Young v. State

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email

corrections@akcourts.us.

THE SUPREME COURT OF THE STATE OF ALASKA

ARRON N. YOUNG, )

) Supreme Court No. S-15665

Petitioner, ) Court of Appeals Nos. A-11006/11015

)

v. ) Superior Court Nos. 4FA-08-03022/

) 02834 CR

STATE OF ALASKA, )

) OPINION

Respondent. )

) No. 7110 - June 17, 2016

Petition for Hearing from the Court of Appeals of the State of

Alaska, on Appeal from the Superior Court of the State of

Alaska, Fourth Judicial District, Fairbanks, Michael A.

MacDonald, Judge.

Appearances: Renee McFarland, Assistant Public Defender,

and Quinlan Steiner, Public Defender, Anchorage, for

Petitioner. Eric A. Ringsmuth, Assistant Attorney General,

Anchorage, and Craig W. Richards, Attorney General,

Juneau, for Respondent.

Before: Fabe, Chief Justice, Stowers, Maassen, and Bolger,

Justices. [Winfree, Justice, not participating.]

MAASSEN, Justice.

I. INTRODUCTION

A defendant accused of involvement in a shooting was convicted at trial,

in part on the strength of three eyewitness identifications. He challenged the

admissibility of two of the identifications on due process grounds, but the superior court

ruled them admissible. The defendant also requested an eyewitness-specific jury

instruction, which the superior court refused. Finally, the defendant argued that he was

entitled to a mistrial because of an alleged discovery violation by the State that he

learned of mid-trial. The superior court denied his motion, finding that the State had not

violated the disclosure rules and alternatively that the defendant had not suffered any

prejudice. The defendant was convicted, and the court of appeals affirmed his

conviction.

On petition to this court, the defendant argues not only that we should

reverse his conviction based on the current law on the admissibility of eyewitness

identifications but also that Alaska’s due process clause requires the adoption of a new

test. He also argues that the superior court erred in failing to give his requested jury

instruction and in failing to grant him a mistrial.

We hold that the superior court erred under the law as it currently exists

when it held one of the eyewitness identifications sufficiently reliable to be admitted at

trial, but that it did not err in admitting the other. We also hold that the superior court

erred in refusing to give an eyewitness-specific jury instruction but did not err in denying

a mistrial. Because the errors are harmless, we affirm the defendant’s conviction.

We also conclude, however, that the current test for the admissibility of

eyewitness identification evidence does not adequately protect the right to due process

under the Alaska Constitution. We therefore identify factors that courts should consider

in future cases when deciding whether to admit eyewitness identification evidence.

-2- 7110

II. FACTS AND PROCEEDINGS

A. The Crime And The Investigation

During the summer of 2008 a series of violent incidents took place in the

Fairbanks area between members of two gangs, the Bloods and the Crips. In late July

there was a fight inside the Fairbanks Walmart; in early August there was another at the

Tanana Valley Fair. Persons known or alleged to be current or former members of the

Bloods were later shot at outside the Eagles Hall by persons shouting Crips slogans.

The incident at issue here occurred on August 15 at approximately

4:00 p.m. A green Buick sedan carrying alleged members of the Bloods was traveling

down College Road in Fairbanks, followed by friends in another car. Another vehicle

variously described as a gray, silver, or white SUV passed them going the other way,

made a U-turn, and pulled up alongside the Buick. Someone in the SUV started shooting

at the Buick and continued to do so while the vehicles raced along for what was later

estimated to be two miles.

No one was injured in the shooting, but the Buick was significantly

damaged. Bullets also passed through two uninvolved vehicles, narrowly missing their

passengers. A bystander walking her bike reported hearing a bullet pass by her head; she

jumped into a ditch to take cover.

Later that evening the police arrested Arron Young. He had a gun in the

waistband of his pants and the key to a silver SUV in his pocket.

The police interviewed witnesses from the scene and put out a request for

those with information to come forward. Jason Gazewood, a criminal defense attorney

and former prosecutor, contacted the police department to report that he had witnessed

part of the gunplay. A police detective visited Gazewood’s office and showed him a six­

-3- 7110

person photographic array; Gazewood picked Young as looking most like the man he

had seen behind the wheel of the SUV.

A grand jury convened in September 2008. There Gazewood testified

about what he had seen. Another witness, Arles Arauz, also identified Young as the

driver of the SUV. Although Arauz had told the police immediately after the incident

that he was unable to identify the assailants, at the grand jury hearing he picked Young’s

picture out of a photographic array. But a third grand jury witness, John Anzalone, failed

to identify Young and picked another man instead.

