Utah Rules of Evidence – Comment Period Closed November 10, 2018

Regarding Proposed Rule 617

I believe the enactment of this rule is contrary to both case law and recent practice by the United States Supreme Court and the Utah Supreme Court, and will have the unintended consequence that in practice, every case that has an eyewitness identification will have a hearing, regardless of whether that identification was suggestive by law enforcement or not.
First, this rule expands the suppression of evidence beyond any constitutional requirements. The United States Supreme Court, addressing the same concerns raised by the committee note to this proposed rule, rejected expanding exclusion of eyewitness identification in the constitutional context in Perry v. New Hampshire, 565 U.S. 228 (2012). The Court noted that “[t]he Constitution, our decisions indicate, protects a defendant against a conviction based on evidence of questionable reliability, not by prohibiting introduction of the evidence, but by affording the defendant means to persuade the jury that the evidence should be discounted as unworthy of credit.” Perry v. New Hampshire, 565 U.S. 228, 237 (2012). The court noted that evidence should be excluded under the Due Process Clause “[o]nly when evidence is so extremely unfair that its admission violates fundamental conceptions of justice …” Perry v. New Hampshire, 565 U.S. 228, 237 (2012) The Court reviewed their jurisprudence and noted that when it came to eyewitness identification, ”due process concerns arise only when law enforcement officers use an identification procedure that is both suggestive and unnecessary. Perry v. New Hampshire, 565 U.S. 238-239 (2012). The Court observed that even if the procedure were suggestive, “[i]nstead of mandating a per se exclusionary rule, the Court held that the Due Process Clause requires courts to assess, on a case-by-case basis, whether improper police conduct created a “substantial likelihood of misidentification.” Id. at 239. The Court held that this was a “totality of the circumstances approach.” Id. at 239. The Court limited Due Process claims only when the “suggestive circumstances [were] arranged by law enforcement.” Id. at 248. One of the Court’s reasons to reject expanding Due Process claims to any “suggestive” identifications was the fact that this “position would open the door to judicial preview, under the banner of due process, of most, if not all, eyewitness identifications.” Id. at 243. Moreover, the Court observed “that the jury, not the judge, traditionally determines the reliability of evidence.” Id. at 245. Finally, the Court noted the safeguards that were already in place: “the defendant’s Sixth Amendment right to confront the eyewitness,” “the defendant’s right to the effective assistance of an attorney, who can expose the flaws in the eyewitness’ testimony during cross-examination and focus the jury’s attention on the fallibility of such testimony during opening and closing arguments,” “[e]yewitness-specific jury instructions,” and “[t]he constitutional requirement that the government prove the defendant’s guilt beyond a reasonable doubt also impedes convictions based on dubious identification evidence.” Id. at 246-247. Finally, they even acknowledged the steps that Utah took to allow defendants to “present expert testimony on the hazards of eyewitness identification evidence. See, e.g., State v. Clopten, 2009 UT 84.”
Second, our own Supreme Court has recently moved away from the use of lists and factors when assessing the admissibility of evidence. While many of these “tests” started out with good intentions, practitioners and district courts started to strictly adhere to the factors instead of focusing on the totality of the circumstances. This year in State v. Fullerton, the Utah Supreme Court rejected strict reliance on factors judicially created to determine whether a person was in custody for purposes of Miranda, because “[s]trict or sole reliance on the Carner factors is inconsistent with the totality of the circumstances analysis prescribed by federal law.” 2018 UT 49. Last year, the Utah Supreme Court, when discussing the “Shickles” factors in a Rule 403 analysis, “reemphasize that courts are bound by the text of rule 403, and it is unnecessary for courts to evaluate each and every . . . factor in every context.” State v. Lowther, 2017 UT 24, ¶41

Third, this rule will result in a hearing being held in every case, which is exactly what the United States Supreme Court felt was unnecessary. As an example, in 2010, the Utah Rules of Criminal Procedure enacted Rule 15A, which sought to “streamline” the process involving chain of custody issues. It provided a process by which a defendant could demand the documentation regarding chain of custody. However, that rule was repealed a year later, because a demand was quickly filed in every case, regardless of whether chain of custody was a central issue. As was noted, “[t]he rule has had the opposite effect, creating additional and unnecessary work for both prosecutors and defense attorneys.” Enacting this rule will have the same effect. Every defendant will file a motion pursuant to this rule, regardless of how the identification occurred.

This rule has essentially taken the “best practices” of police procedure, and copied them into a rule of evidence. Enacting this rule is both unnecessary as safeguards exist both procedurally and in other rules of evidence, and it expands the suppression of evidence beyond the Constitution.

Regarding Proposed Rule 617

Eyewitness identifications possess a unique combination of features: [1] they have extraordinary impact on juries[2] yet are subject to counter-intuitive factors affecting their reliability.[3] As a result, “[e]yewitness identifications play an important role in the investigation and prosecution of crimes, but they have also led to erroneous convictions.”[4]

The Utah County Attorney’s Office supports efforts to improve the truth-seeking function of our justice system, include efforts related to eyewitness identification. However, the Office opposes proposed Rule 617 in its current form.

Proposed Rule 617’s current language strikes an improper balance between a defendant’s right to due process, a victim’s right to be heard, and the peoples’ right to present relevant evidence against the accused. Furthermore, the rule’s current form strikes an improper balance between a court’s gate-keeping function and a jury’s fact-finding function.

The office’s main objections involve proposed subsections (b) and (e). Each subsection will be discussed in turn.

Admissibility in General

Subsection (b) discusses admissibility of eyewitness identifications in general. In any case where a defendant contests an eyewitness identification, the rule permits a pretrial hearing where the trial court is directed to consider a list of factors and to exclude the identification if the jury could not reasonably rely on the identification. The proposed subsection is inadequate because it fails to take account of applicable due process requirements, fails to properly balance the role of judge as gate-keeper and jury as fact finder, and fails adequately to advise the trial court what it should do vis-à-vis contested eyewitness identifications.

The federal constitution “protects a defendant against a conviction based on evidence of questionable reliability, not by prohibiting introduction of the evidence, but by affording the defendant means to persuade the jury that the evidence should be discounted as unworthy of credit.”[5] As Utah’s Justice Lee argued, historically due process has been a limitation on government action, “not a sweeping charter for judges to assure fairness by excluding evidence that may be of questionable reliability in light of emerging principles of social science.”[6] Instead, as Justice Ginsburg notes, “juries are assigned the task of determining the reliability of the evidence presented at trial.”[7] In other words, there is a strong presumption that juries should see even questionable eyewitness identification evidence.[8]

Because of this, the United States Supreme Court has found that even “tainted” eyewitness identifications are not per se excluded from trial.[9] Rather, on a case-by-case basis, courts determine whether “improper police conduct” created a “substantial likelihood of misidentification.”[10] In evaluating that likelihood, reliability is the “linchpin.”[11] However, this check was created not with an eye to excluding the evidence but “to avoid depriving the jury of identification evidence that is reliable, notwithstanding improper police conduct.”[12]

Proposed Rule 617 stands in contrast to these due process concerns. The committee notes to the proposed rule seemingly indicate that the rule encapsulates due process requirements. The proposed rule, however, does not do so. As noted, the United States Supreme Court has concluded that due process only concerns itself with improper police conduct and only excludes identifications where the improper conduct resulted in a substantial likelihood of misidentification. The proposed rule, however, directs the trial courts to consider a number of factors which have nothing to do with improper police conduct. And it directs the trial courts to apply a standard of reasonable reliability instead of a standard of substantial likelihood of misidentification.

Additionally, unlike the due process clauses, the proposed rule subjects all contested eyewitness identifications to judicial oversight. The Supreme Court of the United States has explicitly rejected arguments which would “open the door to judicial preview, under the banner of due process, of most, if not all, eyewitness identifications.”[13] And a recent concurring opinion of the Utah Supreme Court stated: “I see no basis for extending th[e] longstanding view of due process to establish an omnibus guarantee of evidentiary reliability. Nor do I see a limiting principle on such a slippery slope.”[14] Rather, “preliminary judicial inquiry into the reliability of an eyewitness identification” should only occur when the identification was “procured under unnecessarily suggestive circumstances arranged by law enforcement.”[15]

In short, the proposed rule fails to take account of applicable due process norms set out by the federal and state Supreme Courts.

The Utah County Attorney’s Office recognizes, however, these statements represent the constitutional floor of the state and federal due process clauses. There are valid policy reasons to take Utah beyond constitutional floors. Doing so should be done with sensitivity to ensure that any new rule promotes, rather than, frustrates justice.[16] The Office suggests that Utah looks to her sister-states, which have led on this issue to construct a rule.

