State v. Martinez

Office of the Director New Mexico

12:34:42 2021.01.25 Compilation

'00'07- Commission

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2021-NMSC-002

Filing Date: November 19, 2020

No. S-1-SC-36502

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

RICARDO MARTINEZ,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY

T. Glenn Ellington, District Judge

Released for Publication January 26, 2021.

Bennett J. Baur, Chief Public Defender

Allison H. Jaramillo, Assistant Appellate Defender

Santa Fe, NM

for Appellant

Hector H. Balderas, Attorney General

Eran Shemuel Sharon, Assistant Attorney General

Santa Fe, NM

for Appellee

OPINION

VIGIL, Chief Justice.

{1} Convicted of two counts of murder in the first degree, Defendant Ricardo

Martinez seeks reversal and a new trial on grounds that the district court erred by (1)

denying his motion to suppress out-of-court and in-court identification testimony, (2)

excluding witness testimony, thereby depriving him of the ability to present a complete

defense, (3) admitting prior bad acts evidence under Rule 11-404(B) NMRA, and (4)

refusing to charge the jury in accordance with his requested instructions on the use of

informant testimony.

{2} With respect to the eyewitness identification issue, Defendant challenges the

continued viability of the prevailing federal rule, as articulated in Manson v. Brathwaite,

432 U.S. 98 (1977), governing the admission of identification evidence. Under Manson,

courts apply a two-part test to determine the admissibility of eyewitness identification

evidence, addressing first whether police identification procedures were “unnecessarily

suggestive” and, if so, weighing specified factors in deciding the “linchpin” issue of

whether the eyewitness identification was nonetheless sufficiently reliable to satisfy

federal due process requirements. See id. at 113-14. Although the Manson reliability

test has been widely adopted among state courts, including our own, see, e.g.,

Patterson v. LeMaster, 2001-NMSC-013, ¶ 20, 130 N.M. 179, 21 P.3d 1032; State v.

Baca, 1983-NMSC-049, ¶ 18, 99 N.M. 754, 664 P.2d 360, it has come to face ever-

increasing criticism from legal scholars as a result of major advances in scientific

knowledge of eyewitness memory, perception, and recall, knowledge that contradicts

many of the analytical assumptions underlying the rule.

{3} In light of the significant, recurrent, and deeply troubling problems caused by

unnecessarily suggestive, police-arranged identification procedures, we take this

opportunity to consider our state constitutional jurisprudence as it relates to the

admission of this type of powerful yet problematic evidence in New Mexico courts. We

ultimately hold that the Manson test does not satisfy due process under Article II,

Section 18 of the New Mexico Constitution, and we adopt standards that must be

satisfied before such evidence is admissible.

{4} Although we agree with Defendant that Article II, Section 18 of the New Mexico

Constitution requires departure from the existing federal Manson rule, we affirm the

district court order denying his motion to suppress because (a) the identification

procedures used were not impermissibly suggestive under existing federal standards,

and (b) the evidence presented by Defendant failed to establish prima facie that some

aspect of the identification procedure used was suggestive in nature under our newly-

adopted standards. We also affirm on the remaining issues.

I. BACKGROUND

A. The Homicide of Cisneros and AO

{5} Eighteen-year-old Venancio Cisneros and his thirteen-year-old girlfriend AO had

been shot when they were discovered in Cisneros’s car off a dirt road in Santa Fe on

October 25, 2014. A Santa Fe County Sheriff’s Deputy responding to a medical assist

call based on information that two individuals in a vehicle were unresponsive found

Cisneros and AO, who were deceased when the deputy arrived. Autopsies indicated

that gunshot wounds to the head were the cause of death of both victims. The autopsies

also indicated that the victims’ wounds were consistent with gunshots fired at them by

someone sitting in the back seat of the car. The pathologist could not provide a precise

time of death but stated that the homicides could have occurred after 2:00 p.m. on

October 24, 2014.

B. The Investigation

{6} On November 3, 2014, Santa Fe County Sheriff’s Office Detective David

Jaramillo received a call from Cisneros’s mother. She told Detective Jaramillo that she

met a potential eyewitness named Emilio Benitez and provided Detective Jaramillo with

Benitez’s contact information. Detective Jaramillo contacted Benitez shortly after

receiving this phone call and arranged to speak with him. During their conversation,

Benitez confirmed that he witnessed someone walking away from Cisneros’s vehicle on

October 24, 2014. Later on the same day, Benitez met with Detective Jaramillo and

other police officers at the crime scene to describe what he saw on the day of the

shooting. Detective Jaramillo recorded his interview with Benitez. Benitez stated that

while he was parked in front of his friend’s house, he witnessed a car, later identified as

Cisneros’s vehicle, arrive and park at the location where Cisneros and AO were found

dead. Benitez said he did not see how many people were in the car when it arrived.

Benitez said that soon thereafter, he drove back to his house, which was about two

blocks away, to pick up a battery charger to start a truck at his friend’s house. As he

drove home, Benitez said he heard two gunshots. When Benitez arrived back at his

friend’s house about ten to fifteen minutes later, he said he witnessed someone about

fifty yards away walking away from Cisneros’s vehicle and that he was able to look

straight at this person for a few seconds. Benitez stated that all of this occurred between

1:30 p.m. and 2:00 p.m. on October 24, 2014.

{7} Benitez gave the officers a physical description of the individual he saw. Benitez

described the individual as being young, skinny, and with skin that was a “little dark” and

as having neck and arm tattoos. He also stated that the individual’s hair was about two

inches long and that the individual had a moustache and short goatee. Benitez told the

officers that he did not have good eyesight but that he could recognize the person he

saw if he was shown a picture. After Detective Jaramillo stopped recording his

interaction with Benitez, they continued to talk. Benitez testified that at this time,

Detective Jaramillo showed him five or six “jail photos” of different individuals, including

a picture of Defendant, as Benitez sat in Detective Jaramillo’s vehicle. Detective

Jaramillo disputed showing Benitez photos at this time. Benitez testified that Detective

Jaramillo asked him whether he recognized the person he saw at the scene in any of

the photographs he was shown. Benitez further testified that he identified the person he

saw at the scene of the shooting as one of the individuals in the photos presented to

him by Detective Jaramillo.

{8} On November 3, 2014, Detective Jaramillo interviewed Defendant’s friend Jesus

Rodriguez. After this interview, Rodriguez contacted Defendant. He told Defendant that

the police suspected that he and Defendant murdered Cisneros and AO. Rodriguez also

told Defendant that during the interview, the officers had a picture of Defendant. Upon

learning that he was a suspect, Defendant left Santa Fe and traveled to Colorado

Springs, Colorado, with his uncle Melicendro Martinez.

{9} Detective Jaramillo assembled a photo array and requested that Benitez come to

the sheriff’s office to view the array on November 5, 2014. The array was composed of

six photographsCsome of which were apparently the same photos shown to Benitez two

days before as well as some photos that were new to him. During the presentation of

the photo array, Benitez identified a photo of the person he saw at the scene of the

shooting. Benitez stated that the photograph was of the same individual who he

identified at the scene of the shooting as the person he saw walking away from

Cisneros’s car on October 24, 2014. This was a photograph of Defendant.

{10} Based on Benitez’s identification, Detective Jaramillo prepared an arrest warrant

for Defendant and a search warrant for Defendant’s residence, DNA, and phone

records. Police executed the search warrant for Defendant’s residence on November 7,

2014, and collected five cell phones and a smoking pipe.

{11} On November 12, 2014, the Santa Fe County Sheriff’s Office received a crime

stoppers tip that Defendant could be found at an apartment in Colorado Springs. In

collaboration with the United States Marshals and the Colorado Springs Police

Department, Defendant’s location in Colorado Springs was confirmed. Defendant and

Melicendro were both arrested on November 15, 2014.

{12} Two days later, on November 17, 2014, Detective Jaramillo interviewed

Defendant at the El Paso County Detention Center in Colorado Springs. Defendant

stated that he did not know Cisneros or AO well, that he had met them through friends,

and that he had only known Cisneros for three or four months. Defendant admitted that

he and Melicendro got into Cisneros’s car on the day of the shooting; however,

Defendant consistently asserted that he did not know who killed Cisneros and AO or

why it happened. Defendant stated that while he was in the car, Cisneros dropped

Melicendro off at his girlfriend’s house. Defendant asserted that soon afterwards

Cisneros dropped him off at the house of his friend Gilbert or at Shantel’s house.

{13} On December 9, 2014, Defendant asked to speak with police again to see what

evidence they had against him. Defendant continued to assert that he was innocent and

that he did not know who killed Cisneros and AO.

C. Pretrial Litigation

{14} Defendant filed a motion to suppress the photo identification and any subsequent

in-court identification under the Fifth, Sixth, and Fourteenth Amendments to the United

States Constitution and Article II, Sections 14 and 18 of the New Mexico Constitution on

grounds that Benitez’s “identification was the product of impermissibly suggestive

identification procedures[.]”After a two-day hearing, the district court denied Defendant’s

motion applying the standards set forth in Manson, 432 U.S. 98, and United States v.

Sanchez, 24 F.3d 1259 (10th Cir. 1994).

{15} On October 14, 2016, the State filed a motion to admit evidence, pursuant to

Rule 11-404(B), that on September 4, 2014, following their argument with the cashier at

an Allsup’s store, Defendant and a friend fired shots at the store, and the bullet casings

from that Allsup’s shooting matched the bullet casings found at the scene of the

shooting of Cisneros and AO. After a hearing, the district court granted the State’s

motion.

D. The Trial, Sentence, and Appeal

{16} At trial, the evidence showed that on October 24, 2014, Cisneros and AO got into

Cisneros’s car, drove together to the Rancho Zia Mobile Home Park⸻the

neighborhood in which Defendant lived⸻and arrived at approximately 12:56 p.m.

They parked in front of Defendant’s house and waited there for approximately a half

hour. Multiple phone calls were made and text messages sent between Defendant’s

and Cisneros’s cell phones during this time. At about 1:30 p.m., Defendant and

Melicendro got into Cisneros’s car, and the group left the mobile home park. Cisneros

dropped off Melicendro at the house of his friend Anthony Baca, and Defendant

remained in the car. Baca’s house is approximately an eight-minute drive in normal

traffic from Defendant’s home. From Baca’s house to the crime scene is approximately

another five-minute drive.

{17} Agent Russell Romero, a member of the FBI Cellular Analysis Survey Team,

testified as an expert in historical cell site analysis for “geo-locat[ing]” cell phone usage.

Agent Romero testified that according to his analysis of Defendant’s cell phone records,

at 1:54 p.m. on the day of the shooting of Cisneros and AO, Defendant’s cell phone was

in the area of the scene of the shooting. Agent Romero stated that between 1:56 p.m.

and 2:18 p.m., the location of Defendant’s cell phone moved from the area of the scene

of the shooting to an area near Baca’s house. Defendant’s cell phone remained in that

area from approximately 2:18 p.m. to 2:42 p.m. Then at approximately 2:51 p.m.,

Defendant’s phone location was consistent with being back in the area near his home

until 2:55 p.m., after which the phone moved to a location in the area of the house of

Defendant’s friend Shantel by 3:05 p.m. According to Agent Romero’s testimony, the

phone calls and location data transmitted by Defendant’s cell phone were not consistent

with Defendant being at Shantel’s residence prior to 3:05 p.m.

{18} Evidence presented at trial included Defendant’s DNA that was found on the

exterior rear passenger-side door of Cisneros’s car. An unknown male’s DNA was also

found on the exterior rear passenger-side door, and a different unknown male’s DNA

was found on the interior rear passenger-side door. Defendant has a tattoo on the right

side of his face. Melicendro has a tattoo on the left side of his face. Melicendro and

Baca invoked the Fifth Amendment when called to testify at trial. Benitez identified

Defendant in court as the individual he saw walking away from the scene of the

shooting on October 24, 2014.

{19} The State called Joseph Montoya to testify. Montoya was an inmate at the Santa

Fe County jail with Defendant between May 1 and May 18, 2015. Montoya testified that

he and Defendant were acquaintances during their time incarcerated together and that

on one occasion he had a conversation with Defendant during which he asked

Defendant “[w]hy he had killed those two kids.” Montoya stated that Defendant told him

that he shot them because Cisneros owed him money for cocaine and that Defendant’s

uncle picked him up after the shooting. Montoya also testified that he had originally

heard about the shooting on the news when he was in prison in Santa Rosa.

{20} Prior to trial, Montoya entered into a plea agreement with the State to cooperate

and testify in Defendant’s case. In exchange for his testimony, Montoya agreed to serve

one year of incarceration followed by three years of supervised probation. Prior to

entering into the agreement, Montoya faced 42.5 years of incarceration. Defendant

called Denise Montoya, Montoya’s ex-girlfriend, to testify. She stated that Montoya is a

compulsive liar.

{21} Defendant pursued a theory at trial that individuals other than Defendant were

motivated to kill Cisneros. In support of this theory, Defendant sought to elicit testimony

from Cisneros’s sister, Mirna Cisneros, that two weeks prior to his death, Cisneros told

her, “I stole money from that mechanic that you used to go to” and also showed her

cash and drugs, including marijuana and cocaine. The district court ruled the evidence

was inadmissible under Rule 11-804(B)(3)(b) NMRA for lack of corroborating evidence.

However, the district court also ruled that Mirna was permitted to testify “as to what she

observed” when Cisneros made the statement to her and that Defendant could “argue

that based on the existence of those drugs, and her observation of them, and the cash

that was available” that “Cisneros was involved in some way in the drug trade, and that

there were other individuals that may be wanting to harm him.”