The grand jury indicted Young for attempted murder in the first degree and

misconduct involving weapons in the first degree.

B. Young’s Motion To Suppress Gazewood’s Identification

Trial was eventually set for January 4, 2010. In late December 2009 Young

moved to suppress Gazewood’s pretrial and in-court identifications, claiming that the

pretrial identification procedure had been unnecessarily suggestive.

The superior court held an evidentiary hearing. Gazewood testified that the

police detective had come to his office about three days after the incident and showed

him a six-person photographic array. He testified that he remembered “saying something

about . . . having a recollection of it being someone of Samoan descent . . . before the

lineup was brought out,” though he could not recall whether he said this on the telephone

or after the detective arrived at his office. The detective testified that he did not

remember whether Gazewood had identified the driver’s race in the phone call.

The photographic array contained photographs of six black men but no

Samoans. The detective testified that, because Gazewood was an attorney experienced

in criminal law, he did not give Gazewood any instructions before showing him the

array; he assumed Gazewood would understand the process and its purpose. Gazewood

-4- 7110

testified that although he was given no instructions, he assumed that the array contained

the suspect because he had been involved in many such procedures in the past. He also

testified, however, that he did not feel he was required to select someone from among the

photos he was shown.

Gazewood testified that he quickly narrowed his choice to two photos, one

of which was Young’s. Though conflicted, he was most focused on Young; he testified

that the way Young’s hair was pulled back in the photograph made him “more like the

person I’d seen in the vehicle certainly.” He testified that he put his finger tentatively

on Young’s photograph, at which point the detective told him to “trust your instincts.”

Gazewood testified that the detective’s remark terminated his deliberations, and he

selected Young as the man who looked most like the one he had seen in the SUV. When

asked at the hearing whether he believed the detective was suggesting the desired result,

he answered:

Yeah, I . . . think he saw me laboring over it and spending a

little more time pointing to Mr. Young than the other two, or

the other one by the time I had eliminated one of them. And

I took it as, you know, you’re pointing to this guy more than

the others, you know, that’s the guy you should identify. . . .

I took it as that’s the guy we want you to pick.

Gazewood testified that he was leaning toward Young anyway but that the detective’s

remark “ended this elimination process that I was kind of . . . undergoing. . . . [I]t was

a process that was taking a little bit of time and . . . that certainly ended it.” The detective

testified that he did not remember telling Gazewood to “trust your instincts” but that he

knew Young was the suspect and knew Young’s photograph was included in the array.

-5- 7110

At the evidentiary hearing Gazewood also testified about what he saw of

the crime. He testified that while he was waiting at a stoplight on College Road, “the

thing that drew [his] attention” was that a “green car” coming from behind him drove

“into the oncoming lanes of traffic” to get around the cars waiting at the light. He

testified that he then saw a white SUV coming up quickly behind him, and that he

observed the driver of the SUV in his rearview mirror for “between three and eight

seconds” before the vehicle passed him on the left in pursuit of the green car. He also

testified that he had seen Young’s photo in the newspaper a week before the evidentiary

hearing, and the newspaper photo looked more like the person he recalled seeing at the

time of the shooting than did the photo he picked in the array.

The superior court denied Young’s motion to suppress. Employing the test

we have adopted from Manson v. Brathwaite, a decision of the United States Supreme

Court,1 the superior court first found that the photographic array itself was not

unnecessarily suggestive because there was “nothing in the photo array to distinguish the

defendant’s photo from the others.” The court found that the detective made the “trust

your instincts” comment but that it was not suggestive and did not influence Gazewood’s

choice. Finally, the court determined that even if the procedure was unnecessarily

suggestive, Gazewood’s identification of Young was still reliable under the totality of

the circumstances and therefore admissible.

1

Holden v. State, 602 P.2d 452, 456 (Alaska 1979) (quoting Manson v.

Brathwaite, 432 U.S. 98, 114 (1977)). As we explain below, the Brathwaite test first

determines whether the identification procedure was unnecessarily suggestive; if it was,

then the court must evaluate several factors to assess whether the identification was

nonetheless reliable.

-6- 7110

C. Trial

1. Pretrial disclosure of Anzalone’s identification of Young

On the first day of trial Young informed the court that the State had just

disclosed a police report stating that John Anzalone, who had failed to select Young from

the photographic array when testifying before the grand jury, would now identify Young

as one of the shooters. Anzalone had informed the prosecutor that he had seen Young’s

picture on television in connection with the case about a week before trial and was

prepared to identify him in court.