New Jersey, for example, has supplemented federal considerations with separate state law standards. In 2011, the New Jersey Supreme Court issued a unanimous decision creating a new framework for admitting eyewitness identification evidence. The framework permits pretrial hearings to review the admissibility of eyewitness identification. Unlike proposed Rule 617, the New Jersey standard articulates important limits, including the role of the court and the burdens on the parties. First, to even obtain a pretrial hearing, a defendant cannot merely contest the identification but must show some evidence of suggestiveness related to either estimator or system variables that could lead to mistaken identification. Then, at a hearing the prosecution must offer some proof that the eyewitness identification is reliable. Finally, if the prosecution makes that showing, the ultimate burden of proving a “very substantial likelihood of irreparable misidentification” falls on the defendant. Such a rule attempts to (1) mitigate judicial intrusion into every eyewitness identification, (2) preserve a proper balance between the gate-keeper and the finder of fact, and (3) strike a proper balance between due process concerns, victim rights, and the ability to present relevant, truthful evidence.

By contrast, Massachusetts has considered a different approach to the issue. In 2013, a Massachusetts Supreme Judicial Court Study Group on Eyewitness Identification recommended that the state adopt a set of best practices, model jury instructions, and additional flexibility for trial courts to address problematic identifications.[17] The report specifically identified problems with the New Jersey approach.[18] For example, the study group believed that New Jersey’s opportunity for pretrial hearings where a defendant produce “some showing of suggestiveness” was too broad.[19] Instead, they recommended that a pretrial evidentiary hearing be permitted in one of four scenarios: (1) the defendant makes a preliminary showing of an unnecessarily suggestive identification procedure; (2) the defendant makes a showing that a witness was involved in a highly suggestive confrontation with the defendant independent of any police involvement; (3) that the police failed to follow certain specific best police practices on eyewitness identification in a substantial way in conducting or arranging a pretrial identification procedure; or (4) when the pretrial eyewitness identification is uncorroborated and the defendant makes a showing of the presence of estimator variables[20] casting doubt on the reliability of the identification.[21] At the hearing, the defendant must then show by the preponderance of evidence that (1) the identification was “so unnecessarily suggestive that it was conducive to irreparable misidentification,” (2) the identification was unreliable under the totality of circumstances, or (3) that the police “failed in a substantial way to follow certain specific Best Police Practices.”[22] Lastly, the study group recommended that courts have a variety of intermediate remedies available to deal with problematic eyewitness identifications short of exclusion of the evidence.[23] For example, a court could permit expert testimony or incorporate cautionary jury instructions.[24]

Both the New Jersey framework and the Massachusetts recommendations, while mutual exclusive, provide possible routes for Utah moving forward. Both are far superior to proposed Rule 617. Unlike those avenues, the proposed rule allows for challenges to every identification and fails to establish which party carries what burden at the hearing. Furthermore, unlike the Massachusetts proposal, which would permit a variety of intermediate remedies, the proposed rule offers only the option of exclusion for a problematic identification.

Due to the significant problems with the proposed rule, including its deviation from due process norms without clear, articulated standards, the Utah County Attorney’s Office urges that Proposed Rule 617 not be made final. Instead other options should be considered to create a rule which fairly balances the competing concerns present in the criminal justice system.

Expert Testimony

Proposed Rule 617(e) governs expert testimony: “When the court admits eyewitness identification evidence, it may also receive related expert testimony upon request.” According to the committee note, this rule was “included because the National Academies of Science (NAS) report recommends … expert testimony.”

Unfortunately, the committee failed to craft a rule which was true to the NAS report and the explicit limitations it noted in regards to expert testimony.

The report noted that contrary to the practice of many courts, judges should “have the discretion to allow expert testimony on relevant precepts of eyewitness memory and identifications.”[25] But this recommendation came with an important caveat: “Expert witnesses should not be permitted to testify without limits.”[26]

An expert “explaining the relevant scientific framework can describe the state of the research and focus on the factors that are particularly relevant in a given case,”[27] but, “an expert must not be allowed to testify beyond the limits of his or her expertise.”[28] Thus, while “current scientific knowledge would allow an expert to inform the jury of factors bearing on their evaluation of an eyewitness’ identification” there is “no evidence that the scientific research has reached the point that would properly permit an expert to opine, directly or through an equivalent hypothetical question, on the accuracy of an identification by an eyewitness in a specific case.”[29]

This important limitation that expert witnesses must not opine, directly or through hypotheticals, on a specific case is nowhere to be found in the rule or the committee notes. While science may eventually advance to the point of allowing such testimony, the failure to note this current limitation either in the rule text or the committee note shows that proposed Rule 617 is not yet ready for use by courts or practitioners.

Additionally, it is unclear why current Rules 702 and 703 are inadequate to address eyewitness identification experts. If proposed rule 617 is to provide specific instructions related to experts in this context, it has utterly failed to do so. If specific instructions beyond those applied to other experts are unnecessary, then proposed rule 617(e) is not only unnecessary but likely to confuse courts and practitioners.

It is the opinion of the Utah County Attorney’s Office that proposed Rule 617 should not be adopted until these considerations, as well as any other problems identified by other commenters on the proposed rule, are adequately addressed.

Respectfully,

Utah County Attorney’s Office
Jeffrey R. Buhman, Utah County Attorney
Chad E. Grunander, Criminal Division Chief
Adam R. Pomeroy, Deputy County Attorney

[1] Perry v. New Hampshire, 565 U.S. 228, 249 (2011) (Sotomayor, J., dissenting) (“This Court has long recognized that eyewitness identifications’ unique confluence of features–their unreliability, susceptibility to suggestion, powerful impact on the jury, and resistance to the ordinary tests of the adversarial process–can undermine the fairness of a trial.”).
[2] Watkins v. Sowders, 449 U.S. 341, 352 (1981) (Brennan, J., dissenting) (“[T]here is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says ‘That’s the one!’”) (quoting Elizabeth F. Loftus, Eyewitness Testimony 19 (1979)).
[3] National Academies of Science, Identifying the Culprit: Assessing Eyewitness
Identification 111 (2014) (“NAS Report”), available at https://www.nap.edu/catalog/18891/identifying-the-culpritassessing-eyewitness-identification.
[4] Id. at xiii.
[5] Perry, 565 U.S. at 237.
[6] State v. Clopten, 2015 UT 82 ¶77 (2015) (Lee, J., concurring).
[7] Perry, 565 U.S. at 237.
[8] Id. at 245 (“[T]he jury, not the judge, traditionally determines the reliability of evidence.”)
[9] Id. at 239.
[10] Id.
[11] Id. at 239-241.
[12] Id. at 241.
[13] Id. at 243.
[14] Clopten, 2015 UT 82 at ¶78 (Lee, J., concurring).
[15] Perry, 565 U.S. at 248.
[16] As the United States Supreme Court has noted, a rule requiring automatic exclusion would “g[o] too far” by “keep[ing] evidence from the jury that is reliable and relevant” and “may result, on occasion, in the guilty going free.” Manson v. Brathwaite, 432 U.S. 98, 112 (1977); see also id. at 113 (when an “identification is reliable despite an unnecessarily suggestive [police] identification procedure,” automatic exclusion “is a Draconian sanction … that may frustrate rather than promote justice”).
[17] Supreme Judicial Court Study Group on Eyewitness Evidence, Report and Recommendations to the Justices (July 25, 2013) (“Massachusetts Report”), available at https://www.mass.gov/files/documents/2016/08/ql/eyewitness-evidence-report-2013.pdf.
[18] Id. at 42.
[19] Id. at 43; cf id. at 46 (in discussing the Oregon approach to the issue, some members of the study group were “concerned about the toll that [the Oregon] approach would exact on our already overburdened criminal justice system; we heard reports from Oregon that defense counsel were being advised, pursuant to [Oregon case law], to raise evidentiary challenges any time eyewitness identification was likely to be an issue at trial”)
[20] The accuracy and reliability of eyewitnesses’ identifications are modulated by several variables. NAS Report at 16. These variables can be divided into those which reflect a witnesses’ situational and cognitive state at the time of the crime and those variables which reflect controllable conditions and internal states following the crime. Id. The former are called estimator variables while the later are termed system variables. Id. In other words, system variables describe specific procedures and practices – for example, lineup identification protocols – while estimator variables associated are with characteristics of the witness at the time of the crime – for example, race and gender or stress and environmental conditions.
[21] Massachusetts Report at 47.
[22] Id. at 110-111.
[23] Id. at 3, 10, 48, 112-113.
[24] Id. at 112-113.
[25] NAS Report at 111.
[26] Id.
[27] Id. at 111-12.
[28] Id. at 112.
[29] Id.