{22} Consistent with the district court’s ruling, Mirna took the stand and testified that in

the weeks prior to his death, Cisneros showed her cocaine, marijuana, and cash. In

closing arguments to the jury, Defendant maintained that evidence was presented

showing that individuals other than Defendant had the motive to kill Cisneros. At the

close of evidence and arising from Montoya’s testimony, Defendant proffered a jury

instruction on informant testimony based on the Tenth Circuit Criminal Pattern Jury

Instruction 1.14, which the district court refused. The jury was given an instruction

addressing witness credibility modeled after UJI 14-5020 NMRA, which stated,

You alone are the judges of the credibility of the witnesses and the weight

to be given to the testimony of each of them. In determining the credit to

be given any witness, you should take into account the witness’s

truthfulness or untruthfulness, ability and opportunity to observe, memory,

manner while testifying, any interest, bias or prejudice the witness may

have and the reasonableness of the witness’s testimony, considered in the

light of all of the evidence in the case.

{23} The jury returned verdicts convicting Defendant of two counts of first-degree

murder. He was sentenced to two consecutive life terms. Defendant appeals directly to

this Court. N.M. Const. art. VI, ' 2. (“Appeals from a judgment of the district court

imposing a sentence of death or life imprisonment shall be taken directly to the supreme

court.”); Rule 12-102(A)(1) NMRA.

II. DISCUSSION

A. Admissibility of the Eyewitness Identification Evidence

{24} Defendant argues that under existing New Mexico law, which applies the

standard under the United States Constitution as stated in Manson, the district court

erred in denying his motion to suppress Benitez’s out-of-court and in-court identification

of him as the individual Benitez saw walking away from the scene of the shooting.

Alternatively, Defendant urges this Court to construe the due process provision of the

New Mexico Constitution more broadly than its federal counterpart, part ways with the

Manson doctrine, and “re-evaluate the admission of eyewitness identification evidence

in[ ] our courts.” Although we determine as unavailing Defendant’s contention that

suppression is warranted under existing case law, we do agree, as we will explain more

fully, that the Manson reliability test violates due process under the New Mexico

Constitution and should no longer be followed in New Mexico.

1. Standard of review

{25} An order denying suppression of eyewitness identification evidence is reviewed

as a mixed question of fact and law, with the Court viewing the facts “in the manner

most favorable to the prevailing party, and drawing all reasonable inferences in support

of the court’s decision.” State v. Salgado, 1999-NMSC-008, ¶ 16, 126 N.M. 691, 974

P.2d 661 (brackets omitted) (internal quotation marks and citation omitted). We review

the application of the law to those facts de novo. See State v. Neal, 2007-NMSC-043, ¶

15, 142 N.M. 176, 164 P.3d 57. We also conduct de novo review of constitutional

questions bearing on suppression. See State v. Belanger, 2009-NMSC-025, ¶ 8, 146

N.M. 357, 210 P.3d 783 (“This appeal implicates . . . the Fourteenth Amendment right to

due process of law, including the right to a fair trial, and therefore our review is de

novo.”).

2. The Manson rule and current New Mexico law

{26} New Mexico has adopted the federal standard under Manson for determining

whether the administration of an eyewitness photographic identification violates a

defendant’s right to due process. See Baca, 1983-NMSC-049, ¶ 18 (applying the

rationale set forth in Manson, 432 U.S. 98, and in Neil v. Biggers, 409 U.S. 188 (1972)).

“In reviewing the admissibility of an out-of-court photographic identification, we

determine whether the procedure used was so impermissibly suggestive as to give rise

to a very substantial likelihood of irreparable misidentification and whether, under the

totality of the circumstances, the identification was still reliable.” State v. Jacobs, 2000-

NMSC-026, ¶ 30, 129 N.M. 448, 10 P.3d 127; Salgado, 1999-NMSC-008, ¶ 16. In other

words, even if the procedures are determined to be impermissibly suggestive, the

identification may still be admitted if its reliability sufficiently outweighs the “corrupting

effect” of the suggestive procedures. Manson, 432 U.S. at 114. 1 In considering whether

the identification is reliable under the totality of circumstances, the relevant factors

“include” (1) “the opportunity of the witness to view the criminal at the time of the crime,”

(2) “the witness’s degree of attention at the time of the crime,” (3) “the accuracy of the

witness’s earlier descriptions of the criminal,” (4) “the certainty of the witness about the

identification,” and (5) “the time elapsed between the crime and the identification

1“[United States Supreme Court] precedents refer to ‘impermissibly,’ ‘unnecessarily,’ and ‘unduly’

suggestive circumstances interchangeably,” with each term “reinforc[ing the Court’s] focus not on the act

of suggestion, but on whether the suggestiveness rises to such a level that it undermines reliability.” Perry

v. New Hampshire, 565 U.S. 228, 254 n.3. (2012) (Sotomayor, J., dissenting) (citations omitted) (citing

cases). The Supreme Court has not yet defined the term “suggestive” with specificity. See, e.g., id.

confrontation.” Jacobs, 2000-NMSC-026, ¶ 30. In practical terms, the Manson rule sets

a high bar for exclusion of identification evidence, requiring a court to find the evidence

to be “both produced through an unnecessarily suggestive procedure and unreliable.”

United States v. Bautista, 23 F.3d 726, 729 (2d Cir. 1994) (emphasis in original).

{27} Under this standard, Defendant argues that Benitez’s out-of-court identification of

him as the individual Benitez saw walking away from the scene of the shooting of

Cisneros and AO was the product of impermissibly suggestive photographic

identification procedures and that Benitez’s identification lacked reliability.

3. No violation of the Manson rule

{28} The Manson test requires a court to determine “whether the procedure used was

so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable

misidentification and whether, under the totality of the circumstances, the identification

was still reliable.” Jacobs, 2000-NMSC-026, ¶ 30. The most significant factors to be

considered in evaluating the suggestiveness of a photographic display are “[t]he size of

the array, the manner of its presentation by the officers, and the details of the

photographs themselves.” Salgado, 1999-NMSC-008, ¶ 17 (internal quotation marks

and citation omitted) (quoting Sanchez, 24 F.3d at 1262.

{29} Concerning the size of the array, this Court has joined many federal courts in

holding that a photo array containing as few as six photographs—the size of the photo

array used at the sheriff’s office to identify Defendant herein—is not unconstitutional per

se. Id.; see, e.g., United States v. Carter, 410 F.3d 942, 948 (7th Cir. 2005) (“Six is a

sufficient number of photos for such a line-up.”); United States v. Rosa, 11 F.3d 315,

330 (2d Cir. 1993) (holding an “array of six not so small as to be impermissibly

suggestive”); see also Sanchez, 24 F.3d at 1262 (upholding the use of a photo array

containing six photographs although expressing the view that “the number of

photographs in an array is not itself a substantive factor, but instead is a factor that

merely affects the weight given to other alleged problems or irregularities in an array”).

{30} Nor was it shown that the manner in which Detective Jaramillo presented the

photo array to Benitez ran afoul of federal due process requirements. Notably,

Defendant in his briefing to this Court does not directly argue that the detective exerted

undue pressure on Benitez to make an identification from the array, much less that the

officer’s statements or actions during the identification procedure influenced which

photograph Benitez ultimately chose.

{31} Instead, Defendant refers to the disputed testimony about Detective Jaramillo’s

alleged use of a prior photo display being presented to Benitez when they met at the

crime scene two days before the photo display that took place at the sheriff’s office.

Defendant did not, however, adequately preserve or develop this argument at the

suppression hearing, failing to invoke a ruling on or otherwise pursue the issue, in

response to the eyewitness’s disputed hearing testimony. See State v. Silva, 2008-

NMSC-051, ¶ 9, 144 N.M. 815, 192 P.3d 1192 (“To preserve a question for review it

must appear that a ruling or decision by the district court was fairly invoked . . . .”

(omission in original) (internal quotation marks omitted) (quoting Rule 12-216(A) NMRA,

recompiled as Rule 12-321(A) NMRA (effective Dec. 31, 2016)); see also State v.

DeAngelo M., 2015-NMSC-033, ¶ 18, 360 P.3d 1151 (noting that “an informed decision”

on appeal was precluded by the absence of a record from the trial court). Given the

incomplete state of the record as to the nature of any crime scene photo display that

may have occurred, an informed determination on the constitutional propriety of the

detective’s conduct in this regard is not possible.

{32} Finally, the district court found that the photo array shown to Benitez depicted

men of equivalent age and ethnicity who shared similar physical characteristics,

including the presence of prominent tattoos on their necks and/or faces. Although

Defendant’s expert witness on eyewitness identification, Dr. Roy Malpass, offered

testimony at the suppression hearing seeking to highlight the facial features

distinguishing the persons depicted in the photo array, none were so remarkable or

unique as to make one photograph stand out over any other photograph in the group.

See Jarrett v. Headley, 802 F.2d 34, 41 (2nd Cir. 1986) (“It is not required . . . that all of

the photographs in the array be uniform with respect to a given characteristic.”); see

also United States v. Holliday, 457 F.3d 121, 126 n.5 (1st Cir. 2006) (observing that

although the police “are required to make every effort reasonable under the

circumstances to conduct a fair and balanced presentation of alternative possibilities for

identification[, they] are not required to search for identical twins . . .”) (internal quotation

marks and citation omitted); United States v. Nash, 946 F.2d 679, 681 (9th Cir. 1991)

(holding a photo array not impermissibly suggestive despite differences in hairstyles,

ethnicity, and complexions); but cf. United States v. Wiseman, 172 F.3d 1196, 1209-10

(10th Cir. 1999) (determining that a photo array “was unduly suggestive” where the

defendant’s photo stood out from the others in showing him “with very prominent dark

circles under his eyes and with an extremely unnatural, chalk-white pallor, while the skin

tones in the photos of the [fillers] look quite natural”), abrogated on other grounds by

Rosemond v. United States, 572 U.S. 65, 70 (2014).

{33} Because neither the composition nor the administration of the sheriff’s office

photo display was shown to be unduly suggestive under federal constitutional rules, the

reliability of that identification under Manson and its progeny is not considered. See

Jarrett, 802 F.2d at 42 (holding that where pretrial identification procedures “were not

impermissibly suggestive, independent reliability is not a constitutionally required

condition of admissibility”). It also follows that Benitez’s subsequent in-court

identification of Defendant at trial was properly admitted under federal due process

standards. See Salgado, 1999-NMSC-008, ¶ 23 (upholding trial court’s decision to allow

in-court identification upon determining that a photographic array was not impermissibly

suggestive).

4. Defendant’s argument under the New Mexico Constitution

{34} Having rejected Defendant’s federal due process claim concerning Benitez’s

pretrial and in-court identifications, we turn to his argument that Article II, Section 18 of

the New Mexico Constitution provides broader due process protection in this context.

The reliability of an eyewitness identification at trial is a due process requirement.

Patterson, 2001-NMSC-013, ¶ 20. This Court has not yet held that Article II, Section 18

generally provides greater due process protection than its federal counterpart. Cf.

Morris v. Brandenburg, 2016-NMSC-027, ¶¶ 32-38, 376 P.3d 836 (performing an

interstitial analysis and concluding “that there are no distinctive state characteristics with

respect to the due process protections of Article II, Section 18 that warrant a departure

from the federal analysis”); see also U.S. Const. amend. XIV (“[N]or shall any State

deprive any person of life, liberty, or property, without due process of law.”); N.M. Const.

art. II, § 18 (“No person shall be deprived of life, liberty or property without due process

of law.”)

{35} When the New Mexico constitutional provision has not yet been determined to

provide greater protection under the interstitial analysis, trial counsel must (1) fairly

invoke a ruling; (2) “develop the necessary factual base and raise the applicable

constitutional provision in trial court;” and additionally, (3) “argue that the state

constitutional provision should provide greater protection, and suggest reasons as to

why, for example, a flawed federal analysis, structural differences between state and

federal government, or distinctive state characteristics.” State v. Leyva, 2011-NMSC-

009, ¶ 49, 149 N.M. 435, 250 P.3d 861(emphasis omitted)(internal quotation marks and

citation omitted); accord State v. Ketelson, 2011-NMSC-023, ¶¶ 10-11, 150 N.M. 137,

257 P.3d 957.

{36} Defendant clearly invoked a ruling by the district court that Article II, Section 18 of

the New Mexico Constitution should be construed to afford broader due process

protections in the context of admissibility of eyewitness identification evidence because

the current standard is premised on a flawed federal analysis that fails to account for

scientific developments in the fields of memory and eyewitness identification that have

taken place since the federal analysis was adopted. We therefore review Defendant’s

argument that Article II, Section 18 provides broader due process protections in the

context of eyewitness identifications because the federal analysis is flawed.

{37} Defendant argues that the “reliability” test announced in Manson and now

controlling in New Mexico is flawed and should be abandoned because “it is outdated

and does not account for the major scientific findings on eyewitness identification” since

Manson was decided more than four decades ago. Defendant asserts that this Court

should either “adopt a per se” rule to exclude eyewitness identification evidence when

impermissibly suggestive identification procedures have been used or alternatively

update the current reliability standard to better reflect the science on eyewitness

identification evidence.

{38} In order to assess the merits of Defendant’s state constitutional claim, we

examine the substantial body of empirical scientific studies on human memory and

perception undertaken in the wake of Manson and the legal literature, decisional law,

and statutory enactments that have developed accordingly.

a. The scientific research

{39} The reliability and significance of post-Manson scientific studies addressing the

psychological factors affecting eyewitness identifications are now widely acknowledged

by the courts. E.g., United States v. Downing, 753 F.2d 1224, 1242 & n. 23 (3d Cir.