Young objected to Anzalone’s testimony. He claimed that the pretrial

publicity had tainted Anzalone’s identification and it was therefore unreliable. He

argued that any in-court identification by Anzalone would be improperly suggestive

because Young would be the only African-American man sitting at the defense table and

this suggestiveness could not be overcome because Anzalone’s identification of Young

otherwise lacked sufficient indicia of reliability. The superior court ruled that while

Anzalone could not testify that he had first recognized Young on television (unless the

defense raised the issue on cross-examination), he could identify Young in the

courtroom. The court determined that Anzalone’s failure to pick Young from the initial

photo array did not affect his ability to identify Young at trial, and that any problems

with the in-court identification were properly addressed through cross-examination.

2. The State’s case at trial

The State presented testimony from occupants of the Buick sedan and the

following vehicle, only one of whom, Arauz, could identify a shooter. Some witnesses

were unable to say how many people were in the assailants’ SUV, while others testified

-7- 7110

it had two to four occupants. One witness testified that the assailants had bandanas over

their faces.2

The driver of the Buick, Joseph Fainuu, testified that although he did not

see who was shooting at them, the shots were coming from a gray SUV. He testified that

the SUV was the one identified by the State. He further testified that he knew Young by

the nickname “Big Nasty” and that he had seen Big Nasty driving the SUV at times

before the shooting. Another of the Buick’s occupants testified that he had heard others

refer to the gray SUV as “Big Nasty’s car” at the time of the Eagles Hall shooting, and

that, though he could not identify Young as a participant in the College Road shooting,

the SUV the State alleged to belong to the shooters appeared to him to be Big Nasty’s

car. And another witness who had been riding in the second vehicle testified that he

heard someone in his car identify the silver SUV as “Big Nasty’s truck” right before the

shooting started.

The State’s ballistics evidence indicated that shell casings retrieved from

the scene of the shooting were probably ejected from the gun found in Young’s

waistband at the time of his arrest. The State also established that the key found in

Young’s pocket fit the silver SUV identified as the one used in the shootings.

The State presented three eyewitnesses to place Young at the scene.

Consistent with his testimony at the evidentiary hearing, Gazewood testified that Young

looked like the man he saw drive past him in the SUV. His testimony, however,

reflected some uncertainty. He did not say Young was definitely the driver, only that

2

The State also presented testimony about the property damage and near-

misses from bullets fired from the SUV, testimony detailing the investigation and other

gang-related incidents in Fairbanks, and testimony of a gang expert linking Young to

gang membership.

-8- 7110

upon seeing Young’s photo in the array he “thought that . . . that looked a lot like the

person there and then seeing [Young’s] photograph in the paper made me think that that

looked a lot like the person I’d seen.”

The second eyewitness, Anzalone, testified that he was starting a left turn

at a traffic light on College Road when he heard “several popping noises” coming from

his left. He testified that he saw two vehicles coming directly toward him and “what

looked like somebody firing a pistol out of [the] driver’s side window” of one of them,

an SUV. He testified that he reversed back through the intersection to avoid the

oncoming vehicles and, while doing so, observed Young at the wheel of the SUV,

though he did not make note of any passengers. Anzalone identified the driver

definitively in court as the man “sitting at the defense table,” but he also acknowledged

his earlier failure at the grand jury to pick Young out of a photo array.

The third eyewitness, Arles Arauz, was an admitted former member of the

Bloods. Arauz had known Young since high school, when Young “beat [him] up” in a

fight over a romantic interest. Arauz testified that at the time of the shooting he was

riding in the vehicle following the Buick sedan. He testified that the Buick started a U-

turn, at which point a gray SUV “pull[ed] up and — from the back behind and then

start[ed] shooting at it.” He testified that he saw Young driving the gray SUV as it

passed him in pursuit of the Buick.

Young sought to impeach Arauz on grounds that, although he had identified

Young at the grand jury, he had told investigating detectives right after the crime that he

could not identify any of the shooters. But Arauz insisted he had identified Young to the

police on the night of the shooting; this caused some confusion at trial. In the absence

of the jury, Arauz testified that the night of the shooting, after he had denied knowing

any of the shooters, he met with one of the investigating detectives in an off-the-record

-9- 7110

interview and identified Young. The superior court recessed for the day to allow the

prosecution to investigate the matter.

3. Young’s motion for mistrial based on Arauz’s newly revealed

statements to an investigator

The next morning the State filed with the court a supplemental report of an

investigating detective, Detective Elzey, which described how he had indeed met with

Arauz a second time on the night of the shooting, after Arauz’s initial failure to identify

any of the shooters. The report explained that an unidentified man had called the police

station that night, stating that a friend knew about the shooting but would talk to

investigators only if what he told them was not written down or recorded. Elzey agreed

to these terms, and Arauz appeared at the police station and identified Young as the

shooter. Called to the stand for voir dire, Elzey testified that he did not disclose this

conversation to the prosecutor because he had promised not to. Instead, he decided to

wait to see how Arauz testified at the grand jury; if Arauz again identified Young, the

detective would consider the matter resolved, and if he did not identify Young the

detective would inform the prosecutor of the inconsistency. When Arauz positively

identified Young at the grand jury, Elzey decided that no disclosure was necessary.