The Innocence Project is a national organization dedicated to exonerating the wrongfully convicted and to pursuing legislative, judicial and administrative reforms that prevent and address wrongful convictions of the innocent. The Rocky Mountain Innocence Center (RMIC) works to exonerate the wrongfully convicted in Utah, Nevada and Wyoming.

Our organizations commend the Utah Supreme Court’s Advisory Committee on the Rules of Evidence for proposing Rule 617 (the “Proposed Rule”) and encourage its adoption by the Judicial Council. Based on exonerations of the innocent and nearly four decades of robust social science, we believe that the Proposed Rule will prevent wrongful convictions involving eyewitness misidentification in the state of Utah.

I. Wrongful Convictions Involving Eyewitness Misidentification

Eyewitness misidentification is a leading contributor to the wrongful convictions of innocent Americans, playing a role in 70 percent of the nation’s 364 DNA exonerations. In about 50 percent of our cases, our work exonerating innocent people has led to the identification of the true perpetrators. In the eyewitness misidentification cases, the actual perpetrators in these wrongful convictions went on to commit and be convicted of 24 additional violent crimes, including 16 rapes and two murders.

Mistaken eyewitnesses – particularly crime victims – suffer doubly when DNA demonstrates that the real perpetrator was not the person they identified. Wrongful convictions destroy lives and represent a serious threat to public safety. Science-based fixes designed to address the leading contributing causes of wrongful conviction – like the Proposed Rule – are crucial to preventing future wrongful convictions and ensuring public safety.

In Utah, mistaken eyewitness identification contributed to the wrongful convictions of Bruce Goodman and Harry Miller. Both men lost a combined 25 years in prison for crimes they did not commit until they were exonerated with representation from the Rocky Mountain Innocence Center. Maurice Possley, Bruce Dallas Goodman, Innocence Project, https://www.innocenceproject.org/cases/bruce-dallas-goodman/. Their wrongful convictions had a ripple effect of harming the innocent and their families, allowing the actual assailants to remain undetected, and costing taxpayer dollars to fund state compensation for their wrongful convictions.

In 1986 Goodman was convicted of murdering Sherry Ann Fales Williams in Beaver, Utah. Two eyewitnesses claimed that they saw Goodman and Williams together within 24 hours of the discovery of her body and jurors were told that the rope used to bind Williams was the same rope used where Goodman worked. Goodman was sentenced to five years to life in prison. In 2002, DNA testing was conducted on the rape kit and fluids found in the snow at the crime scene and the results excluded him. In 2004, upon the recommendation of the Utah Attorney General’s Office, Goodman’s conviction was vacated and the case was dismissed. Possley, supra. (In 2015, the State of Utah stipulated to a posthumous finding of actual innocence for Mr. Goodman as well as compensation for the time he spent wrongfully incarcerated). Our Exonerees: Bruce Dallas Goodman, Rocky Mountain Innocence Project, http://rminnocence.org/our-exonerees/bruce-dallas-goodman.html.

Harry Miller spent four years in prison for aggravated robbery. In 2000, a white woman was robbed at knifepoint at a store in Salt Lake City, and three years later she saw Miller, who is African-American, in a photo lineup and identified him to police as the robber. The victim again identified him in a live lineup and in court. Miller told police that he had lived in Louisiana since 2000 and suffered a stroke two weeks before the crime that made him unable to drive. His in-home nurse said she had visited him in Louisiana the day before the crime. Miller’s attorney failed to call any of his alibi witnesses. In 2007 Miller was granted a motion for a reversal of his conviction, and the district attorney dismissed all charges before retrial. Stephanie Denzel, Harry Miller, The National Registry of Exonerations, https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3468. On September 11, 2011, the State stipulated to Mr. Miller’s factual innocence and provided compensation for the time he was wrongfully incarcerated. Our Exonerees: Harry Miller, Rocky Mountain Innocence Project, http://rminnocence.org/our-exonerees/harry-miller.html.

II. Rule 617 Enhances the Accuracy & Value of Eyewitness Identification Evidence

Proposed Rule 617 reflects decades of peer-reviewed social science research and is based on recommendations by the National Research Counsel, the U.S. Department of Justice, the International Association of Chiefs of Police, the American Bar Association and other organizations. In addition to ensuring the admissibility of eyewitness identification evidence that is reliable, the Proposed Rule would facilitate the use of evidence-based practices by law enforcement. If adopted, Rule 617 would be one of the nation’s strongest measures to improve the accuracy and value of eyewitness identification evidence.

Improving the value of eyewitness identification evidence in court. Rule 617 offers protections against unreliable eyewitness identification evidence at the trial court level.

The Utah Supreme Court has long been a leader in addressing the risk of eyewitness misidentification by incorporating this scientific research into its decisions addressing the evaluation and treatment of eyewitness identification evidence and ensuring that jurors have sufficient context—whether through expert testimony or jury instructions or both—to evaluate eyewitness identification evidence. See, e.g., State v. Long, 721 P.2d 483, 487-95 (Utah 1986); State v. Ramirez, 817 P.2d 774 (Utah 1991); State v. Clopten, 223 P.3d 1103 (Utah 2009).

Rule 617 provides an important new tool that will ensure that factfinders evaluate identification evidence in light of established social science findings. It would implement an evidentiary framework for the treatment of challenged identification evidence that is based on a modern scientific understanding of visual perception and memory and that reflects the many factors science has shown can affect the reliability of an identification. In addition, the rule adopts nearly all of the National Research Council’s recommendations for best practices for law enforcement and for strengthening the value of eyewitness evidence in court including, critically, allowing expert testimony and jury instructions, if requested, to assist triers of fact in understanding the variables that may influence a witness’ visual experience of an event and the factors that underlie the formation, storage and recall of memory.

With the adoption of Rule 617, Utah will join a growing number of states that have incorporated scientific research into the judicial review and treatment of eyewitness identification evidence. The supreme courts of New Jersey, State v. Henderson, 208 N.J. 208, 27 A.3d 872 (2011); Oregon, State v. Lawson, 352 Or. 724, 291 P.3d 673 (2012); Alaska, Young v. State, 374 P.3d 395 (Alaska 2016); Massachusetts, Com. v. Thomas, 68 N.E.3d 1161 (Mass. 2017); and Connecticut, State v. Harris, 191 A.3d 119 (Conn. 2018), have each issued landmark decisions that modify existing legal standards for the evaluation of identification evidence to make them consistent with scientific research. Other state supreme courts have reviewed and accepted the scientific research on a range of issues, including system and estimator variables that can affect the reliability of a witness’s memory and the accuracy of a witness’s identification. See Com. v. Walker, 92 A.3d 766, 782-83 (2014) (collecting cases from 44 states, the District of Columbia, and 10 federal circuit courts permitting expert testimony); State v. Guilbert, 49 A.3d 705, 721–25 (Conn. 2012) (collecting cases and studies demonstrating that the scientific research is well-settled and largely unknown to fact finders). In addition to making expert testimony available in many cases, id., some courts have issued substantially more robust, science-based identification instructions that offer jurors clear guidance for evaluating identification evidence, see New Jersey Identification Instruction (July 19, 2012), http://www.judiciary.state.nj.us/pressrel/2012/jury_instruction.pdf; Massachusetts Model Eyewitness Identification Instruction (Nov. 2015), http://www.mass.gov/courts/docs/courts-and-judges/courts/district-court/jury-instructions-criminal/6000-9999/9160-defenses-identification.pdf, while others have strictly limited in-court identifications or other aspects of a witness’s testimony. See State v. Dickson, 141 A.3d 810 (Conn. 2016); Com. v. Crayton, 21 N.E.3d 157 (Mass. 2014); Com. v. Collins, 21 N.E.3d 528 (Mass. 2014); State v. Lawson, 291 P.3d 673 (Or. 2012). These decisions, like Rule 617, reflect decades of scientific research and improve both the reliability of eyewitness identification admitted at trial and factfinders’ evaluation of that evidence.

Incentivizing law enforcement to use evidence-based procedures: Like Rule 616 on recording custodial interrogations, adopted by the Utah Judicial Council in 2016, the Proposed Rule strongly incentivizes statewide adoption of best practices by law enforcement. This will help to facilitate more accurate eyewitness identifications, preventing wrongful convictions and enhancing law enforcement investigations.