1985) (noting “the proliferation of empirical research demonstrating the pitfalls of

eyewitness identification” and concluding that “the consistency of the results of these

studies is impressive” (internal quotation marks and citation omitted); accord People v.

McDonald, 690 P.2d 709, 718 (Cal. 1984) (en banc) (cautioning courts not to “remain

oblivious” to the implications of the eyewitness identification studies “for the

administration of justice”), overruled on other grounds by People v. Mendoza, 4 P.3d

265, 278 (Cal. 2000); see also Young v. Conway, 715 F.3d 79, 81 (2d Cir. 2013)

(denying rehearing en banc) (Parker, J., concurring) (underscoring the importance of

ensuring that trial judges are made aware of the existence of the “robust and growing

body of high-quality scientific studies addressing problems surrounding eyewitness

identifications”).

{40} Scientific research calls into serious question the continued efficacy of the legal

framework established in Manson and currently applied in New Mexico. See, e.g.,

Brandon L. Garrett, Eyewitnesses and Exclusion, 65 Vand. L. Rev. 451, 468-69 (2012)

(“Eyewitness identifications are designed to be a test of a witness’s memory.”).

However, since the Manson decision, “[a] now vast body of social science research has

demonstrated that most of the five Manson ‘reliability’ factors do not correlate at all with

the reliability of an eyewitness’s identification.” Garrett, supra, at 468-69. In addition,

due to the powerful effect eyewitness identification has on juries, especially when stated

in a confident manner, modern scholars now recognize that mistaken identification

evidence is the most significant cause of wrongful convictions in the United States. See

Perry, 565 U.S. at 263-65 (Sotomayor, J., dissenting); see also Jules Epstein, The

Great Engine That Couldn’t: Science, Mistaken Identifications, & the Limits of Cross-

Examination, 36 Stetson L. Rev. 727, 729-30 (2007) (“As the [DNA] exonerations grew

in number, the role of mistaken-identification testimony retained its prominence.”);

Sandra G. Thompson, Judicial Blindness to Eyewitness Misidentification, 93 Marq. L.

Rev. 639, 639 (2009) (same); Gary L. Wells & Eric P. Seelau, Eyewitness Identification:

Psychological Research & Legal Policy on Lineups, 1 Psychol., Pub. Pol’y, & L. 765,

787 (1995) (same).

{41} The scientific literature demonstrates multiple reasons why eyewitness testimony

can be erroneous despite the fact that a witness testifies “in good faith and with a high

degree of confidence,” as we now summarize. Robert A. Wise, Clifford S. Fishman &

Martin A. Safer, How to Analyze the Accuracy of Eyewitness Testimony in a Criminal

Case, 42 Conn. L. Rev. 435, 454-55 (2009). Human “[m]emory is [m]alleable.” Thomas

D. Albright, Why Eyewitnesses Fail, 114.30 Proceedings of the National Academy of

Sciences 7758, 7760 (2017), available at

https://www.pnas.org/content/pnas/114/30/7758.full.pdf (last visited Aug. 28, 2020).

[A]n eyewitness’s memory of a crime is not stored like a videotape that the

eyewitness can replay to produce an exact record of the crime. It

frequently does not contain the degree of detail sought by criminal

investigators. Instead, when an eyewitness recalls a crime, he or she

unconsciously reconstructs his or her memory of the crime. In

unconsciously reconstructing his or her memory of the crime, the

eyewitness unknowingly fills in the gaps in his or her factual memory of

the crime based on such factors as the eyewitness’s expectations,

attitude, beliefs, and knowledge of similar events. These different sources

of information are automatically blended together in the eyewitness’s

memory to produce an account of the crime that is apparently seamless

and coherent but that may contain inaccuracies.

Wise et al., supra, at 455-56 (footnotes omitted).

{42} In addition, eyewitnesses are biased. Id. at 456. An eyewitness’s biases

influence not only what the eyewitness “recalls about a crime, but also what the

eyewitness perceives” and encodes into memory about the crime. Id. (stating that

“[e]ncoding refers to the process by which an eyewitness transforms what he or she

perceives about a crime into a stored memory”). “For example, if a hair stylist witnesses

a crime, he or she may pay more attention to the perpetrator’s hair than other

eyewitnesses would.” Id. And “[b]ecause encoding involves interpretation and inference,

what is stored in memory is not just what the eyewitness saw during the crime, but also

the meaning the eyewitness gave to what occurred,” which is further influenced by

factors like stress level, presence of a weapon, new faces, pictures, and events

experienced after the crime. Id.

{43} Eyewitness testimony may also be erroneous due to the “[m]isinformation

[e]ffect.” Id. at 457. “Because an eyewitness’s memory of a crime is a reconstructive

process, it can be altered by information that the eyewitness learns after the crime from

other sources such as other eyewitnesses, the police, the prosecutor, and the media.”

Id. This kind of “post-event information not only affects an eyewitness’s memory of the

crime, but it may also impair his or her ability to identify the perpetrator of the crime.” Id.

{44} A fourth reason for misidentification stems from “[s]ource [m]onitoring [e]rrors.”

Id. This category of cognitive error occurs when eyewitnesses become “confused about

where they learned information about a crime or where they saw an individual.” Id.

These errors lead to misattribution of information that eyewitnesses believe they saw

during the crime to other sources they encountered later. Id. There is, in addition,

“[h]indsight [b]ias,” which refers to the cognitive error that occurs when an individual

knows how an event turns out and this knowledge influences the individual’s memory of

what the individual believes about what actually occurred. Id. at 458. It follows that when

“an eyewitness learns that a suspect has been indicted and is going to be tried for a

crime, this information alters an eyewitness’s memory of the crime and what the

eyewitness remembers . . . or . . . was thinking when the crime occurred.” Id.

{45} “Eyewitness [o]verconfidence” and tendencies toward “[r]elative [j]udgment” in

making identifications also contribute to erroneous misidentifications. Id. at 458-60. In

general, “[p]eople tend to overestimate the accuracy of their perceptions and memory[,]”

and as such, “eyewitnesses are likely to be overconfident about the accuracy of their

account of the crime and their identification of the suspect as the perpetrator of the

crime.” Id. at 458. Like memory, confidence in a memory is malleable, and postevent

information can increase an eyewitness’s confidence in a false memory. Id. at 458-59.

Similarly, in the context of a lineup or photo array, eyewitnesses are likely to make a

relative judgment in identifying a perpetrator such that eyewitnesses will choose the

person “who most closely resembles their memory of the perpetrator of the crime.” Id. at

460. Relative judgments stem from two assumptions frequently made by eyewitnesses:

(1) “law enforcement would not conduct a lineup if they did not have a suspect,” and (2)

“eyewitnesses feel pressure from law enforcement, relatives, friends, and themselves to

make an identification.” Id. at 460-61.

{46} Often lineups are done in such a way that the eyewitness’s attention is drawn to

the suspect. Id. at 461. Drawing an analogy from lineups to scientific experiments

generally, Wise observes that “[s]cientists have long known that safeguards are

necessary to ensure that they do not unintentionally influence participants in an

experiment” and so have implemented protections to ensure data collected is not the

product of the experimenter’s biases or other extraneous factors. Id. Just as accurate

scientific data depends on application of a scientific method free of bias and other

extraneous factors, Wise continues, extracting reliable eyewitness identification

evidence “depends in part on the use of proper scientific procedures.” Id. at 463. And

where studies show that “most lineups do not comply with scientific guidelines for

conducting fair and unbiased” identifications, such procedures taint eyewitness

identification evidence that is frequently admitted at trial. Id.

{47} Apart from the foregoing summary, a brief overview of the existing science 2

reveals a near consensus among experts that certain factors may inherently impair the

ability of witnesses to accurately process what they observe. These factors, described

as “variables,” fall into two categories: (1) system variables—those surrounding the

identification procedure itself—which largely lie within the exclusive control of law

enforcement officers, and (2) estimator variables—those peculiar to the circumstances

of the crime and a witness’s observation of it—over which the criminal justice system

lacks control. See Gary L. Wells, Applied Eyewitness-Testimony Research: System

Variables and Estimator Variables, 36 Journal of Personality & Social Psychology 1546,

1546-57 (1978) (coining the terms “system” and “estimator” variables), available at

https://www.researchgate.net/publication/279926900_Applied_eyewitness-

testimony_research_System_variables_and_estimator_variables (last visited Aug. 28,

2020). System variables bear on the suggestiveness of an identification procedure while

estimator variables are used to evaluate an identification’s reliability. See State v.

Henderson, 27 A.3d 872, 920-23 (N.J. 2011).

{48} With respect to system variables, psychological studies provide valuable insights

for developing best practices for the fair, proper, and nonsuggestive administration of

identification procedures. The relevant science shows, for instance, that it is preferable

for a lineup identification, whether photographic or corporeal, to be conducted by a

2More comprehensive discussions of the scientific research relating to memory and eyewitness

identification are provided in Dennis v. Secretary, Pennsylvania Department of Corrections, 834 F.3d 263,

320-32 (3rd Cir. 2016) (en banc) (McKee, C.J., concurring), and in State v. Lawson, 291 P.3d 673, app. at

700-11 (Or. 2012).

“blind” administrator— referring to one who does not know the identity of the suspect or

where the suspect is located during the procedure—so as to avoid influence over the

witness regarding which person to select. See Bill Nettles, Zoe Sanders, & Gary L.

Wells, Eyewitness identification: ‘I noticed you paused on number three.’, The

Champion 11, 11-12 (Nov. 1996) (explaining the “Experimenter Expectancy Effect” by

which a nonblind lineup administrator unintentionally “can make the subject respond

with the desired outcome”), available at

https://lib.dr.iastate.edu/cgi/viewcontent.cgi?article=1081&context=psychology_pubs

(last visited Aug. 28, 2020). Such subtle forms of feedback imparted by nonblind lineup

administrators by way of tone of voice, demeanor, facial expressions, and the like are

difficult to detect and prevent and, indeed, are often unknown and unknowable to both

witnesses and administrators alike. See Ryann M. Haw & Ronald P. Fisher, Effects of

Administrator-Witness Contact on Eyewitness Identification Accuracy, 89 Journal of

Applied Psychology 1106, 1110 (2004) (summarizing results of numerous experimental

studies), available for purchase at

https://psycnet.apa.org/doiLanding?doi=10.1037%2F0021-9010.89.6.1106 (last visited

Aug. 28, 2020).

{49} A separate but related system variable often discussed in the scientific literature

involves the tendency of postidentification, confirmatory feedback by lineup

administrators to falsely inflate both witnesses’ confidence in the accuracy of their prior

identifications and witnesses’ assessments of their opportunity to view the perpetrator(s)

and the crime. In distorting eyewitness recollections and increasing eyewitness

confidence, post-identification suggestive feedback serves to create inherently

unreliable witnesses who, by projecting undue confidence in their identifications, are

well positioned to offer testimony that serves as a double-edged sword, at once

appealing to jurors’ well-documented proclivity to “place the greatest weight on

eyewitness confidence in assessing identifications even though confidence is a poor

gauge of accuracy” while also proving to be “resistan[t] to the ordinary tests of the

adversarial process.” Perry, 565 U.S. at 249, 264 (Sotomayor, J., dissenting); see also

Amy B. Douglass & Nancy Steblay, Memory Distortion in Eyewitnesses: A Meta-

Analysis of the Post-Identification Feedback Effect, 20 Applied Cognitive Psychology

859, 861, 864-65 (2006) (examining the results of twenty experiments, involving over

2,400 participants, which “provide dramatic evidence that post-identification feedback

can compromise the integrity of a witness’s memory”), available for purchase at

https://onlinelibrary.wiley.com/doi/10.1002/acp.1237 (last visited Aug. 28, 2020);

Elizabeth F. Loftus et al., Eyewitness Testimony: Civil and Criminal § 3-8, at 69 (4th ed.

2007) (“[H]uman recollection can be supplemented, partly restructured, and even

completely altered by postevent inputs.”).

{50} Scientific research also offers important insights into the workings of a wide array

of estimator variables that are prone to diminish the reliability of an eyewitness

identification. Prominently discussed in the scientific literature are variables relating to

the focus of a witness’s attention during the commission of a crime, a factor which is

often dependent on a witness’s level of stress or distraction at the time. All forms of the

“[w]itness [a]ttention” variable are rooted in the same basic psychological principle:

despite popular misconceptions to the contrary, a person’s memory does not “operate[ ]

like a videotape, recording an exact copy of everything the person sees,” with studies

showing instead that “[a] person’s capacity for processing information is finite, and the

more attention paid to one aspect of an event decreases the amount of attention

available for other aspects.” Lawson, 291 P.3d at 701 (citing Gary L. Wells & Deah S.

Quinlivan, Suggestive Eyewitness Identification Procedures and the Supreme Court’s

Reliability Test in Light of Eyewitness Science: 30 Years Later, 33 Law & Hum. Behav.

1, 10-11 (2009)). Put differently, science shows that “[r]emembering is not the re-

excitation of innumerable fixed, lifeless and fragmentary traces. It is an imaginative

reconstruction, or construction, built out of the relation of our attitude towards a whole

active mass of organized past reactions or experience” where “the past is being

continually re-made, reconstructed in the interests of the present.” People v. Shirley,

723 P.2d 1354, 1378 (Cal. 1982) (en banc) (internal quotation marks omitted) (quoting

Sir Frederick C. Bartlett, Remembering 213, 309 (1932, reprinted 1964) superseded by

statute on other grounds as stated in People v. Alexander, 235 P.3d 873, 880(Cal.

