (she) was involved in the crime. [(Fourth), you should ask whether the witness failed to identify (name of defendant) at any time, identified someone other than (name of defendant) as the person who committed the crime, or changed his or her mind about the identification at any time.] [The court should also give the following admonition if the witness’s opportunity to observe was impaired or if the witness’s identification is not positive, was shaken on cross-examination, or was weakened by a prior failure to identify the defendant or by a prior inconsistent identification: You should receive the identification testimony with caution and scrutinize it with care.] If after examining all of the evidence, you have a reasonable doubt as to whether (name of defendant) is the individual who committed the crime(s) charged, you must find (name of defendant) not guilty.