The evidence-based identification practices for lineups and show-ups listed in the proposed rule are supported by decades of social science research and include: double-blind administration of the procedure; prophylactic pre-procedure instructions to the eyewitness that the perpetrator may or may not be present and the investigation will continue regardless of whether or not an identification is made; selection of fillers that match the eyewitness’s description of the perpetrator and do not make the suspect noticeably stand out; documenting the eyewitness’s level of confidence in his or her identification and any other responses; ensuring separate procedures for different eyewitnesses; avoiding involving the same witness to multiple . procedures; and recording eyewitness identification procedures to preserve a permanent record of the conditions associated with the initial identification

Four of these evidence-based procedures – double-blind administration; prophylactic pre-procedure instructions; selection of fillers that match the eyewitness’s description of the perpetrator and do not make the suspect noticeably stand out; and documenting the eyewitness’s level of confidence in his or her identification – have been successfully implemented by 22 states through a high court decision or rule, statute or voluntary adoption of written policies by the majority of law enforcement agencies. (States that have adopted four key evidence-based practices: California, Colorado, Connecticut, Georgia, Hawaii, Louisiana, Maryland, Massachusetts, Michigan, Montana, Nebraska, Nevada, New Hampshire, New Jersey North Carolina, Ohio, Oregon, Rhode Island, Texas, Vermont, West Virginia, Wisconsin). Recording the identification procedures is required by statute in California, Georgia, Illinois Louisiana, and North Carolina. CA Chap 977 (2018); Ga. Code Ann. §17-20-1, et seq (2015); IL ST CH 725 § 5/107A-0.1 (eff. 2014, amend. 2015); LSA-C.Cr.P. Art. 251; N.C. Gen Stat. § 15A-284.52 (2008, amend. 2015)

Utah law enforcement agencies have already been exposed to best practices for administering eyewitness identification procedures. The Innocence Project and RMIC provided the Salt Lake Sheriff’s Unified Police Department and the Salt Lake City Police Department with in-person training in 2015. In addition, the Innocence Project offers free tools that can assist Utah law enforcement agencies with implementation including training videos produced with the International Association of Chiefs of Police, policy-writing guides and model policies from other jurisdictions.

Proposed Rule 617 would provide an excellent legal framework for improving the evidentiary value of eyewitness identification evidence and, if a misidentification does occur, preventing a wrongful conviction. The potential benefits of this rule have been demonstrated in other states that have adopted similar reforms: the innocent and crime victims would be protected, law enforcement would have more accurate and reliable evidence to assist in investigations and keep communities safe, and taxpayer funds would be spared from state compensation and civil payments stemming from wrongful convictions. The Innocence Project and Rocky Mountain Innocence Center strongly encourages the Utah Judicial Council to adopt the Proposed Rule.

I fully support the new proposed Rule 617. Eyewitness identification is one of the most unreliable forms of evidence regularly used in criminal cases. With the advent of the use of highly reliable DNA evidence, it has become clear in post-conviction litigation just how unreliable stranger identifications by eyewitnesses are. In a huge percentage of post-conviction exonerations in rape or murder cases, it is unreliable eyewitness identification that was the culprit resulting in an innocent person being convicted (and therefore in an actual violent criminal being allowed to roam the streets). If mistaken eyewitnesses are responsible for such a high rate of unjust convictions in the kinds of cases where DNA science is later available eventually to clear the record, imagine how many innocent persons have been convicted in other kinds of criminal cases, such as burglaries or robberies, where no DNA was available to make things clear. Yet, to the lay public, this is very counterintuitive. Eyewitnesses are very compelling to the jury. I strongly support this Rule that will force caution in the use of eyewitness identifications. It is suggested in comments above that this Rule will result in the admissability of these witnesses’ testimony being considered carefully, including at a hearing, in many cases. If that is the outcome, then good. The objective of our system is to achieve justice, and afford due process—not to do things quickly and on the cheap.

Regarding Rule 617. I write to support the proposed rule.

• As a member of Utah’s Supreme Court for 16 years, including four as Chief Justice, I became deeply concerned about the proven power of eyewitness identification to convict defendants even when the circumstances surrounding the identification may have been highly suggestive. The court as a whole was also concerned that this powerful evidence be admitted only when its procurement occurred in circumstances that made its reliability likely, and that reliability was also exposed to critical testing before the tribunal.

• The proposed rule is a superior approach to addressing the problems of eyewitness identification. The case by case approach is limited by the fact that it often has been based on constitutional analysis not specific to the issues appropriate to this narrow evidentiary area, is handicapped by reliance on the briefing of the parties in specific cases, with a resultant possible lack of scientific expertise, and by a reliance on other courts’ decisions, which may be grounded not on science but on jurisprudential considerations. Often, the earlier decisions relied upon, particularly if from the U.S. Supreme Court, are old and make no pretense of looking closely at the relevant science particular to eyewitness identifications. A rule has the advantage of being readily amendable, and also of being crafted by those with scientific expertise after debate and compromise. That appears to be the case with this rule, which strikes me as a carefully drawn list of considerations consistent with what the literature and better case law outline as pertinent to assuring that eyewitness evidence is worthy of the extraordinary weight it is given by finders of fact. It appears to represent a broad consensus of those expert in the area, and would build upon the steps the Utah Supreme Court has taken over the years to incorporate science into the evaluation of eyewitness identification evidence by factfinders through expert testimony and jury instructions. . See, e.g., State v. Long, 721 P.2d 483, 487-95 (Utah 1986); State v. Ramirez, 817 P.2d 774 (Utah 1991); State v. Clopten, 223 P.3d 1103 (Utah 2009).

• The proposed rule would permit trial judges to exercise a gatekeeping function to prevent unreliable eyewitness identification evidence from tainting a criminal proceeding and contributing to the conviction of an innocent person.

• The U.S. Supreme Court established the current requirements for judicial review of eyewitness identification evidence under the Due Process Clause in the1977 Manson v. Brathwaite ruling. The Manson test for evaluating reliability is based, in turn, on prior rulings and does not reflect nearly 40 years of applied research findings that have occurred since the decision was issued.

• While the U.S. Supreme Court has yet to revise the Due Process test under Manson, it has recognized the role of state rules of evidence and trial courts in excluding evidence “if its probative value is substantially outweighed by its prejudicial impact or potential for misleading the jury (Perry v. New Hampshire, 565 U.S. 228 (2012)).”

• Proposed Rule 617 would do exactly that by allowing trial judges to exclude eyewitness identification evidence that is suggestive and unreliable based on established scientific research. That the proposed rule may go beyond what the U.S. Supreme Court has suggested long ago as a constitutionally acceptable standard says nothing about whether it is a wise step to take. I would note that in the period when Manson was decided, the FBI was of the view that human memory was like a tape recorder. It could be replayed faithfully. (See State v.Long.) That view has long since been abandoned as scientifically unsound. There is no reason that the standard in Utah for the admission of eyewitness testimony that is almost certainly the most powerful evidence in any criminal case should be grounded on standards that are out of date scientifically, no matter who set those standards.

• By adopting this rule, the Utah Supreme Court would follow the lead of state high courts in New Jersey, State v. Henderson, 208 N.J. 208, 27 A.3d 872 (2011); Oregon, State v. Lawson, 352 Or. 724, 291 P.3d 673 (2012) and Alaska, Young v. State, 374 P.3d 395 (Alaska 2016) that have established scientifically-based frameworks for the admissibility of eyewitness identification evidence.

• In addition, adoption of the rule would comply with the National Research Council’s recommendation that trial judges hold pre-trial judicial inquiries on eyewitness testimony, regardless of whether an objection was raised. “Judges rarely make pre-trial inquiries about evidence in criminal cases without one of the parties first raising an objection. In cases involving eyewitness evidence, however, parties may not be sufficiently knowledgeable about the relevant scientific research to raise concerns…. Judges have an affirmative obligation to insure the reliability of evidence presented at trial.” (National Research Council. 2014. Identifying the Culprit: Assessing Eyewitness Identification. Washington, DC: The National Academies Press. https://doi.org/10.17226/18891.)

• The Utah Supreme Court has already recognized the role of judges excluding unreliable evidence with the adoption of Rule 616 in 2015, which makes defendant statements during custodial interrogations inadmissible unless the interrogation is recorded in its entirety.