2010)); accord Henderson, 27 A.3d at 894 (describing memory as “a constructive,

dynamic, and selective process”).

{51} A frequently discussed aspect of the “[w]itness [a]ttention” variable is what the

scientific literature and case law describe as the “weapon-focus effect,” the empirically

tested theory that “the visible presence of a weapon during an encounter negatively

affects memory for faces and identification accuracy because witnesses tend to focus

their attention on the weapon instead of on the face or appearance of the perpetrator, or

on other details of the encounter.” Lawson, 291 P.3d at 701 (citing Kerri L. Pickel,

Remembering and Identifying Menacing Perpetrators: Exposure to Violence and the

Weapon Focus Effect, 2 The Handbook of Eyewitness Psychology: Memory for People

339 (R.C.L. Lindsay et al. eds., 2007)). Studies also show, as a corollary, that witness

distraction resulting from the presence of any unusual or out-of-place object, whether

dangerous or not, can similarly impair a witness’s recall ability. See Lawson, id.

(pointing to studies “document[ing] similar impairment of identification performance

when witnesses viewed the target holding unusual, but nonthreatening, objects like a

stalk of celery or a toy doll”). And because science supports the conclusion that

“witnesses generally do not contemporaneously observe their own degree of attention

or other viewing conditions as they observe an event,” their subsequent self-reporting

on how closely they were paying attention “is particularly susceptible to the inflating

effects of confirming feedback.” Id. at 702.

{52} Testimony given at the suppression hearing by Dr. Roy Malpass, whom

Defendant called to testify as an expert in eyewitness identification and memory, is

consistent with the scientific studies. Dr. Malpass testified that suggestive identification

procedures can lead to changes in the memory of an eyewitness, ranging from entirely

replacing the witness’s memory to altering the witness’s memory of particular features

of the perpetrator. Dr. Malpass further explained that a suggestive out-of-court

identification taints a subsequent in-court identification because the in-court

identification stems from a contaminated memory.

b. The legal literature

{53} The legal literature is replete with discussions of the doctrinal and scientific

shortcomings of the Manson reliability test and the significant threat posed to the

integrity of our criminal justice system by misidentifications engendered by the Manson

rule. Concerning the threat posed to the integrity of our criminal justice system by

misidentifications, a recent report from a court task force examining eyewitness

identification evidence had this to say:

Eyewitness misidentifications have been a factor in well over half of the

cases that resulted in wrongful convictions later overturned by DNA

evidence. Nearly seventy percent of the DNA driven exonerations in the

United States involved eyewitness misidentifications. Eyewitness

misidentification is the “single greatest source” of wrongful convictions in

the United States. In fact, mistaken identifications “are responsible for

more wrongful convictions than all other causes combined.” Innocent

people are convicted, the perpetrator goes free, and public confidence in

the judicial system erodes.

2019 Report of the United States Court of Appeals for the Third Circuit Task Force on

Eyewitness Identifications, 92 Temp. L. Rev. 1, 10-11 (2019) (footnotes omitted).

{54} As to the analytic weaknesses of the Manson rule, commentators have

expressed the view that the United States Supreme Court’s two-part test—which

relegates unnecessary suggestiveness to a threshold inquiry and focuses primarily on

five fixed “reliability” factors—is untethered to any sound scientific knowledge. See, e.g.,

Principles of the Law, Policing; Eyewitness Identifications § 10.01, at 75 reporters’ notes

(Am. Law Inst., Tentative Draft No. 2, March 18, 2019, approved June 18, 2020)

(recognizing that the Manson/Biggers framework “does not comport with scientific

research,” which “has called into question the validity of many of the Supreme Court’s

so-called ‘reliability’ factors”), available at http://www.thealiadviser.org/policing/policing-

principles/ (last visited Aug. 28, 2020); see Nat’l Research Council, Identifying the

Culprit: Assessing Eyewitness Identification 44 (Nat’l Acads. Press 2014) (concluding

that the Manson test “evaluates the ‘reliability’ of eyewitness identifications using factors

derived from prior rulings and not from empirically validated sources” and “includes

factors that are not diagnostic of reliability”); see also Suzannah B. Gambell, The Need

to Revisit the Neil v. Biggers Factors: Suppressing Unreliable Eyewitness

Identifications, 6 Wyo. L. Rev. 189, 217-18 (2006) (describing the Neil v. Biggers

reliability factors as “under-inclusive and outdated” in terms of “current scientific

research”); Benjamin E. Rosenberg, Rethinking the Right to Due Process in Connection

with Pretrial Identification Procedures: An Analysis and a Proposal, 79 Ky. L.J. 259, 281

(1990-91) (“[G]iven the emergent state of scientific knowledge about eyewitness

identifications, the Supreme Court’s adoption of the five factors test was not a sound

application of scientific principles to constitutional adjudication.”); Wise et al., supra at

448 (pointing to the fact that the Neil v. Biggers and Manson decisions “predated the

vast majority of scientific research on eyewitness testimony” and describing the

reliability factors set forth therein as the Supreme Court’s “educated guesses” on how

the specified factors “affect identification accuracy” (internal quotation marks and

citation omitted)). At a minimum, there appears to be broad consensus among

commentators that three of the five Manson factors—view, attention, and certainty—are

insufficiently independent from each other and from the suggestiveness of a given

identification procedure to be accurate predictors of reliability and accuracy. See, e.g.,

Nicholas A. Kahn-Fogel, The Promises and Pitfalls of State Eyewitness Identification

Reforms, 104 Ky. L.J. 99, 115 (2015-16) (identifying the three “largely subjective, self-

reporting factors” set forth in Manson as “opportunity to view, degree of attention, and

confidence” and concluding that “the Manson analysis has tended to create a sort of

perverse feedback loop, in which the Manson factors seem to reinforce the reliability of

the most suggestive procedures”); Wells & Quinlivan, supra, at 9 (describing those

same suspect Manson criteria as “retrospective self-reports” that are “highly malleable

in response to even slight changes in context . . . , the social desirability of the

responses, the need to appear consistent, and reinterpretations of the past based on

new events”).

{55} These concerns have prompted commentators to call for the adoption of new,

science-driven admissibility standards in place of the reliability-based formulation set

out in Manson. See, e.g., Principles of the Law, Policing; Eyewitness Identifications,

supra, § 10.01 at 76 (pointing to the United States Supreme Court’s “acquiescent

approach to eyewitness identification, and the current state of research” in recognizing

the need for “laws and policies that adhere to our best understanding of the reliability of

eyewitness testimony and the factors that in fact heighten or diminish reliability in any

given case”); Sandra Guerra Thompson, Judicial Gatekeeping of Police-Generated

Witness Testimony, 102 J. Crim. L. & Criminology 329, 365, 368 (2012) (concluding that

adherence to “anemic” federal due process standards such as those laid out in Manson

have proved inadequate to ensure the reliability of “police-generated witness testimony”

and calling for various judicial reforms, including requirements that law enforcement

follow best practices in procuring eyewitness identifications).

{56} Based on the research, legal scholars in the field of eyewitness identification

evidence now also advocate for state courts to adopt a per se exclusionary rule for

suggestively obtained eyewitness testimony. See Gambell, supra, at 214 (“A per se

exclusion of unnecessarily suggestive identifications could alleviate many dangers

posed to defendants from eyewitness identifications.”); Rosenberg, supra, at 303, 314-

15 (same); Wise et al., supra, at 450 (same).

5. State court decisions modifying or departing from the Manson test

{57} State courts have, in recent years, shown an enhanced willingness to answer the

commentators’ clarion calls to adopt alternative approaches in assessing the

admissibility of identification evidence, approaches consistent with modern scientific

knowledge of the mechanics and malleability of human memory.

{58} Some jurisdictions, though adhering to Manson’s reliability-based framework,

have taken modest measures to refine or expand upon Manson’s reliability criteria to be

more closely aligned with modern empirical realities. See State v. Copeland, 226

S.W.3d 287, 290, 299-300 (Tenn. 2007) (relying on empirical studies addressing the

limitations and weaknesses of eyewitness testimony to overrule prior state precedent

and by allowing the admission of expert testimony on the reliability of eyewitness

identifications in appropriate cases); State v. Discola, 2018 VT 7, ¶¶ 30-31, 184 A.3d

1177 (joining Kansas and Utah in abandoning witness certainty as a factor in evaluating

the reliability of eyewitness identifications and, in so doing, pointing to post-Manson

scientific evidence “concerning the fallibility of eyewitness identification, and specifically

the effect of suggestive circumstances on the degree of certainty the witness expresses

in an identification”).

{59} Other jurisdictions have undertaken more sweeping reforms. See Henderson, 27

A.3d at 919-22 (overhauling the courtroom framework for the admission of eyewitness

identification evidence in New Jersey by adopting new procedures for evaluating

suggestiveness and reliability, procedures which account for system and estimator

variables); Lawson, 291 P.3d at 684-85, 697 (revising Oregon’s version of the Manson

test under state evidence rules to include the use of system and estimator variables);

see generally Small v. State, 211 A.3d 236, 261-63 & n.5 (Md. 2019) (Barbera, C.J.,

concurring) (surveying state court cases that “recogniz[e] the need to progress beyond

the five-factor Manson test” and concluding that “[t]he current body of research makes a

strong case” for courts “not simply to break free from reliance on the Manson test, but

also to develop a more rigorous protocol for assessing eyewitness identification

reliability”).

{60} The developing case law of Massachusetts and New York is particularly useful in

informing our analysis. Each of these jurisdictions has rejected outright Manson’s

traditional two-pronged test—which inquires whether a pretrial identification is reliable in

spite of the suggestive procedures under which it was made—in favor of a bright-line,

per se exclusionary rule triggered on the basis of suggestiveness alone.

{61} Massachusetts courts have long recognized both the “undeniable” reality that “a

defendant has a due process right to identification procedures meeting a certain basic

standard of fairness[,]” Commonwealth v. Dougan, 386 N.E.2d 1, 8-9 (Mass. 1979)

(stating that “eyewitness identification often plays a major, if not a determinative, role in

the trial of criminal offenses, and the dangers of mistaken identification are great and

the result possibly tragic” (internal quotation marks and citation omitted)), and the

shortcomings of the Manson reliability test that provides “little or no protection from

unnecessarily suggestive identification procedures, from mistaken identifications and,

ultimately, from wrongful convictions,” Commonwealth v. Johnson, 650 N.E.2d 1257,

1262 (Mass. 1995). Consistent with these views, the Supreme Judicial Court of

Massachusetts has held, as a matter of state constitutional law, that an out-of-court

eyewitness identification made during a police identification procedure is not admissible

“where the defendant proves by a preponderance of the evidence, considering the

totality of the circumstances, that the identification is so unnecessarily suggestive and

conducive to irreparable misidentification that its admission would deprive the defendant

of his right to due process.” Commonwealth v. Walker, 953 N.E.2d 195, 205 (Mass.

2011), disagreed with on other grounds by Commonwealth v. Lally, 46 N.E.3d 41, 52 &

n.10 (Mass. 2016). Under this per se formulation, “a defendant must prove not only that

the out-of-court identification procedure administered by the police was suggestive, but

that it was unnecessarily suggestive,” an inquiry which focuses on whether police have

“good reason” to engage in a suggestive identification procedure in the first instance.

See Commonwealth v. Johnson, 45 N.E.3d 83, 88 (Mass. 2016) (internal quotation

marks and citations omitted); see also Commonwealth v. Austin, 657 N.E.2d 458, 461

(Mass. 1995) (recognizing that the “good reason” inquiry is case specific, turning on

such factors as “the nature of the crime involved and corresponding concerns for public

safety; the need for efficient police investigation in the immediate aftermath of a crime;

and the usefulness of prompt confirmation of the accuracy of investigatory information,

which, if in error, will release the police quickly to follow another track”).

{62} A significant feature of this Massachusetts jurisprudence is the Supreme Judicial

Court’s establishment of a protocol for the police to follow in conducting a photographic

identification procedure, see Commonwealth v. Silva-Santiago, 906 N.E.2d 299, 312

(Mass. 2009), abrogated on other grounds by Commonwealth v. Moore, 109 N.E.3d

484, 497 & n.9 (Mass. 2018). The protocol was adopted as part of the court’s

“superintendence . . . authority to regulate the presentation of evidence in court

proceedings” and reflects the court’s “recognition that there is a near consensus in the

relevant scientific community that the failure to follow such a protocol increases the risk

of misidentification.” Commonwealth v. Thomas, 68 N.E.3d 1161, 1168-69 (Mass.

2017). 3

{63} New York, for its part, has also adopted a per se exclusionary rule in lieu of the

traditional Manson standard, based on concerns over the inherent frailties of eyewitness

identification evidence that mirror the concerns expressed by Massachusetts courts.

See People v. Santiago, 958 N.E.2d 874, 880 (N.Y. 2011) (recognizing that “mistaken

eyewitness identifications play a significant role in many wrongful convictions”); People

v. Riley, 517 N.E.2d 520, 524 (N.Y. 1987) (describing as “self-evident” the weaknesses

and dangers of improper, albeit “potent,” identification evidence, and cautioning that

“[t]he complex psychological interplay and dependency of erroneously induced

3The Massachusetts photo identification protocol, modeled after Department of Justice guidelines, see

U.S. Dep’t of Justice, Eyewitness Evidence: A Guide for Law Enforcement, 19, 31-34 (1999), available at

https://www.ncjrs.gov/pdffiles1/nij/178240.pdf (last visited Aug. 28, 2020), calls for law enforcement

agents to clearly explain certain information before providing a photo array to an eyewitness. Instructions

to the eyewitness include that

he will be asked to view a set of photographs; the alleged wrongdoer may or may not be

in the photographs depicted in the array; it is just as important to clear a person from

suspicion as to identify a person as the wrongdoer; individuals depicted in the

photographs may not appear exactly as they did on the date of the incident because

features such as weight and head and facial hair are subject to change; regardless of

whether an identification is made, the investigation will continue; and the procedure

requires the administrator to ask the witness to state, in his or her own words, how

certain he or she is of any identification.

