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The Telfaire instruction

One of the things I like about doing this blog is that I learn new things all the time.  Yesterday I learned about the Mr. Potato Head cross-examination of a person giving eyewitness testimony at trial:

Q: You didn't describe his eyes?

A: No.

Q: You didn't describe his ears?

A: No.

Q: You didn't describe his nose?

A: No.

Q: You didn't even describe his little mustache?

A: No.

Q: Nothing further!

At this point you stalk back to the counsel table, drop your pad, and sit down. During closing argument, you produce a Mr. Potato Head and remove his features, one by one.

The only problem is, it rarely works.

Anybody familiar with the criminal justice system knows that mistaken identifications are the leading cause of wrongful convictions.  Of the first 225 cases in which DNA tests exonerated someone convicted of a crime, 173 involved eyewitness misidentification.  The reason for that is that jurors generally regard eyewitness testimony as the most reliable, when in fact it's the least reliable.

One of the supposed remedies for that is the Telfaire instruction, named after a 1972 DC Circuit case, which focuses on the identification testimony at trial.  As the 10th District's decision last week in State v. DeJoy notes, while the Ohio Supreme Court has approved the language of the instruction, it has not mandated its use, instead leaving that up to "the sound discretion of the trial court."  That's not that outlandish; ironically, in Telfaire the appellate court upheld the trial judge's refusal to give the instruction (on an abuse of discretion standard), finding that the facts in that case didn't warrant it.  There's a 1982 case out of the 10th District, State v. Dale, where the appellate court reversed, finding that the trial judge should have given the Telfaire instruction because of the infirmities in the eyewitness testimony, rather than just the general instruction on credibility of witnesses. 

There aren't many decisions like Dale, because after that the Ohio Jury Instructions on credibility of witnesses were modified to include a section on eyewitness testimony.  As you can see, it's substantially shorter than the Telfaire instruction, and not nearly as defense-friendly:  it doesn't mention factors which might go into the opportunity to observe (lighting conditions, whether the witness and defendant were strangers), the problems with a show-up, and so forth.  But that was the instruction given in DeJoy, and the 10th District held that was sufficient.  It's hard to read DeJoy as saying anything other than that a trial court isn't going to be reversed for refusing to give the Telfaire instruction, as long as it gives the eyewitness portion of the instruction on general credibility.

And that actually might be a good thing, because in some ways the OJI instruction is better than the Telfaire instruction.  The real problem with the latter is that it was developed over thirty years ago, and much of the subsequent research on eyewitness identification shows it stresses factors which really aren't much help in determining the reliability of the identification.  (Manson v. Brathwaite, the decision which specified the factors for determining whether an identification was reliable, came out just five years later, and contained many of the same factors.)  For example, one of the factors is the "strength of the identification."  I'm sure we've all had situations where the witness says he's 100% certain, of that "I'll never forget that face."  In fact, tests show that the degree of confidence a witness has in his identification has nothing to do with its reliability.  Indeed, tests also show that the confidence increases over time (the exact reverse of how memory actually works), and that the witness may also "remember" that the circumstances surrounding the identification, such as the the lighting, proximity to the person observed, were better than they actually were.

So what to do?  Some lawyers have proposed even more detailed instructions on identification testimony, including things like "weapon focus" (the tendency of a witness to focus on a weapon, instead of the perpetrator) and cross-racial identifications.  That's certainly worth exploring if you get the right judge, but if you get the wrong one, your chances of winning reversal on appeal are virtually nil.  Another approach is to reform the police procedures used for obtaining identifications, as Ohio did last year with the enactment of RC 2933.83.  Even that has limitations; it doesn't apply to showups, without question the most problematic identification procedure.  What's more, it could even make the situation worse.  The biggest reason for wrongful identification isn't procedure, it's the inherent inaccuracy of eyewitness testimony, particularly regarding the identification of strangers.  Focusing on the procedure could simply lead juries and judges to believe that if the procedure was followed, the identification must be reliable.

In fact, the best method of making jurors understand the pitfalls of identifications is through expert testimony on its pitfalls.  The Tennessee Supreme Court focused on that just a  few years ago in State v. Copeland, reversing a death penalty conviction because the judge had excluded expert testimony regarding the eyewitnesses.  The court concluded that "expert testimony on memory and eyewitness identification is the only legal safeguard that is effective in sensitizing jurors to eyewitness errors."  (The opinion contains a gold mine of references to sociological and behavioral research on the topic.) 

And no money?  No problem!  There are a couple of nice decisions, like the 8th District's in State v. Bradley and the 1st District's in State v. Sargent, which held that a trial court abused its discretion in refusing to allow funds to an indigent defendant to hire an expert witness on identification.  (Bradley discussed here.) 

You'll probably get better results with that than with pushing the Telfaire instruction.  Or going out and buying a Mr. Potato Head.

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