• Proposed Rule 617 similarly facilitates the use of best practices by law enforcement and safeguards against inaccurate evidence that could result in a wrongful conviction.

The Utah Association of Criminal Defense Lawyers supports Proposed Rule 617 and urges the Utah Judicial Council to adopt it as written.

All of our rules and court processes seek to ensure the reliability and fairness of judicial proceedings for all parties. At the outset, it must be made clear that “reliability” is a legal matter and one of constitutional due process significance. Due process requires the admission and consideration of “reliable” evidence. Accord Utah Const. art, I, section 7; U.S. Const. amend. XIV. Both federal and state law has consistently advanced the fundamental principle that “reliability is the linchpin of due process” and that convictions based upon unreliable evidence cannot stand. Cf. Maryland v. Craig, 497 U.S. 836, 837, 110 S. Ct. 3157, 3159, 111 L. Ed. 2d 666 (1990) (Confrontation Clause’s central purpose is “to ensure the reliability of the evidence against a defendant”); Lee v. Illinois, 476 U.S. 530, 539, 106 S. Ct. 2056, 2061, 90 L. Ed. 2d 514 (1986) (confession of an accomplice presumptively unreliable); Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140 (1977) (“reliability is the linchpin in determining the admissibility of identification testimony”); Foster v. California, 394 U.S. 440, 443, 89 S. Ct. 1127, 1129, 22 L. Ed. 2d 402 (1969) (the suggestive elements of the law enforcement procedure “so undermined the reliability of the eyewitness identification as to violate due process”); State v. Glasscock, 2014 UT App 221, ¶ 26, 336 P.3d 46 (Due Process Clause of the Utah Constitution bars admission of unreliable eyewitness identifications into evidence); State v. Guzman, 2004 UT App 211, ¶ 15, 95 P.3d 302, 307, aff’d, 2006 UT 12, ¶ 15, 133 P.3d 363 (in context of eyewitness identification evidence, “judge must preliminarily determine whether [evidence] is sufficiently reliable that its admission and consideration by the jury will not deny the defendant due process” and then, “if reliable and therefore admissible, the jury determines the credibility of that [evidence].”); State v. Johnson, 856 P.2d 1064, 1072-73 (Utah 1993), superceded by statute on other grounds (trial court erred in considering unreliable evidence for sentencing purposes and “[t]o require a defendant to assume the burden of disproving highly unreliable evidence might well violate due process.”); State v. Rimmasch, 775 P.2d 388, 397-99 (Utah 1989) (discussing need for threshold reliability examination by trial court prior to admission of scientific evidence).

Also, the determination as to whether evidence is “reliable” is a matter decided by the judge before presented to a jury. The burden of demonstrating the reliability, and thus, the admissibility, of proffered evidence is on the proponent of the questioned evidence – here, the proponent of the identification testimony. See State v. Ramirez, 817 P.2d 774, 778 (Utah 1991), holding modified by State v. Thurman, 846 P.2d 1256 (Utah 1993). The Utah Supreme Court has also recognized that there is a strong correlation between reliability and importance, and finds “[t]he greater the importance of the testimony, the greater should be its guarantees of reliability in order to gain admission” and crucially, “[t]estimony which is dispositive, or virtually dispositive of a case if believed, should have strong guarantees of reliability.” State v. Rimmasch, 775 P.2d 388, 412 (Utah 1989) (Durham, J., concurring). Simply, the importance of the testimony heightens the need for its reliability.

Courts have consequently excluded several types of testimony that have been deemed “unreliable”. In fact, the exclusion of unreliable evidence is a principal objective of many evidentiary rules. See, e.g., United States v. Scheffer, 523 U.S. 303, 309, 118 S. Ct. 1261, 1265, 140 L. Ed. 2d 413 (1998). For example, under Utah law, the proponent of the evidence must establish that testimony from a witness is a “real memory” of an event, rather than a dream; a witness’ dreams are not admissible because it is not an accurate representation of a true event. If the proponent cannot show a “real memory” of the event, then the witness is not competent to testify about it. See Ladd v. Bowers Trucking, Inc., 2011 UT App 355, 264 P.3d 752. Likewise, hypnotically enhanced memories or other memories enhanced by other therapeutic techniques are not admissible; again, because there is no way to know if the witness’ testimony is a true and accurate representation of an actual event, or was instead the product of suggestion by others. See, e.g., Olsen v. Hooley, 865 P.2d 1345, 1349-50 (Utah 1993); State v. Mitchell, 779 P.2d 1116, 1118-1119 (Utah 1989); State v. Tuttle, 780 P.2d 1203 (Utah 1989). Indeed, the purpose of the witness exclusion rule in court proceedings is “to prevent witnesses from being influenced or tainted by the testimony of other witnesses, or other evidence adduced at trial.” Pope v. Pope, 2017 UT App 24, ¶ 19, 392 P.3d 886, 892. See also, Utah R. Evid. 615; State v. Billsie, 2006 UT 13, ¶ 10, 131 P.3d 239, 241 (“purpose behind rule 615 is ‘directed toward preventing witnesses from changing their testimony based on other evidence adduced’”); State v. Cramer, 2002 UT 9, ¶ 31, 44 P.3d 690 (same); Astill v. Clark, 956 P.2d 1081, 1087 (Utah App.1998) (“The purpose behind excluding witnesses … is to prevent witnesses from being influenced or tainted ….”). In such circumstances, courts abuse their discretion in allowing a witness to testify despite a violation of the exclusionary rule when it is demonstrated that the witness changed his or her testimony in some material way because of what he or she heard. See id. (quoting and citing authority).

Overall, the exclusion of unreliable testimony is required because a defendant is unable to rely on cross-examination. The admission of unreliable memories or perceptions are particularly dangerous because they are not susceptible to usual cross-examination techniques since a witness whose memories or perceptions have been tainted in some way either harbors a false memory and is unaware of its false nature and actually believes it is an accurate and true experience, or has been tainted in such a way that allows the witness to be able to convincingly “explain away” any inconsistencies.

Although the requirements of due process are “the floor,” courts can and should use the Rules of Evidence to make trials as fair and clear as possible. Even if it may be argued that this Proposed Rule goes beyond current constitutional requirements, it is based upon the most current scientific consensus about eyewitnesses and best practices. The courts can and should use the best information it has access to in making the rules that govern what and how evidence is admitted. With this in mind, the Proposed Rule would enhance the accuracy and value of eyewitness identification evidence at the trial court level, and at least try to ensure fealty to due process guarantees that only reliable evidence is presented to a jury. Much like Rule 616 on recording custodial interrogations, the proposed rule would encourage the use of best practices by law enforcement to reduce the likelihood of misidentification and enable proper judicial gate-keeping to prevent the admissibility of unreliable evidence.

Other state supreme courts have also moved beyond the “Manson reliability test” established by the U.S. Supreme Court in 1977 to adopt a scientifically based legal framework for assessing and treating eyewitness identification evidence. See, e.g., Com. v. Johnson, 420 Mass. 458, 471, 650 N.E.2d 1257, 1264 (1995) (“The [Manson] reliability test hinders, rather than aids, the fair and just administration of justice by permitting largely unreliable evidence to be admitted directly on the issue of the defendant’s guilt or innocence.”); State v. Henderson, 208 N.J. 208, 285, 27 A.3d 872, 918 (2011) (concluding, following an extensive evidentiary hearing, that “assumptions and other factors reflected in the . . . Manson test” are no longer valid); State v. Lawson, 291 P.3d 673, 690 (Or. 2012) (concluding, “[i]n light of the scientific findings” that the state law version of the Manson test “is not adequate to the task of ensuring the reliability of eyewitness identification evidence that has been subjected to suggestive police procedures” and must be revised); Young v. State, 374 P.3d 395, 412 (Alaska 2016) (“Because the [Manson] test does not adequately protect the right to due process under the Alaska Constitution, we adopt a new approach to deciding the admissibility of eyewitness identification evidence in future cases.”); State v. Harris, 330 Conn. 91, 115, 191 A.3d 119, 134 (2018) (concluding, as a matter of state constitutional law and in light of social science research, that the factors used to test reliability in the Manson test are insufficient to protect a defendant’s due process rights).

The Proposed Rule would ensure that fact-finders assess both estimator variables (circumstances associated with the crime such as lighting, distance, cross-racial factors that cannot be controlled by law enforcement) and system variables (factors under the control of law enforcement such as the identification procedures) that affect eyewitness perception, memory and identification. While science evolves over time, the rule incorporates over three decades of applied research findings that were confirmed in the landmark report issued in 2014 by the National Research Council, the nation’s leading independent scientific-entity. By enhancing the reliability and value of eyewitness identification evidence, the Proposed Rule will protect innocent defendants against wrongful conviction and avoid appeals and other litigation based on claims of erroneous eyewitness identification.