Silva-Santiago, 906 N.E.2d at 312. While Silva-Santiago did not directly address the issue, the

Massachusetts high court has since clarified that, although an identification procedure conducted without

strict adherence to the court-promulgated protocol is per se unnecessarily suggestive, the failure of law

enforcement to follow each aspect of the protocol is not necessarily so “conducive to irreparable mistaken

identification as to deny the defendant due process of law” or, standing alone, to warrant suppression of

an otherwise properly conducted and fair identification. See Thomas, 68 N.E.3d at 1169-70 (internal

quotation marks and citation omitted).

identification evidence . . . must be vigilantly guarded against because this kind of error

drives right into the heart of the adjudicative guilt or innocence process affecting the

person accused and identified”); People v. Caserta, 224 N.E.2d 82, 83 (N.Y. 1966)

(“One of the most stubborn problems in the administration of the criminal law is to

establish identity by the testimony of witnesses to whom an accused was previously

unknown, from quick observation under stress or when . . . there was no particular

reason to note the person’s identity.”). In People v. Adams, 423 N.E.2d 379, 383-84

(N.Y. 1981), the Court of Appeals, New York’s court of last resort, refused to adopt the

Manson reliability test, finding it incompatible with the due process protections afforded

by its state constitution. In concluding that evidence of the identification procedure there

at issue—a police “station house” showup—was improperly admitted at trial, the Adams

court relied solely on the inherent suggestiveness of the procedure, stating as follows:

A reliable determination of guilt or innocence is the essence of a criminal

trial. A defendant’s right to due process would be only theoretical if it did

not encompass the need to establish rules to accomplish that end.

Permitting the prosecutor to introduce evidence of a suggestive pretrial

identification can only increase the risks of convicting the innocent in

cases where it has the desired effect of contributing to a conviction.

Id. Recognizing that “[t]he unfairness to the defendant and the unreliability of

[suggestive, pretrial identification procedures] adversely impact the truth-finding

process,” People v. Marshall, 45 NE.3d 954, 960 (N.Y. 2015), New York’s highest court

has applied a per se rule of exclusion to different police-orchestrated, pretrial

identification procedures, including some photographic identification procedures. Id.

(“[A] pretrial identification procedure that is unduly suggestive violates a defendant’s due

process rights and is not admissible to determine the guilt or innocence of an accused.”

(internal quotation marks and citations omitted)).

{64} Both Massachusetts and New York apply harmless error review to due process

challenges involving the erroneous admission of such evidence. See Commonwealth v.

Jones, 666 N.E.2d 994, 995, 999 (Mass. 1996); People v. Johnson, 599 N.E.2d 682,

683 (N.Y. 1992); Adams, 423 N.E.2d at 384. 4 Their application of harmless error

principles accords with the broad consensus of courts, federal and state, that have

addressed the issue. See, e.g. Biggers v. Tennessee, 390 U.S. 404, 408-09 (1968)

(recognizing that the admission of unreliable identification evidence obtained from an

unduly suggestive lineup violates a defendant’s due process rights and thus is subject

to review under the constitutional harmless error standard); see also Manson, 432 U.S.

at 118 n.* (Stevens, J., concurring) (noting that facts that “tend[] to confirm [the

defendant’s] guilt” but do not support reliability under Manson should be considered only

to determine “whether error, if any, in admitting identification testimony was harmless”);

United States v. Concepcion, 983 F.2d 369, 379 (2d Cir.1992) (concluding that

admission of evidence obtained in “unduly suggestive” pretrial identification procedures

4In this sense, the use of the term “per se” connotes not that reversal is automatic upon a showing of an

unnecessarily suggestive identification procedure but that rejection of the tainted identification evidence

itself is required per se.

“was harmless beyond a reasonable doubt”); State v. Artis, 101 A.3d 915, 928 (Conn.

2014) (concluding that use of an unreliable eyewitness identification resulting from

unnecessarily suggestive procedures is subject to harmless error review like “any other

improperly admitted evidence” and pointing to the absence of any countervailing

authority in the holdings of “federal and sister state courts” nationwide).

{65} The rationale often given for the use of harmless error analysis in these

circumstances is that the improper admission of eyewitness identification testimony, like

other evidentiary matters, involves not a “structural defect affecting the framework within

which the trial proceeds” but instead a “‘trial error’—error which occurred during the

presentation of the case to the jury, and which may therefore be quantitatively assessed

in the context of other evidence presented in order to determine whether its admission

was harmless beyond a reasonable doubt.” Arizona v. Fulminante, 499 U.S. 279, 307-

08, 310 (1991); see 7 Wayne R. LaFave et al., Criminal Procedure § 27.6(d), at 153-54

(4th ed. 2015) (discussing the relevance of Fulminante to harmless error analysis).

6. The New Mexico Accurate Eyewitness Identification Act

{66} State courts are not alone in their responses to the scientific research. A number

of state legislatures have also taken measures to ensure that current scientific

standards are taken into account in regulating the manner in which identification

procedures are administered. See Principles of the Law, Policing; Eyewitness

Identifications, supra, § 10.02 at 82 (collecting statutes); see also Manson, 432 U.S. at

117-18 (Stevens, J., concurring) (encouraging “experimentation” on the part of state

legislatures in developing “new rules to minimize the danger of convicting the innocent

on the basis of unreliable eyewitness testimony”).

{67} Our Legislature has recently joined those ranks in taking remedial action, by

enacting the Accurate Eyewitness Identification Act (the Act), as part of a

comprehensive criminal justice reform bill which became effective July 1, 2019. See

2019 N.M. Laws, ch. 211, §§ 12-15 (compiled as NMSA 1978, §§ 29-3B-1 to -4 (2019)).

The Act requires all law enforcement agencies conducting eyewitness identification

procedures to adopt, no later than, January 1, 2020, and biennially review written

policies for the administration of the identification procedures. See § 29-3B-3(A), (C).

The law enforcement agency “shall adopt those practices shown by reliable evidence to

enhance the accuracy of identification procedures.” Section 29-3B-3(D). The biennial

review is conducted “to incorporate new scientifically supported protocols.” Section 29-

3B-3(C). In developing and revising those policies, law enforcement agencies must

include “practices shown by reliable evidence to enhance . . . the objectivity and

reliability of eyewitness identifications and to minimize the possibility of mistaken

identifications.” Section 29-3B-3(D)-(E). All such policies must include

(1) having a blind administrator or blinded administrator perform

the live lineup or photo lineup;

(2) documenting a description of the suspect provided by the

eyewitness, including a description of the circumstances under which the

suspect was seen by the eyewitness, the time of day, the length of time

the suspect was seen, the perceived or actual distance from the

eyewitness to the suspect and the lighting conditions;

(3) providing the eyewitness with instructions that minimize the

likelihood of an inaccurate identification, including that the perpetrator may

or may not be in the identification procedure and that the investigation will

continue regardless of whether an identification is made;

(4) composing the lineup so that the fillers generally resemble

the eyewitness’s description of the perpetrator so that the suspect does

not unduly stand out from the fillers;

(5) using at least four fillers in a live lineup and at least five

fillers in a photo lineup;

(6) ensuring, when practicable, that a photograph of the suspect

used in a photo lineup is contemporary and resembles the suspect’s

appearance at the time of the offense;

(7) presenting separate photo lineups and live lineups when

there are multiple eyewitnesses, ensuring that the same suspect is placed

in a different position for each identification procedure;

(8) having the administrator seek and document a clear

statement from the eyewitness, at the time of the identification and in the

eyewitness’s own words, as to the eyewitness’s confidence level that the

person identified is the person who committed the crime;

(9) minimizing factors at any point in time that influence an

eyewitness to identify a suspect or affect the eyewitness’s confidence

level in identifying a suspect, including verbal or nonverbal statements by

or reactions from the administrator;

(10) presenting lineup members one at a time;

(11) adopting relevant practices shown to enhance the reliability

of an eyewitness participating in a showup procedure, such as:

(a) identifying the circumstances under which a showup

is warranted;

(b) transporting the eyewitness to a neutral, non-law

enforcement location where the detained suspect is being held;

(c) removing the suspect from the law enforcement

squad car;

(d) removing restraints from the suspect when the

suspect is being observed by the eyewitness; and

(e) administering the showup procedure close in time to

the commission of the crime;

(12) video recording the entirety of the photo lineup and live

lineup and, where practicable, the showup procedure, unless the

recording equipment is not reasonably available or the recording

equipment fails and obtaining replacement equipment is not feasible; and

(13) preserving photographic documentation of all live lineup and

photo lineup members and showup suspects, as well as all descriptions

provided by the eyewitness of the perpetrator.

Section 29-3B-3(E).

{68} The nonexhaustive list of system variables set forth in Section 29-3B-3(E)

represents a minimum standard of “objectivity and reliability” for the identification

procedures used in lineups, showups, and photo arrays and is similar in content to

comparable standards proposed or established by commentators, courts, and other

statehouses. See, e.g., Wise et al., supra at 485-97 (discussing guidelines for such

system variables); see Henderson, 27 A.3d at 896-903 (discussing parameters for the

New Jersey system variables), 919-22 (establishing system variables and procedures

for lineups, showups, and photo arrays in New Jersey); see also N.C. Gen. Stat. § 15A-

284.52(b) (2007) (establishing the system variables for photo and live lineups first taking

effect in North Carolina on March 1, 2008 (amended effective December 1, 2015, and

June 26, 2019)). By the express terms of the Act, the “objectivity and reliability”

standards set out therein are prospective only, with law enforcement required to comply

with those standards by January 1, 2020. Section 29-3B-3(A), (E).

{69} Finally, we note that the Act only speaks to the obligations of law enforcement

agencies rather than the rights of suspects under investigation and provides no remedy

in the event a given identification procedure is not administered in accordance with its

requirements.

7. The Manson rule violates due process under the New Mexico Constitution

{70} The Massachusetts and New York case authorities discussed in section 5

highlight the importance of judicial flexibility in addressing shortcomings in existing law

that develop during changing times and by reason of evolving science. In the face of

emergent scientific consensus on a given issue, blind adherence to outdated precedent

is a failing. This is particularly the case in the constitutional realm and is no less so in

the context of eyewitness evidence where the risks of misidentification are great and the

stakes including wrongful convictions are high.

{71} The frequent criticisms levelled against the Manson decision and its progeny

from social scientists and legal scholars alike reveal serious flaws in the assumptions

and premises underlying Manson. These criticisms are apt and compel us to conclude

that the federal reliability standard set forth in Manson is both scientifically and

jurisprudentially unsound and hence flawed under our interstitial review. See generally

State v. Rowell, 2008-NMSC-041, ¶¶ 20-23, 25, 144 N.M. 371, 188 P.3d 95 (relying on

legal literature and the case law of New Mexico and other states in rejecting an often-

criticized federal constitutional doctrine in favor of a “sounder theory,” one rooted in

state constitutional principles); see also State v. Garcia, 2009-NMSC-046, ¶¶ 34, 35,

147 N.M. 134, 217 P.3d 1032 (rejecting a widely criticized United States Supreme Court

opinion that weakened the right to be free from unreasonable searches and seizures

“beyond a point which may be countenanced under our state constitution”).

{72} We therefore join Massachusetts and New York in departing from the Manson

rule and adopting in its place a per se rule of exclusion. In so doing, we overrule prior

cases to the extent that they apply the Manson reliability standard to determine whether

unnecessarily suggestive, police-arranged, pretrial identifications are nonetheless

admissible. See, e.g., Patterson, 2001-NMSC-013, ¶¶ 20-22, 25-26; Jacobs, 2000-

NMSC-026, ¶¶ 30-32; Baca, 1983-NMSC-049, ¶¶ 15, 18-19. 5 We recognize that a scant

few jurisdictions have chosen to entirely abandon the two-prong reliability test of

Manson on state constitutional grounds. 6 Nonetheless, our ultimate interest is not with

the number of courts that have weighed in on the issue but with the persuasiveness of

their decisions. See State v. Dickson, 141 A.3d 810, 826-27 (Conn. 2016) (declining to

adopt the view of “a number of courts” on a state constitutional issue involving first-time

in-court identifications for which, the court concluded, “the arc of logic trumps the weight

of authority”). The weight of authority supporting the continued use of the Manson rule

must again yield to the arc of logic analyzed so insightfully by Justice Marshall in his

dissent in Manson.

8. The independent source doctrine

5Among the cases not directly affected by our ruling today is State v. Ramirez, which did not involve the

use of any police-arranged, out-of-court identification procedures. See 2018-NMSC-003, ¶¶ 30-32, 409

P.3d 902.

6Besides Massachusetts and New York, only Wisconsin had at one time adopted a constitutionally based

rule of exclusion with respect to unnecessarily suggestive eyewitness identifications, a rule limited in

scope to the suppression of unnecessary out-of-court showups. See State v. Dubose, 2005 WI 126, ¶ 45,

699 N.W.2d 582. The Dubose rule was relatively short-lived, as the Wisconsin Supreme Court, over a

two-justice dissent, recently abrogated the rule and returned to Manson’s two-step due process analysis.

See State v. Roberson, 2019 WI 102, ¶ 3, 935 N.W.2d 813. The reasons for the Wisconsin court’s recent

about-face were disputed in Roberson, with the principal opinion taking the view that Dubose “was

unsound in principle,” particularly in its misplaced reliance on “social science research,” 2019 WI 102, ¶¶

37-44, 46 (Roggensack, C.J.), while the dissent maintained “that Dubose remains sound in principle and

that it is only the composition of this court that has changed.” Id. ¶ 98 (Dallet, J., dissenting)

{73} Pursuant to the independent source doctrine, an in-court identification which is

independent of and not tainted by an out-of-court identification is admissible at trial. See

State v. Flores, 2010-NMSC-002, ¶¶ 57, 60, 147 N.M. 542, 226 P.3d 641 (stating that

pursuant to the independent source doctrine “the issue is whether the witness is

identifying the defendant solely on the basis of his memory of events at the time of the

crime, or whether he is merely remembering the person he picked out in a pretrial

procedure” (internal quotation marks and citation omitted)); State v. Johnson, 2004-

NMCA-058, ¶ 27, 135 N.M. 567, 92 P.3d 13 (same); see also Garrett, supra, at 476-88

(construing the independent source doctrine through analysis of federal case law).

Analysis of the theoretical underpinnings of the independent source doctrine

demonstrates that the doctrine in the context of due process and eyewitness

identification is legally and practically unsound. It is also scientifically unsound.

{74} From a legal perspective, as Garrett writes, the independent source doctrine

“arises from a confusion of two lines of Supreme Court eyewitness identification cases”

decided in the late 1960’s and early 1970’s. Garrett, supra, at 483. The first line of

cases is rooted in Sixth Amendment right-to-counsel jurisprudence contained in United

States v. Wade, 388 U.S. 218, 241-42 (1967), and in Gilbert v. California, 388 U.S. 263,

272-73 (1967). See Garrett, supra, at 483. Wade, 388 U.S. at 241-42, and Gilbert, 388

U.S. at 272-73, held that if a judge determines that a postindictment lineup resulting in

an eyewitness identification was conducted in violation of a defendant’s Sixth

Amendment right to counsel, the in-court identification by the eyewitness is allowed

nevertheless if the identification derives from a source independent of the illegal lineup.

See Garrett, supra, at 483. However, these cases, Garrett argues, rely on “inapposite”

Fourth Amendment precedent applying the independent source exception to evidence

collected as a result of an illegal search or seizure, Garrett, supra, at 483; see Wade,

388 U.S. at 241 (relying on Wong Sun v. United States, 371 U.S. 471, 488 (1963));

Gilbert, 388 U.S. at 272-73 (same), and “now ostensibly only appl[y] to Sixth

Amendment violations of the right to counsel at postindictment lineups.” Garrett, supra,

at 483.

{75} The second line of cases consists of the Fourteenth Amendment due-process

cases arising from Manson, 432 U.S. at 111-12, 114, which explicitly abandoned the

independent source doctrine in favor of the current reliability standard for determining

whether admission of an out-of-court eyewitness identification violates due process.

Garrett, supra, at 483-85. Notwithstanding that the United States Supreme Court

adopted the Manson standard, as Garrett explains, “some courts outright conflate the

lines of cases and cite to Wade when they apply the ‘independent source’ rule in cases

claiming due process (not Sixth Amendment) violations.” Garrett, supra, at 485. This

conflation of United States Supreme Court Sixth Amendment right-to-counsel

jurisprudence with Fourteenth Amendment due-process jurisprudence misstates the

Court’s controlling precedent in Manson and, in application, serves to deprive

defendants of a fair trial by permitting admission of highly prejudicial evidence on an

unsound legal basis.

{76} Additionally, viewing the independent source doctrine from a practical and

scientific perspective further highlights the danger of allowing an avenue for the state to

cure law enforcement misconduct in eliciting an eyewitness identification through

suggestive identification procedures in cases where the identity of the perpetrator is in

dispute. In this scenario, the effect of law enforcement identification procedures on the

eyewitness’s memory is crucial to a court’s due process inquiry because, as we have

already discussed, “eyewitness memory is highly malleable” and every attempt “to test

an eyewitness’s memory will reshape that memory.” Garrett, supra, at 485. The

likelihood that an eyewitness’s memory will be permanently and irreconcilably reshaped

is further compounded by law enforcement’s use of suggestive identification

procedures. See id. Specifically, where law enforcement employs suggestive

identification procedures to elicit an identification from an eyewitness, the eyewitness

subjected to the suggestive identification procedures becomes effectively incapable of

accessing a memory of what the eyewitness saw that is independent of that procedure.

See id. There is, consequently, nothing independent or reliable about an eyewitness’s

memory of events that has been reshaped and otherwise tainted by law enforcement’s

use of suggestive identification procedures.

{77} The independent source doctrine in the context of due process and disputed

eyewitness identification evidence lacks legal justification and is contrary to the existing

science. We hereby abandon the doctrine in the context of disputed eyewitness

identifications.

{78} While we abandon the independent source doctrine for disputed eyewitness

identifications, the doctrine has no applicability in cases where the eyewitness, such as

a domestic violence victim, is personally familiar with the perpetrator of the crime. In

such instances, therefore, the identification is admissible. We also observe that in such

cases, it is highly unlikely either that the identity of the perpetrator will be in dispute or

that a photo array or similar eyewitness identification procedure will be used by law

enforcement to identify the perpetrator in the first place.

9. Elements of the per se rule of exclusion

{79} Under the per se exclusionary rule we adopt herein, if a witness makes an

identification of a defendant as a result of a police identification procedure that is

unnecessarily suggestive and conducive to irreparable misidentification, the

identification and any subsequent identification by the same witness must be

suppressed. The question of whether the identification is unnecessarily suggestive

focuses not only on the identification procedure itself but also on whether the police

have a good reason to use a suggestive identification procedure in the first instance.

This rule in part mirrors the Massachusetts approach to the admission of eyewitness

identification evidence. See Johnson, 45 N.E. 3d at 88; Walker, 953 N.E.2d at 205.

Unlike the Manson rule that examines the “irreparable misidentification” question by

purporting to assess the reliability of an eyewitness’s account, see 432 U.S. at 116-17,

our per se rule of exclusion looks to “the totality of the circumstances attending the

[police/eyewitness] confrontation to determine whether it was unnecessarily

suggestive,” see Silva-Santiago, 906 N.E.2d at 310 (emphasis added) (internal

quotation marks and citation omitted). Our approach also dovetails with that of

Massachusetts in another respect; under both, the central question to be determined on

a motion to suppress identification testimony on due process grounds is “not whether

the [eye]witness might have been mistaken, but whether any possible mistake was the

product of improper suggestions by the police.” Commonwealth v. Watson, 915 N.E.2d

1052, 1057 (Mass. 2009). We also join Massachusetts in concluding that due process

violations stemming from unnecessarily suggestive identification procedures are

amenable to harmless error review. See Jones, 666 N.E.2d at 999, 1001-02

(suppressing a pretrial identification on concluding that error in its admission was not

“harmless beyond a reasonable doubt”).

{80} We depart, however, from the Massachusetts burden-of-proof framework, which

requires a defendant alleging an unnecessarily suggestive eyewitness identification

procedure “to prove, by a preponderance of the evidence, that the witness was

subjected by the [s]tate to a pretrial confrontation . . . so unnecessarily suggestive and

conducive to irreparable mistaken identification as to deny the defendant due process of

law.” Silva-Santiago, 906 N.E.2d at 310 (omission in original) (internal quotation marks

and citation omitted). Under our approach, the initial burden falls on the accused to

establish prima facie that some aspect of the identification procedure employed by the

police was suggestive in nature. If the accused does not meet that burden, suppression

is not required. However, if the accused demonstrates that the identification procedure

contained one or more suggestive elements, the burden shifts to the state to prove by

clear and convincing evidence either that (1) the procedure employed was not so

suggestive as to materially taint the identification made by the eyewitness, which is to

say that any departure from proper procedure could not have increased the risk of

misidentification, or (2) good reason existed for the police to employ the suggestive

procedure in the first instance. If the state fails to carry its responsive burden, the

identification evidence and any subsequent in-court identification must be suppressed.

{81} Our adoption of a clear and convincing standard for the state to meet its burden

in these circumstances is grounded in the due process concerns so convincingly

expressed in Justice Marshall’s dissenting opinion in Manson, see 432 U.S. at 119-27

(Marshall, J., dissenting), and is intended to guard against the improper use of

unnecessarily suggestive pretrial identification procedures whenever feasible. Further,

our placement of the ultimate burden of persuasion on the prosecution to justify

admission of suggestive identification evidence is borne from the reality that law

enforcement agencies—as the administrators of identification procedures—not only

“control[ ] the bulk of the evidence in that regard,” Lawson, 291 P.3d at 689, but with

due diligence and proper guidance can often avoid improperly importing suggestive

practices into the identification procedures entrusted to them.

{82} By our decision today, we only announce the broad contours of a new per se

exclusionary rule for unnecessarily suggestive pretrial identification procedures and do

not purport to fully address the myriad procedural and substantive questions that the

rule’s application may ultimately implicate.

10. Requirement to use scientifically reliable protocols and procedures

{83} From what we have said, it is apparent that due process under the New Mexico

Constitution requires law enforcement agencies to adopt and follow scientifically

supported protocols and practices to minimize mistaken identifications. The legal

literature reflects that while adopting a per se rule of exclusion is a major step forward in

improving standards for evaluating eyewitness evidence, it is inadequate by itself to

combat the misidentification problems inherent in the use of suggestive identification

procedures. See, e.g., Kahn-Fogel, supra, at 122-24. Critical to the proper working of

this type of exclusionary rule, Professor Kahn-Fogel maintains, is its use in tandem with

“scientifically supported guidance on the kinds of conduct that increase the odds of

misidentification.” Id. at 124.

{84} As discussed previously, our Legislature now requires law enforcement to

comply with scientifically sound eyewitness identification “practices” or “protocols.”

Section 29-3B-3(C), (E). The Act by its terms regulates the methodology that must be

used by law enforcement in administering identification procedures, and although it

does not contain sanctions for impermissible police conduct, its provisions necessarily

brush up against court practice and procedure. The Act is well-suited to serve as a

litmus test for suggestiveness. Full compliance with the Act’s specified identification

protocols in a given case is sufficient to establish—absent countervailing defense

evidence of the presence of other forms of suggestive police conduct—that the

identification procedure at issue is not suggestive. On the other hand, agreeing with the

Massachusetts approach to the issue, law enforcement’s failure to follow one or more of

the Act’s protocols in a particular case, while supportive of a finding of suggestive police

conduct, is not, standing alone, decisive of inadmissibility. See Thomas, 68 N.E.3d at

1169. That inquiry is best left for trial judges to answer in the first instance, on a case-

by-case basis: whether the police identification procedure at issue was unnecessarily

suggestive and conducive to mistaken identification.

11. Summary

{85} We hold that Article II, Section 18 of the New Mexico Constitution affords broader

due process protection than the United States Constitution in the context of admission

of eyewitness identification evidence. In conducting eyewitness identification

procedures, law enforcement agencies are required to adopt and follow scientifically

supported protocols and practices to minimize mistaken identification. In addition, our

holding in this case implicates three aspects of eyewitness identification law in New

Mexico.

{86} First, we adopt a new standard for determining whether eyewitness identification

evidence is admissible at trial. Under the new standard, if a witness makes an

identification of a defendant as a result of a police identification procedure that is

unnecessarily suggestive and conducive to misidentification, the identification and any

subsequent identification by the same witness must be suppressed. The question of

whether the identification is “unnecessarily suggestive” focuses not only on the

identification procedure itself but also on whether the police have a “good reason” to

use a suggestive identification procedure in the first place.

{87} Second, we abandon as legally and practically unsound the independent source

doctrine, which has been applied in New Mexico as stated in Flores, 2010-NMSC-002, ¶

57, and in Johnson, 2004-NMCA-058, ¶ 27, to permit the admission of an in-court

eyewitness identification if its source is ostensibly independent of an inadmissible out-

of-court identification.

{88} Third, when a defendant files a pretrial motion to suppress eyewitness

identification evidence, the initial burden is on the defendant to show some indication of

suggestiveness in law enforcement’s administration of the eyewitness identification

procedure. Upon making this showing, the burden shifts to the state to prove by clear

and convincing evidence that either (1) the procedure employed was not so suggestive

as to materially taint the identification made by the eyewitness, which is to say that any

departure from proper procedure could not have increased the risk of misidentification,

or (2) good reason existed for the police to employ the suggestive procedure in the first

instance. If the state fails to carry its responsive burden, the identification and any

subsequent identification by the same witness must be suppressed.

12. Suppression is not required

{89} We now determine the outcome of Defendant’s motion to suppress under our

new test. Again, an order denying suppression of eyewitness identification evidence is

reviewed as a mixed question of fact and law, with the Court viewing the facts “in the

manner most favorable to the prevailing party, and drawing all reasonable inferences in

support of the court’s decision.” Salgado, 1999-NMSC-008, ¶ 16 (brackets

omitted)(internal quotation marks and citation omitted). We review application of the law

to those facts de novo. See Neal, 2007-NMSC-043, ¶ 15. Initially, Defendant was

required to establish prima facie that some aspect of the identification procedure

employed by Detective Jaramillo was suggestive in nature.