The Utah Rules of Evidence Committee did an excellent job of drafting Proposed Rule 617 and we hope it will be fully adopted.

Utah Association of Criminal Defense Lawyers
Board of Directors

“let them bring forth their witnesses, that they may be justified: or let them hear, and say, It is truth.” Isaiah 43:9, Old Testament, King James Version

This comment on behalf of the Salt Lake County District Attorney’s Office is in response to the Utah Supreme Court invitation regarding proposed URE0617 to the Utah Rules of Evidence, Eyewitness Identification. The proposed rule will stack fact-dependent concepts that parties have and should litigate on case-by-case bases into a wall that will prevent accurate eyewitness testimony from being heard by juries in some cases.

Due process requires the State to shun practices that taint the investigatory process. Rules that exclude evidence of guilt deter government actors from adulterating evidence or violating the fundamental rights of people under investigation. At the same time, exclusionary rules also prevent fact finders from receiving evidence that the defendant is guilty. Since exclusionary rules interfere with the truth-seeking purpose of the criminal justice system, they must be narrowly tailored to incentivize appropriate government conduct and minimize the detrimental impact on public safety.

Proposed URE0617 is too broad because it forces judges to prevent juries from ever receiving eyewitness testimony, regardless of government conduct, if the judge decides the jury “could not reasonably rely on the eyewitness identification.” It also requires judges to exclude every identification procedure by the state deemed to be “unnecessarily suggestive or conducive to mistaken identification” unless the court explicitly finds “there is not a substantial likelihood of misidentification.” This new barrier to prevent juries from receiving evidence may be intended to guide police department practices but it will also have the consequence of decreasing public confidence in criminal justice by directing courts to exclude relevant and probative evidence identifying perpetrators. For over fifty years Utah’s law regarding hearsay has permitted juries to consider statements identifying a person as someone the declarant perceived earlier. See URE 801(d)(1)(C), State v. Owens 15 Utah 2d 123 (1964). This proposed rule will thrust a half-century of law into doubt. The rest of this comment identifies specific concerns about the rule in chronological order.

A. The definitions in proposed Rule 617(a) are inconsistent with terminology in current research, case law, statutes, and rules.

1. The proposed definition of “eyewitness identification” is that it “means witness testimony or conduct in a criminal trial that identifies the defendant as the person who committed a charged crime.” There are two problems with this definition. First, it is so broad it includes any evidence offered by a witness identifying the defendant as the offender regardless of the way that witness came to identify the offender. The definition conflates two distinct concepts: visual recognition of an offender whether in or out of court and what the United States Supreme Court has referred to as “in-court identification.” Gilbert v. Cal. 388 US 263 (1967). Witnesses may base in-court identification on visual recognition of an offender, but they could also base identification on audio recognition, forensic evidence, or a variety of other methods. This proposed definition wrongly treats visual recognition of an offender and in-court identifications as the same. Second, the definition restricts the term to applying only “in a criminal trial.” If courts interpret this phrase as meaning during a criminal trial, every challenge under proposed Rule 617(b) will not be ripe until the trial has begun. The result will be longer trials and potentially result in jeopardy attaching to prosecutions before a judge rules on the admissibility of key evidence of a defendant’s guilt even if prosecutors could address the issue by collecting or introducing alternative evidence if they had sufficient notice.

B. Rule 617(b) should not mandate excluding evidence.

1. Proposed Rule 617(b) directs that “In cases where eyewitness identification is contested, the court shall exclude evidence if a factfinder…could not reasonably rely on the eyewitness identification.” The mandatory “shall” mutates proposed Rule 617 from being part of a truth-seeking exercise into a justice thwarting one. Paragraph (b) lists factors that the court ought to consider when deciding to exclude the testimony of a witness. The list originates from the standard eyewitness identification expert concerns codified into the Long instruction. However, paragraph (b) does not offer guidance on how a judge should use these factors when deciding a jury cannot be trusted. Up until now, case law has directed consideration of the totality of the circumstances. See Gallegos, 2016 UT App 172 ¶ 35 quoting Ramirez, 817 P.2d 781. Utah’s Court of Appeals has applied this test in two other cases since Gallegos: State v. Reyes, 2018 UT App 134 and State v. Craft, 2017 UT App 87. The language in proposed Rule 617 does not direct judges to consider the totality of circumstances, is just lists factors. Worse, the language in those factors is susceptible to confusion and contradicts the science of eyewitness identification.

2. Proposed Rule 617(b)(2) places an unjustified focus on weapons. It contradicts scientific research by directing courts to weigh eyewitness reliability by considering possible distraction by weapons. A meta-analysis of weapons-focus literature summarizes concluded the following: “A more recent analysis of the weapon focus literature concluded that the presence of a weapon has an inconsistent effect on identification accuracy, in that larger effect sizes were observed in threatening scenarios than in non-threatening ones. As the retention interval increased, the weapon focus effect size decreased. The analysis further indicated that the effect of a weapon on accuracy is slight in actual crimes, slightly larger in laboratory studies, and largest for simulations.” Identifying the Culprit: Assessing Eyewitness Identification (2014) from the National Academies of Science (cited in the proposed committee note) (emphasis added).

By listing “weapon” as the only example in the rule of distraction impairing a witness’ attention, judges will automatically accord special weight to the presence of a weapon in a crime. The literature discusses other specific distractions, such as lighting conditions, stress, and fear, but there are many variables which may distract, including noise level, other activities in the vicinity, other people’s presence and their relation to the event or witness, or words used by the perpetrator. The list of possible distractions is endless, yet the rule only specifically mentions “weapon.” The drafters of the proposed rule wisely avoided adding one specific example of a general principle in proposed subsection (b)(1). For example, adding “wearing a mask” to (b)(1) would draw disproportionate attention to one scenario and risk courts conflating the principle of an adequate opportunity to observe with looking for one situation. Any rule should also avoid that mistake on the issue of possible distractions.

To the extent that policies can guide behavior, it is contrary to public policy to offer an additional benefit to offenders who threaten their victims with guns that will not be available to offenders who do not. Under proposed (b)(2), criminals who brandish a weapon in a threatening, distracting manner will be less likely to have eyewitness testimony admitted against them.

3. Proposed Rule 617(b)(5) directs judges to use race as a reason to silence witnesses. Proposed subparagraph (b)(5) directs judges to consider “Whether a difference in race or ethnicity between the witness and suspect affected the identification.” Race should never be a justification for a judge to prevent a witness from testifying to a jury. Subparagraph (b)(5) aims at the well-established cross-race effect (CRE) of impairing identification performance, but recent research indicates the CRE is inconsistent among races and is significantly affected by the intercultural competence of the witness. See, e.g., Evelyn M. Maeder et al., What makes race salient? Juror Decision-making in same-race versus cross-race identification scenarios and the influence of expert testimony, Crim. Just. Behav. (2018) Geraldine Rosa Henderson et al., Intercultural competence and customer facial recognition, J. Serv. Mark., (2018) Vol. 32 Issue: 5, pp.570-580.

Jurors should be made aware of CRE, but by directing a judge to consider blocking evidence whenever the witness’ race differs from the defendant’s, courts run the risk of segregating justice. Cross-racial identification bans will swing both directions and will prevent a Latina victim from telling a jury about her Caucasian assailant as surely as an Asian witness from testifying about an African-American defendant. This facially neutral policy runs the risk of exacerbating racial disparity. Utah’s recent Justice Reinvestment Initiative simultaneously led to decreased incarceration rates generally and increased the incarceration rates of racial minorities. This proposed rule will impair the pursuit of justice in criminal cases involving multiple races. Preventing juries from hearing cross-racial identification testimony should not be expected to increase justice.

4. Proposed Rule 617(b)(8) ignores the increasing role of modern technology and social media. This subsection directs courts to consider “[w]hether the witness was exposed to opinions, photographs, or any other information or influence that may have affected the independence of the witness in making the identification.” In this age of ubiquitous smartphones, Google, and social media, aggrieved victims and friends often conduct independent investigations of violent crime and subsequently identify a suspect before alerting police to the identification. Proposed Rule 617(b) is independent of any allegation of tainting by the State. Suppressing identification evidence offers an extreme remedy to perpetrators without providing law enforcement any meaningful way to prevent the same thing from happening again in the next case.

C. Proposed Rule 617(c) wrongly equates deviation from fact-specific practices as unnecessarily suggestive.

1. Proposed Rule 617(c)(1)(A) directs judges to evaluate the suggestiveness of photo arrays and live lineups by whether law enforcement follows double-blind procedures. Double-blind procedures are feasible for photo arrays but impracticable for live lineups, so lineups will automatically be suspect under the proposed rule. In the absence of a double-blind procedure, the rule directs judges to consider whether verbal or physical cues produced identification, but such direction wrongly assumes that standard recordings will capture physical cues during a lineup or photo array.

2. Proposed Rule 617(c)(1)(B) lists four important instructions to give prospective witness during lineups and photo arrays. The rule is unclear about whether the absence of any of the four instructions is enough to force exclusion of the evidence.

3. Proposed Rule 617(c)(1)(C) establishes rules for selecting the composition of photo arrays or lineups but in doing so treats the witness’ description of the perpetrator and the characteristics of the defendant as equally important. For example, a recent case involved a witness identifying a perpetrator as “Mexican,” but the defendant self-identified to the officer preparing a lineup as African American, this proposed rule will leave that officer in a quagmire. Whether the officer selects Mexicans, African-Americans, or a mix of both as the extra participants in the lineup, that officer cannot simultaneously match the witness’ description of the perpetrator and the race of the defendant. Accordingly, that lineup will necessarily be “unnecessarily suggestive” under this proposed rule.

4. Proposed Rule 617(c)(1)(E) dumps all cases with multiple identification procedures into the bucket of being unnecessarily suggestive, but the rule fails to acknowledge the most frequent reason for multiple identification procedures: a defendant requests a second identification procedure. Under the proposed rule, defense attorneys who request a second identification procedure will also be making the original identification procedure “unnecessarily suggestive” and subject to exclusion.

D. Proposed Rule 617(d)(1) creates an unnecessary additional hurdle. This proposed subsection only allows a jury to consider photos used in an identification procedure if “the prosecution has demonstrated a reasonable need for the use.” Relevant evidence is generally admissible under rule 402, and a witness’ identification of the perpetrator is always relevant. Accordingly, the photos from a photo array identifying the defendant will always be relevant to the finder of fact. This ambiguous addition that the prosecution must demonstrate a “reasonable need” before the jury can receive evidence the defendant was the perpetrator does not serve the truth-seeking function of the courts and will not avoid wrongful convictions, but it may prevent rightful convictions.

E. Proposed Rule 617(e) and (f) create a built-in conflict. Subparagraph (e) states that the court may admit eyewitness expert testimony and subparagraph (f) directs the court to instruct the jury with the Long factors. However, whenever an expert testifies, there is an instruction that the jury may disregard the expert testimony. Meanwhile, the Long instruction contains much of an expert witness’s testimony. Thus, a jury might choose to disregard the testimony of an expert and therefore the corresponding jury instruction. These two subsections become irreconcilable since a jury must accept all instructions. Either an expert should testify, or the court should give the Long instruction. Never both.

Law enforcement must seek the truth without tainting the investigatory process. Similarly, the rules of evidence should focus on bringing truth to the finders of fact without omitting vital evidence of what occurred. Proposed URE0617, while admirable in the intent to prevent wrongful convictions, will prevent juries from receiving evidence of perpetrators’ guilt. It will do so without increasing the accuracy of the evidence a jury will receive. It contains definitions that are overbroad, standards that are inapplicable to best practices, built in contradictions, and hurdles that confuse a defendant’s due process rights with an ability to avoid accountability. The Utah Supreme Court should reject this rule and continue permitting judges to apply existing law in determining whether to admit or suppress eyewitness identification.

William J. Carlson
Chief Policy Advisor/Deputy District Attorney
Justice Division
Salt Lake County District Attorney’s Office

The Innocence Project is a national organization dedicated to exonerating the wrongfully convicted and to pursuing legislative, judicial and administrative reforms that prevent and address wrongful convictions of the innocent. The Rocky Mountain Innocence Center (RMIC) works to exonerate the wrongfully convicted in Utah, Nevada and Wyoming.

Our organizations commend the Utah Supreme Court’s Advisory Committee on the Rules of Evidence for proposing Rule 617 (the “Proposed Rule”) and encourage its adoption by the Judicial Council. Based on exonerations of the innocent and nearly four decades of robust social science, we believe that the Proposed Rule will prevent wrongful convictions involving eyewitness misidentification in the state of Utah.

I. Wrongful Convictions Involving Eyewitness Misidentification

Eyewitness misidentification is a leading contributor to the wrongful convictions of innocent Americans, playing a role in 70 percent of the nation’s 364 DNA exonerations. In about 50 percent of our cases, our work exonerating innocent people has led to the identification of the true perpetrators. In the eyewitness misidentification cases, the actual perpetrators in these wrongful convictions went on to commit and be convicted of 24 additional violent crimes, including 16 rapes and two murders.

Mistaken eyewitnesses – particularly crime victims – suffer doubly when DNA demonstrates that the real perpetrator was not the person they identified. Wrongful convictions destroy lives and represent a serious threat to public safety. Science-based fixes designed to address the leading contributing causes of wrongful conviction – like the Proposed Rule – are crucial to preventing future wrongful convictions and ensuring public safety.

In Utah, mistaken eyewitness identification contributed to the wrongful convictions of Bruce Goodman and Harry Miller. Both men lost a combined 25 years in prison for crimes they did not commit until they were exonerated with representation from the Rocky Mountain Innocence Center. Maurice Possley, Bruce Dallas Goodman, Innocence Project, https://www.innocenceproject.org/cases/bruce-dallas-goodman/. Their wrongful convictions had a ripple effect of harming the innocent and their families, allowing the actual assailants to remain undetected, and costing taxpayer dollars to fund state compensation for their wrongful convictions.

In 1986 Goodman was convicted of murdering Sherry Ann Fales Williams in Beaver, Utah. Two eyewitnesses claimed that they saw Goodman and Williams together within 24 hours of the discovery of her body and jurors were told that the rope used to bind Williams was the same rope used where Goodman worked. Goodman was sentenced to five years to life in prison. In 2002, DNA testing was conducted on the rape kit and fluids found in the snow at the crime scene and the results excluded him. In 2004, upon the recommendation of the Utah Attorney General’s Office, Goodman’s conviction was vacated and the case was dismissed. Possley, supra. (In 2015, the State of Utah stipulated to a posthumous finding of actual innocence for Mr. Goodman as well as compensation for the time he spent wrongfully incarcerated). Our Exonerees: Bruce Dallas Goodman, Rocky Mountain Innocence Project, http://rminnocence.org/our-exonerees/bruce-dallas-goodman.html.

Harry Miller spent four years in prison for aggravated robbery. In 2000, a white woman was robbed at knifepoint at a store in Salt Lake City, and three years later she saw Miller, who is African-American, in a photo lineup and identified him to police as the robber. The victim again identified him in a live lineup and in court. Miller told police that he had lived in Louisiana since 2000 and suffered a stroke two weeks before the crime that made him unable to drive. His in-home nurse said she had visited him in Louisiana the day before the crime. Miller’s attorney failed to call any of his alibi witnesses. In 2007 Miller was granted a motion for a reversal of his conviction, and the district attorney dismissed all charges before retrial. Stephanie Denzel, Harry Miller, The National Registry of Exonerations, https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3468. On September 11, 2011, the State stipulated to Mr. Miller’s factual innocence and provided compensation for the time he was wrongfully incarcerated. Our Exonerees: Harry Miller, Rocky Mountain Innocence Project, http://rminnocence.org/our-exonerees/harry-miller.html.

II. Rule 617 Enhances the Accuracy & Value of Eyewitness Identification Evidence

Proposed Rule 617 reflects decades of peer-reviewed social science research and is based on recommendations by the National Research Counsel, the U.S. Department of Justice, the International Association of Chiefs of Police, the American Bar Association and other organizations. In addition to ensuring the admissibility of eyewitness identification evidence that is reliable, the Proposed Rule would facilitate the use of evidence-based practices by law enforcement. If adopted, Rule 617 would be one of the nation’s strongest measures to improve the accuracy and value of eyewitness identification evidence.

Improving the value of eyewitness identification evidence in court. Rule 617 offers protections against unreliable eyewitness identification evidence at the trial court level.