{90} Defendant’s expert Dr. Malpass testified, as we have already related, that

suggestive identification procedures can lead to changes in the memory of an

eyewitness, ranging from entirely replacing the witness’s memory to altering the

witness’s memory of particular features of the perpetrator. Dr. Malpass further explained

that a suggestive out-of-court identification taints a subsequent in-court identification

because the in-court identification stems from a contaminated memory. Dr. Malpass

also testified generally that law enforcement agencies should apply “best practices” in

administering photographic eyewitness identifications, which he said include (1) use of

double-blind photo array presentations in which the administrator does not know either

the identity of the suspect or the suspect’s position in the photo array, (2) use of

preidentification instructions, including that (a) the suspect may or may not be presented

in the set of photographs, (b) the witness is not required to make an identification, and

(c) the investigation will continue even if the witness does not make an identification, (3)

use of sufficiently similar filler photographs so that the suspect’s photograph does not

stand out, and (4) elicitation of a “confidence statement” from the eyewitness regarding

the eyewitness’s degree of confidence in having chosen a perpetrator. However, Dr.

Malpass expressed no opinion on whether, or to what extent, a failure to follow one or

more of these “best practices” would result in an unnecessarily suggestive identification

procedure conducive to an irreparable identification. And, none of the testimony about

these “best practices” was specifically related to the identification procedures in this

case. Although Dr. Malpass was critical of some physical facial features of persons

depicted in the photo array in comparison to Defendant’s facial features, we have

already explained that none of those distinctions were so remarkable or unique as to

make one photograph stand out over any other in the group. In this regard, the district

court made a specific finding that “all six individuals all appeared to be Hispanic, all in

the same general age range, all had tattoos. Subject 2, as described by Dr. Malpass,

had additional tattoos above his eyebrows.”

{91} The evidence presented by Defendant failed to establish prima facie that some

aspect of the identification procedure used by Detective Jaramillo was suggestive in

nature. Because Defendant failed to meet this burden, suppression was not required.

B. Admission of Evidence of the Allsup’s Shooting

1. Evidence of prior bad acts

{92} Defendant argues that the district court erred in admitting speculative evidence

concerning the Allsup’s shooting as relevant to the issues of Defendant’s identity as the

perpetrator and his opportunity to access the murder weapon. The State responds that

the evidence was properly admitted under Rule 11-404(B).

{93} “This Court reviews a district court’s decision to admit evidence under Rule 11-

404(B) and Rule 11-403 [NMRA] for an abuse of discretion.” State v. Bailey, 2017-

NMSC-001, ¶ 12, 386 P.3d 1007. “An abuse of discretion occurs when the ruling is

clearly against the logic and effect of the facts and circumstances of the case.” Id.

(internal quotations marks and citation omitted). “We cannot say the trial court abused

its discretion by its ruling unless we can characterize it as clearly untenable or

unjustified by reason.” Id.

{94} Rule 11-404(B)(1) provides that “[e]vidence of a crime, wrong, or other act is not

admissible to prove a person’s character in order to show that on a particular occasion

the person acted in accordance with the character.” However, “[t]his evidence may be

admissible for another purpose, such as proving motive, opportunity, intent, preparation,

plan, knowledge, identity, absence of mistake, or lack of accident.” Rule 11-404(B)(2).

“The initial threshold for admissibility of prior uncharged conduct is whether it is

probative on any essential element of the charged crime.” State v. Gallegos, 2007-

NMSC-007, ¶ 35, 141 N.M. 185, 152 P.3d 828 (internal quotation marks and citation

omitted). “In other words, if a fact is wholly undisputed, the only additional probative

value extrinsic-act evidence would have on that issue would be to show a person’s

propensity” and accordingly must be excluded. Id. “[T]he proponent of the evidence is

required to identify and articulate the consequential fact to which the evidence is

directed before it is admitted.” Id. ¶ 22.

2. Opportunity and identity

{95} The standard for determining whether the opportunity exception to Rule 11-

404(B)(1) applies has not been explicitly decided by New Mexico appellate courts. See

Gallegos, 2007-NMSC-007, ¶ 35 (“Because of our holding, we do not use this case to

divine the mystery of the ‘opportunity’ exception of Rule 11-404(B).”); State v. Gallegos,

2005-NMCA-142, ¶ 29, 138 N.M. 673, 125 P.3d 652 (“The ‘opportunity’ exception to the

prohibition on evidence of other bad acts is something of a mystery.” (internal quotation

marks and citation omitted)), rev’d on other grounds by Gallegos, 2007-NMSC-007, ¶¶

2-3; see also State v. Hall, 1987-NMCA-145, ¶¶ 42-43, 107 N.M. 17, 751 P.2d 701

(holding that if a trial court finds that evidence of opportunity is “relevant to a disputed

issue other than . . . character,” the evidence is admissible if the court determines it to

be more probative than prejudicial).

{96} In Gallegos, noting that Rule 11-404 is “virtually identical” to Federal Rule of

Evidence 404, our Court of Appeals in determining applicability of the opportunity

exception to Rule 11-404(B)(1) utilized the standard used in the First Circuit Court of

Appeals: “[T]o show opportunity is to show that the defendant had some special

capacity, ability or knowledge that would enable him to commit the crime.” Gallegos,

2005-NMCA-142, ¶ 29 (internal quotation marks omitted). (quoting United States v.

Maravilla, 907 F.2d 216, 222 (1st Cir. 1990)). This standard is consistent with

secondary-source discussions of the opportunity exception as well as with the standard

applied in other circuits. See Charles A. Wright & Kenneth W. Graham Jr., 22B Federal

Practice and Procedure ' 5249 at 201 (2d ed. 2017) (stating that opportunity for

purposes of Federal Rule of Evidence 404(b)(2) has been understood to mean “a

person’s physical or mental capacity to perform the act”); see also United States v.

Green, 648 F.2d 587, 592 (9th Cir. 1981) (recognizing that the opportunity exception to

Federal Rule of Evidence 404(b)(1) is intended to cover the category of evidence

related to a defendant’s capacity to carry out an act); United States v. Goichman, 547

F.2d 778, 781-82 (3d Cir. 1976) (determining that a previous instance in which an

attorney accepted checks for a personal injury settlement and endorsed them to his

stockbroker was relevant under the Federal Rules of Evidence Rule 404(b)(2) to show

the attorney’s opportunity for generating unreported income).

{97} At the hearing on the State’s motion to admit evidence of the Allsup’s shooting,

the State established through the Allsup’s surveillance footage and by Defendant’s

admission that he was present at the Allsup’s during an argument that occurred

between his friend and the Allsup’s cashier that occurred at night prior to gunshots

being fired at the store. The evidence showed that after the dispute, Defendant’s friend

told the cashier that he would be back to “get” him. Later that night after Defendant and

his friend left the Allsup’s, a vehicle drove by, and multiple gunshots were fired at the

store. The forensic firearm toolmark evidence established that bullets from the Allsup’s

shooting and the shooting of Cisneros and AO were fired from the same gun.

{98} Taken together, the direct and circumstantial evidence from the Allsup’s shooting

gives rise to the inference that Defendant had access to the firearm used both to shoot

at the Allsup’s and to kill Cisneros and AO. Specifically, the evidence tends to show that

either Defendant or his friend fired the gun at the Allsup’s after his friend’s confrontation

with the Allsup’s cashier, based on his friend’s statement to the cashier that he would be

back to “get” the cashier and based on the fact that the bullet casings from the Allsup’s

shooting and homicide of Cisneros and AO matched. It was not unreasonable for the

district court to conclude from this evidence that Defendant had the “special capacity”

and “ability . . . that would enable him to” access the firearm used to kill Cisneros and

AO. See Gallegos, 2005-NMCA-142, ¶ 29; People v. Billington, 323 N.W.2d 343, 348

(Mich. Ct. App. 1982) (determining that the district court did not err in admitting

evidence of the defendant’s prior act of breaking and entering, where the defendant

admitted to participating in the prior offense, in order to establish the defendant’s

opportunity to access the weapon used in the homicide). Therefore, the district court

reasonably ruled that the evidence of the Allsup’s shooting was relevant under the

opportunity exception to Rule 11-404(B).

{99} The same evidence, however, does not meet the requirements for relevance

under the identity exception to Rule 11-404(B)(1). “The identity exception to Rule 11-

404(B)(1) may be invoked when identity is at issue and when the similarity of the other

crime demonstrates a unique or distinct pattern easily attributable to one person.” State

v. Peters, 1997-NMCA-084, ¶ 14, 123 N.M. 667, 944 P.2d 896 (brackets omitted)

(internal quotation marks and citation omitted). “In determining whether a unique or

distinct pattern has been demonstrated, our focus is on the similarities between the two

offenses, because those similarities establish an inference of identity which is

necessary for relevance.” Id. ¶ 19. Aside from the firearm toolmark evidence indicating

that the bullets from the Allsup’s shooting and shooting of Cisneros and AO were fired

from the same gun, there were no other similarities between the Allsup’s shooting and

the homicide of Cisneros and AO that tended to show a distinct pattern easily

attributable to one person.

{100} These circumstances stand in contrast to cases in which the courts have

determined the evidence supported a finding that other-act evidence was relevant under

the identity exception to Rule 11-404(B)(1). See Peters, 1997-NMCA-084, ¶¶ 15, 20

(determining that similarities between two attacks permitted the inference of a pattern

for purposes of the identity exception to Rule 11-404(B)(1) where both victims were

elderly Caucasian women who lived alone, both were raped, both described their

attacker as a short and small-framed dark man with body odor, both were tied up and

had cloth placed over their heads after the assault, and in both cases the attacker

demanded the victims’ purses before leaving); State v. Allen, 1978-NMCA-054, ¶¶ 5-6,

91 N.M. 759, 581 P.2d 22 (determining that similarities between two attacks permitted

the inference of a pattern for purposes of the identity exception to Rule 11-404(B)(1)

where both victims were abducted at knife point near the same shopping center, both

victims wore glasses and were told shortly after being abducted to remove their glasses,

the abductor told each victim he would use the knife if she tried to escape, the abductor

required each victim to remove her bra and to perform fellatio while he was driving, and

the abductor told each victim he wanted to rape her).

{101} Because the district court reasonably concluded that the evidence of the Allsup’s

shooting was admissible under Rule 11-404(B)(2) as relevant evidence of Defendant’s

opportunity to access the murder weapon, we must also review the district court’s

conclusion that the evidence was also admissible under Rule 11-403. See Bailey, 2017-

NMSC-001, ¶ 15. Rule 11-403 provides that “[t]he court may exclude relevant evidence

if its probative value is substantially outweighed by a danger of one or more of the

following: unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.” For purposes of Rule 11-

403, the term unfair prejudice “means an undue tendency to suggest decision on an

improper basis, commonly, though not necessarily, an emotional one.” Bailey, 2017-

NMSC-001, ¶ 16 (internal quotation marks and citation omitted). “Evidence is unfairly

prejudicial if it is best characterized as sensational or shocking, provoking anger,

inflaming passions, or arousing overwhelmingly sympathetic reactions, or provoking

hostility or revulsion or punitive impulses, or appealing entirely to emotion against

reason.” Id. (internal quotation marks and citation omitted). Because a determination of

unfair prejudice is fact-sensitive, much deference is given to district court judges to fairly

weigh probative value against probable dangers. See id.

{102} Defendant argues that even if this Court concludes the evidence of the Allsup’s

shooting was admissible under an exception to Rule 11-404(B)(1), the probative value

of the evidence was outweighed by its “unfairly prejudicial force.” Specifically,

Defendant asserts that “nothing beyond speculation . . . tied [Defendant] to the Allsup’s

shooting” and the evidence “was highly prejudicial, both because of the violent nature of

the offense and the risk for confusion and speculation” that “because he or [his friend]

shot at the occupied Allsup’s store, [Defendant] likely shot [Cisneros] and [AO]” as well.

We disagree.

{103} The district court reasonably ruled that the probative value of the evidence of the

Allsup’s shooting was not substantially outweighed by the risk of prejudice. As the State

asserts in ruling that the evidence of the Allsup’s shooting was admissible, the district

court ordered that the parties prepare a limiting instruction on how the evidence should

be considered, stating that the evidence was being introduced for the limited purpose of

proving identity and opportunity. The evidence was admitted at trial, and a limiting

instruction was prepared and given in compliance with this order stating,

Evidence has been admitted concerning other acts, to wit: an

incident concerning the discharge of a weapon at the Allsup[’]s store . . .

on September 4, 2014. This evidence has been admitted for the limited

purpose of proving identity or opportunity in relation to the crimes charged.

This evidence should be considered only in so far as you may determine

that the charged conduct and the Allsup[’]s incident may be connected.

{104} The district court’s limiting instruction minimized, if not dispelled, the potential of

undue prejudice to Defendant through speculation or jury confusion by the admission of

the Allsup’s shooting evidence. Specifically, the instruction required the jury to make a

two-step determination in weighing the value of the evidence. The instruction required

the jury to first determine whether the Allsup’s shooting and homicide of Cisneros and

AO were connected, and if so, then the evidence could be considered only as proof of

the identity or opportunity of Defendant to commit the charged crime. See State v.

Woodward, 1995-NMSC-074, ¶¶ 30-31, 121 N.M. 1, 908 P.2d 231 (determining that the

district court did not err in admitting evidence under Rule 11-404(B) on grounds that the

probative value outweighed the risk of unfair prejudice where the district court gave a

limiting instruction that the jury could consider the evidence only for the purpose of

determining whether the defendant had the motive to murder the victim), rev’d on other

grounds by Woodward v. Williams, 263 F.3d 1135, 1142-43 (10th Cir. 2001). Because

the evidence cannot be otherwise fairly characterized as sensational, shocking,

inflammatory, or appealing entirely to emotion against reason, the district court

reasonably ruled that Rule 11-403 did not require exclusion of the Allsup’s shooting

evidence.

{105} Because (1) the district court reasonably concluded that the Allsup’s shooting

evidence was relevant as probative of Defendant’s opportunity to access the firearm

used to kill Cisneros and AO and (2) the probative value of the evidence was not

substantially outweighed by the risk of unfair prejudice, we conclude that the district

court did not abuse its discretion in ruling the evidence was admissible.

C. Exclusion of Cisneros’s Statement to Mirna

{106} Defendant argues that the district court erred in excluding, as inadmissible

hearsay under Rule 11-804(B)(3)(b) for lack of corroborating evidence, Mirna’s

statement against interest concerning a statement Cisneros made to her. In so doing,

Defendant asserts, the district court deprived him of his constitutional right to present a

defense.

{107} “A defendant’s right to present evidence on his own behalf is subject to his

compliance with established rules of procedure and evidence designed to assure both

fairness and reliability in the ascertainment of guilt and innocence.” State v. Sanders,

1994-NMSC-043, ¶ 26, 117 N.M. 452, 872 P.2d 870 (internal quotation marks and

citation omitted);see State v. Rosales, 2004-NMSC-022, ¶ 7, 136 N.M. 25, 94 P.3d 768

(stating that “state rules of evidence do not abridge an accused’s right to present a

defense so long as they are not arbitrary or disproportionate to the purposes they are

designed to serve”) (internal quotation marks and citation omitted)). “Our traditional

rules of . . . hearsay are designed to ensure reliability in the fact-finding process and are

not arbitrary or disproportionate to this legitimate purpose.” Rosales, 2004-NMSC-022, ¶

8.

{108} Hearsay “[m]eans a statement that (1) the declarant does not make while

testifying at the current trial or hearing, and (2) a party offers in evidence to prove the

truth of the matter asserted in the statement.” Rule 11-801(C) NMRA. “Hearsay is not

admissible except as provided by these rules or by other rules adopted by the Supreme

Court or by statute.” Rule 11-802 NMRA. Rule 11-804(B)(3) provides that the statement

of an unavailable witness is excepted from exclusion as hearsay when

(a) a reasonable person in the declarant’s position would have made [the

statement] only if the person believed it to be true because, when made, it

was so contrary to the declarant’s proprietary or pecuniary interest or had

so great a tendency to invalidate the declarant’s claim against someone

else or to expose the declarant to civil or criminal liability, and

(b) [the statement] is supported by corroborating circumstances that

clearly indicate its trustworthiness, if it is offered in a criminal case as one

that tends to expose the declarant to criminal liability.

{109} In assessing the corroborating circumstances of a statement against interest,

New Mexico appellate courts consider six factors:

(1) whether the declarant had at the time of making the statement pled

guilty or was still exposed to prosecution for making the statement, (2) the

declarant’s motive in making the statement and whether there was a

reason for the declarant to lie, (3) whether the declarant repeated the

statement and did so consistently, (4) the party or parties to whom the

statement was made, (5) the relationship of the declarant with the

accused, and (6) the nature and strength of independent evidence

relevant to the conduct in question.

State v. Urias, 1999-NMCA-042, ¶ 7, 127 N.M. 75, 976 P.2d 1027 (internal quotation

marks and citation omitted).

{110} The district court reasonably excluded Cisneros’s statement to Mirna under Rule

11-804(B)(3)(b). As stated previously, Defendant sought to elicit testimony from Mirna

that two weeks prior to his death Cisneros told her, “I stole money from that mechanic

you used to go to,” and Cisneros also showed her cash and drugs, including marijuana

and cocaine. Although this statement, in which Cisneros apparently admitted that he

had stolen money and possessed illegal drugs, had a tendency to expose Cisneros to

criminal liability if communicated to law enforcement, the district court concluded that

the proffered corroborating evidence was insufficient to meet the statement against

interest exception to the rule against hearsay.

{111} Analysis of the Urias factors is largely unhelpful in this case. When Cisneros

made the alleged statement to Mirna, there was no indication whether he had admitted

guilt to stealing the money or possessing the drugs referenced in the statement. There

was no evidence proffered regarding Cisneros’s motive in making the statement to

Mirna or whether the statement was repeated. The only individual to whom Cisneros

apparently made the statement was Mirna, Cisneros’s sister. Without additional

evidence to consider, the district court was left (as is this Court) to consider the nature

and strength of the independent evidence relevant to the conduct in question.

{112} The only independent evidence that Defendant put forward relevant to the

conduct in question was Detective Jaramillo’s testimony that the mechanic at issue,

Gilbert Serrano, told Detective Jaramillo that there had been a large sum of money

stolen from his home. However, as the district court observed, this evidence lacked any

detail regarding what was actually stolen from whom, by whom the property was stolen,

and when the theft occurred. Under these circumstances, the district court reasonably

ruled that Cisneros’s alleged statement to Mirna was unsupported by corroborating

circumstances clearly indicating its trustworthiness under Rule 11-804(B)(3)(b).

Therefore, the district court did not abuse its discretion in excluding Cisneros’s alleged

statement to Mirna as failing to meet the statement against interest exception to the rule

against hearsay. See State v. Benavidez, 1999-NMSC-041, ¶ 4, 128 N.M. 261, 992

P.2d 274 (stating that the admission of evidence under the exception to the rule against

hearsay for statements against penal interest is reviewed for abuse of discretion); see

also State v. Suazo, 2017-NMSC-011, ¶ 9, 390 P.3d 674 (“An abuse of discretion

occurs when the ruling is clearly against the logic and effect of the facts and

circumstances of the case. We cannot say the trial court abused its discretion by its

ruling unless we can characterize the ruling as clearly untenable or not justified by

reason.” (brackets omitted) (internal quotation marks and citation omitted).

{113} Even assuming the district court erred in excluding Mirna’s statement, any such

error was harmless. See State v. Hnulik, 2018-NMCA-026, ¶ 24, 458 P.3d 475 (stating

that errors in the admission of evidence are reviewed for nonconstitutional harmless

error and that nonconstitutional error “is harmless when there is no reasonable

probability that the error affected the verdict” (brackets omitted) (internal quotation

marks and citation omitted)). As stated previously, Defendant argues that exclusion of

Cisneros’s statement to Mirna deprived him of his right to present the defense that

individuals other than Defendant had a motive to kill Cisneros. This argument, however,

overlooks that the district court expressly permitted Defendant to question Mirna “as to

what she observed” when Cisneros made the statement to her and that Defendant

could “argue based on the existence of those drugs, and her observation of them, and

the cash that was available” that “Cisneros was involved in some way in the drug trade,

and that there were other individuals that may be wanting to harm him.” Consistent with

the district court’s ruling, Mirna took the stand and testified that in the weeks prior to his

death, Cisneros showed her cocaine, marijuana, and cash. Furthermore, in closing,

Defendant argued to the jury that evidence was presented showing that individuals

other than Defendant had the motive to kill Cisneros.

{114} Under these circumstances, Defendant was not deprived of the defense and, in

fact, through his examination of Mirna and in closing argument, pursued his theory of

the case that individuals other than Defendant had the motive to kill Cisneros. There

was therefore no reasonable probability that the district court’s exclusion of Cisneros’s

statement to Mirna affected the jury’s verdict. Accordingly, we conclude that the district

court did not abuse its discretion or otherwise err in excluding Cisneros’s alleged

statement to Mirna.

D. The District Court’s Denial of Defendant’s Proffered Instruction on

Informant Testimony

{115} Defendant argues that the district court erred in declining to give his requested

instruction on informant testimony considering the particularly unreliable nature of

Montoya’s trial testimony. The State responds that the district court correctly declined to

give Defendant’s proffered instruction because (1) it was superfluous, (2) it was not

based on a uniform jury instruction, and (3) it lacked impartiality. We agree.

{116} “The propriety of denying a jury instruction is a mixed question of law and fact

that we review de novo.” State v. Baroz, 2017-NMSC-030, ¶ 13, 404 P.3d 769 (internal

quotation marks and citation omitted). In proffering the instruction on informant

testimony based on the Tenth Circuit Criminal Pattern Jury Instruction 1.14, Defendant

preserved his jury instruction challenge. Review is therefore for reversible error. Baroz,

2017-NMSC-030, ¶ 13.

{117} “Ordinarily, a defendant is not entitled to a specific instruction where the jury has

already been adequately instructed upon the matter by other instructions.” State v.

Venegas, 1981-NMSC-047, ¶ 9, 96 N.M. 61, 628 P.2d 306. New Mexico appellate

courts have also repeatedly recognized that a district court does not err in refusing to

give additional instructions on witness credibility where the district court gives UJI 14-

5020. See State v. Ortega, 1991-NMSC-084, ¶ 72, 112 N.M. 554, 817 P.2d 1196

(concluding that where all of the defendant’s proffered instructions concerned witness

credibility, witness bias and hostility, witness interest in outcome of the case, testimony

of accomplices called by the state, immunity of the state’s witnesses, and the plea

agreement entered into with witnesses or codefendants, the district court did not err in

denying such instructions where it gave UJI 14-5020), abrogated on other grounds by

Kersey v. Hatch, 2010-NMSC-020, ¶¶ 17-18, 148 N.M. 381, 237 P.3d 683; State v.

Gallegos, 1993-NMCA-046, ¶¶ 10-11, 115 N.M. 458, 853 P.2d 160 (concluding that

district court did not err in rejecting the defendant’s tendered instruction that would have

focused the jury’s attention on the reliability of an eyewitness’s identification where the

court gave UJI 14-5020); State v. Hogervorst, 1977-NMCA-057, ¶ 60, 90 N.M. 580, 566

P.2d 828 (concluding that the district court’s refusal to give various instructions tendered

by the defendant concerning the credibility of certain witnesses was not error, where the

district court gave the jury the general uniform jury instruction on witness credibility).

Additionally, jury instructions that give “undue emphasis to the [d]efendant’s theory of

the case” are improper. State v. Sanders, 2000-NMSC-032, ¶ 23, 129 N.M. 728, 13

P.3d 460. Commentary on the evidence is “implicitly” inappropriate in a jury instruction

and “is a matter that should be left for argument.” State v. Padilla, 1977-NMCA-055, ¶

13, 90 N.M. 481, 565 P.2d 352.

{118} As we have stated, in light of Montoya’s testimony concerning Defendant’s

alleged admission to shooting Cisneros and AO, Defendant proffered a jury instruction

on informant testimony modeled after the Tenth Circuit Criminal Pattern Jury Instruction

1.14. While the proffered instruction was not included in the record, Defendant asserts

that the instruction provided the following:

An informant is someone who provides evidence against someone else for

a personal reason or advantage. The testimony of an informant alone, if

believed by the jury, may be of sufficient weight to sustain a verdict of

guilt, even though not corroborated or supported by other evidence. You

must examine and weigh an informant’s testimony with greater care than

the testimony of an ordinary witness. You must determine whether the

informant’s testimony has been affected by self-interest, by an agreement

he has with the government, by his own interest in the outcome of the

case, or by prejudice against the defendant.

You should not convict a defendant based on the unsupported testimony

of an informant, unless you believe the unsupported testimony beyond a

reasonable doubt.

See Tenth Circuit Criminal Pattern Jury Instruction 1.14 (2014, updated 2018) However,

as we have already stated, the jury was given an instruction modeled after UJI 14-5020

concerning witness credibility.

{119} In light of these facts, there was no error in refusing Defendant’s instruction on

informant testimony for the three reasons argued by the State. First, because the jury

was given an instruction modeled after UJI 14-5020, the jury was adequately instructed

on the issue of evaluation of witness credibility. As the State asserts, Defendant’s

informant testimony instruction was “superfluous” where the jury was instructed

pursuant to UJI 14-5020 to “take into account the witness’s truthfulness or

untruthfulness” and to consider “any interest, bias or prejudice the witness may have” in

the case. Second, Defendant’s proffered instruction was based on a “[n]on-[u]niform

[j]ury [i]instruction” inconsistent with New Mexico law. See State v. Smith, 1975-NMCA-

139, ¶¶ 21-22, 27, 88 N.M. 541, 543 P.2d 834 (stating that decisions of the Tenth Circuit

supporting the giving of instructions on particular categories of witness credibility “do not

reflect New Mexico law” and that such instructions “should not be given unless required

by statute or rule of court”). Finally, the refused instruction lacked impartiality as it

directed the jury to “weigh an informant’s testimony with greater care than the testimony

of an ordinary witness.” This instruction would have had the effect of placing extra

emphasis on Montoya’s testimony and Defendant’s theory of the case that Montoya

lacked credibility⸻an issue of commentary on the evidence properly left to closing

argument. See State v. Hornbeck, 2008-NMCA-039, ¶¶ 26, 27, 143 N.M. 562, 178 P.3d

847 (concluding that the defendant in a prosecution for fraud was not entitled to a jury

instruction stating that a debtor-creditor relationship with a subsequent failure to repay

the loan does not itself constitute fraud because the statement “was a matter to be

argued to the jury, rather than included in a jury instruction”).

III. CONCLUSION

{120} We affirm the judgment and sentence of the district court.

{121} IT IS SO ORDERED.

MICHAEL E. VIGIL, Chief Justice

WE CONCUR:

BARBARA J. VIGIL, Justice

JUDITH K. NAKAMURA, Justice

C. SHANNON BACON, Justice

DAVID K. THOMSON, Justice