The Utah Supreme Court has long been a leader in addressing the risk of eyewitness misidentification by incorporating this scientific research into its decisions addressing the evaluation and treatment of eyewitness identification evidence and ensuring that jurors have sufficient context—whether through expert testimony or jury instructions or both—to evaluate eyewitness identification evidence. See, e.g., State v. Long, 721 P.2d 483, 487-95 (Utah 1986); State v. Ramirez, 817 P.2d 774 (Utah 1991); State v. Clopten, 223 P.3d 1103 (Utah 2009).

Rule 617 provides an important new tool that will ensure that factfinders evaluate identification evidence in light of established social science findings. It would implement an evidentiary framework for the treatment of challenged identification evidence that is based on a modern scientific understanding of visual perception and memory and that reflects the many factors science has shown can affect the reliability of an identification. In addition, the rule adopts nearly all of the National Research Council’s recommendations for best practices for law enforcement and for strengthening the value of eyewitness evidence in court including, critically, allowing expert testimony and jury instructions, if requested, to assist triers of fact in understanding the variables that may influence a witness’ visual experience of an event and the factors that underlie the formation, storage and recall of memory.

With the adoption of Rule 617, Utah will join a growing number of states that have incorporated scientific research into the judicial review and treatment of eyewitness identification evidence. The supreme courts of New Jersey, State v. Henderson, 208 N.J. 208, 27 A.3d 872 (2011); Oregon, State v. Lawson, 352 Or. 724, 291 P.3d 673 (2012); Alaska, Young v. State, 374 P.3d 395 (Alaska 2016); Massachusetts, Com. v. Thomas, 68 N.E.3d 1161 (Mass. 2017); and Connecticut, State v. Harris, 191 A.3d 119 (Conn. 2018), have each issued landmark decisions that modify existing legal standards for the evaluation of identification evidence to make them consistent with scientific research. Other state supreme courts have reviewed and accepted the scientific research on a range of issues, including system and estimator variables that can affect the reliability of a witness’s memory and the accuracy of a witness’s identification. See Com. v. Walker, 92 A.3d 766, 782-83 (2014) (collecting cases from 44 states, the District of Columbia, and 10 federal circuit courts permitting expert testimony); State v. Guilbert, 49 A.3d 705, 721–25 (Conn. 2012) (collecting cases and studies demonstrating that the scientific research is well-settled and largely unknown to fact finders). In addition to making expert testimony available in many cases, id., some courts have issued substantially more robust, science-based identification instructions that offer jurors clear guidance for evaluating identification evidence, see New Jersey Identification Instruction (July 19, 2012), http://www.judiciary.state.nj.us/pressrel/2012/jury_instruction.pdf; Massachusetts Model Eyewitness Identification Instruction (Nov. 2015), http://www.mass.gov/courts/docs/courts-and-judges/courts/district-court/jury-instructions-criminal/6000-9999/9160-defenses-identification.pdf, while others have strictly limited in-court identifications or other aspects of a witness’s testimony. See State v. Dickson, 141 A.3d 810 (Conn. 2016); Com. v. Crayton, 21 N.E.3d 157 (Mass. 2014); Com. v. Collins, 21 N.E.3d 528 (Mass. 2014); State v. Lawson, 291 P.3d 673 (Or. 2012). These decisions, like Rule 617, reflect decades of scientific research and improve both the reliability of eyewitness identification admitted at trial and factfinders’ evaluation of that evidence.

Incentivizing law enforcement to use evidence-based procedures: Like Rule 616 on recording custodial interrogations, adopted by the Utah Judicial Council in 2016, the Proposed Rule strongly incentivizes statewide adoption of best practices by law enforcement. This will help to facilitate more accurate eyewitness identifications, preventing wrongful convictions and enhancing law enforcement investigations.

The evidence-based identification practices for lineups and show-ups listed in the proposed rule are supported by decades of social science research and include: double-blind administration of the procedure; prophylactic pre-procedure instructions to the eyewitness that the perpetrator may or may not be present and the investigation will continue regardless of whether or not an identification is made; selection of fillers that match the eyewitness’s description of the perpetrator and do not make the suspect noticeably stand out; documenting the eyewitness’s level of confidence in his or her identification and any other responses; ensuring separate procedures for different eyewitnesses; avoiding involving the same witness to multiple . procedures; and recording eyewitness identification procedures to preserve a permanent record of the conditions associated with the initial identification

Four of these evidence-based procedures – double-blind administration; prophylactic pre-procedure instructions; selection of fillers that match the eyewitness’s description of the perpetrator and do not make the suspect noticeably stand out; and documenting the eyewitness’s level of confidence in his or her identification – have been successfully implemented by 22 states through a high court decision or rule, statute or voluntary adoption of written policies by the majority of law enforcement agencies. (States that have adopted four key evidence-based practices: California, Colorado, Connecticut, Georgia, Hawaii, Louisiana, Maryland, Massachusetts, Michigan, Montana, Nebraska, Nevada, New Hampshire, New Jersey North Carolina, Ohio, Oregon, Rhode Island, Texas, Vermont, West Virginia, Wisconsin). Recording the identification procedures is required by statute in California, Georgia, Illinois Louisiana, and North Carolina. CA Chap 977 (2018); Ga. Code Ann. §17-20-1, et seq (2015); IL ST CH 725 § 5/107A-0.1 (eff. 2014, amend. 2015); LSA-C.Cr.P. Art. 251; N.C. Gen Stat. § 15A-284.52 (2008, amend. 2015)

Utah law enforcement agencies have already been exposed to best practices for administering eyewitness identification procedures. The Innocence Project and RMIC provided the Salt Lake Sheriff’s Unified Police Department and the Salt Lake City Police Department with in-person training in 2015. In addition, the Innocence Project offers free tools that can assist Utah law enforcement agencies with implementation including training videos produced with the International Association of Chiefs of Police, policy-writing guides and model policies from other jurisdictions.

Proposed Rule 617 would provide an excellent legal framework for improving the evidentiary value of eyewitness identification evidence and, if a misidentification does occur, preventing a wrongful conviction. The potential benefits of this rule have been demonstrated in other states that have adopted similar reforms: the innocent and crime victims would be protected, law enforcement would have more accurate and reliable evidence to assist in investigations and keep communities safe, and taxpayer funds would be spared from state compensation and civil payments stemming from wrongful convictions. The Innocence Project and Rocky Mountain Innocence Center strongly encourages the Utah Judicial Council to adopt the Proposed Rule.

Dear Members of the Utah Judicial Council:

I am a crime victim whose case resulted in a wrongful conviction due to flawed eyewitness identification procedures. I can personally attest to the trauma and suffering caused to crime victims when the wrong person gets convicted and the true perpetrator goes free. Based on my experience, I urge the Utah Judicial Council to adopt Proposed Rule 617, which will improve the accuracy of our criminal justice system and protect everyone – the innocent and their families, the original crime victims and their families, and the general public – from failed justice.

My experience and advocacy stem from a brutal sexual assault that I survived when I was in college in North Carolina. During the attack, I focused on staying alive and attempted to memorize the features of my attacker so that I might be able to identify him if I lived. I would only learn later that memory is often compromised by the violence and trauma of such an attack. I would also learn that the traditional eyewitness identification procedures used by police following my attack, which were aimed at helping me identify the perpetrator, often unwittingly cause victims and other witnesses to mistakenly choose the wrong person.

Specifically, following my attack police investigators asked me to create a composite sketch of my attacker. Unknown to me, someone reported an individual who resembled the sketch, a man named Ronald Cotton. Police then included that man in both the photo line-up and live line-up I was asked to view. I did my best under the circumstances to choose the person who most resembled the composite sketch that had been created from my memory. The eyewitness identification process through which I was led convinced me that I had succeeded in identifying my attacker. A decade later, I was devastated to learn that DNA testing proved that someone else had committed the crime against me – and that person, Bobby Poole, had gone on to commit additional rapes while the innocent man, Ronald Cotton, languished in prison. The criminal justice system had failed both Ronald and me, as well as the other victims of Bobby Poole.

For many years now, Ronald and I have worked together around the country to advocate for implementation of evidence-based practices to improve the accuracy of identification evidence. Rule 617 would address many of the faulty investigative procedures that led to failed justice in our case and would, thereby, help to ensure that crime victims are served true justice and the public kept safe. As such, I applaud the Utah Supreme Court’s Advisory Committee on the Rules of Evidence for proposing this excellent measure, and I urge that it be adopted.

Thank you for your time and consideration.

Jennifer Thompson
Founder, Healing Justice
Co-Author, Picking Cotton
Commissioner, North Carolina Innocence Inquiry Commission