Young moved for a mistrial. He argued that the State’s failure to disclose

Arauz’s same-day identification of Young violated Rule 16 of the Alaska Rules of

Criminal Procedure and prejudiced his defense, which rested in part on showing that

Arauz decided to falsely identify Young at the grand jury only after learning that Young

was already a suspect. Young argued that Arauz’s earlier identification, before he knew

that Young was a suspect, damaged his ability to impeach Arauz, and that had he known

before trial of the same-day identification he might have pursued a defense of

justification instead of denying his involvement.

-10- 7110

The superior court denied the motion. It found that there was no violation

of Rule 16 because the rule requires only disclosure of written or recorded witness

statements, and Arauz’s statement to Detective Elzey was neither written nor recorded;

it also found that disclosure of Arauz’s grand jury identification satisfied the

requirements of the rule. The court further found that, even if there had been a violation

of Rule 16, Young was not prejudiced because he knew from the grand jury testimony

that Arauz would identify Young as the shooter. But the court offered to continue trial

for a day to allow Young to further investigate the matter,3 and it allowed the defense the

option of excluding evidence that would corroborate Arauz’s claim that he had made a

same-day identification.

4. Young’s defense

Young presented his alibi defense. His sister Angie testified that although

she and Young were estranged and had not seen each other much in the years leading up

to the shooting, she was with him that afternoon at his apartment. She testified that a

person she knew as “Little O” came over during the afternoon and gave Young a gun.

Young also presented evidence disputing his possession or ownership of the SUV, as

well as evidence relating to the earlier gang disputes that implicated a different Crips

faction than the one to which he belonged.

3

The superior court said it was giving the defense “four days of investigation

in response to the request for continuance,” but the four days included a three-day

holiday weekend, and Young’s attorneys informed the court that their investigator might

not be available on those days.

-11- 7110

5. Young’s requested jury instructions

After the close of evidence, Young asked the court to give a jury

instruction, based on case law from the Alaska Court of Appeals and other jurisdictions,

that identified factors affecting the reliability of eyewitness identifications. Alternatively,

Young asked the court to give the jury instruction approved by a federal appeals court

in United States v. Telfaire.4 The superior court declined to give either one. It found

Young’s customized instruction “more argument than it [was] a proposition of law,”

rejected the Telfaire instruction on the same grounds, and decided that the issues raised

by the eyewitness identifications were fully addressed by the existing pattern jury

instructions regarding the credibility of witnesses generally and the State’s burden of

proof.

The jury convicted Young on all counts.

D. Appeal To The Court Of Appeals And Petition For Hearing

Young appealed his conviction to the court of appeals.5 He argued first that

the superior court erred when it failed to suppress Gazewood’s identification under the

standard set out in Manson v. Brathwaite.6 The court of appeals disagreed with the

superior court in part, holding that the identification procedure had indeed been

unnecessarily suggestive.7 But the court of appeals ultimately found no error in

4

469 F.2d 552 (D.C. Cir. 1972).

5

Young v. State, 331 P.3d 1276 (Alaska App. 2014).

6

Id. at 1278-80.

7

Id. at 1279-80 (discussing Tegoseak v. State, 221 P.3d 345 (Alaska App.

2009)).

-12- 7110

admitting Gazewood’s identification, concluding that it was nonetheless reliable under

the totality of the circumstances.8

Young also argued that the superior court erred when it allowed Anzalone

to make his in-court identification.9 The court of appeals noted the superior court’s

reasoning: (1) “that it was not impermissible for a witness who failed to identify a

defendant in a lineup to make an in-court identification later”; (2) “that Young could

cross-examine Anzalone and bring out the factors that might cast doubt on Anzalone’s

identification”; and (3) that although Young was the only African-American man at the

defense table, “in a criminal trial, the defendant is almost always the only person at the

defense table aside from his attorney.”10 On this rationale, the court of appeals held “that

the [superior] court did not abuse its discretion by permitting Anzalone to make an in-

court identification.”11

Young also challenged the superior court’s failure to give either of his

requested jury instructions on eyewitness testimony.12 As the court of appeals noted,

Young acknowledged “that this court has previously affirmed convictions where the trial

court gave the pattern instruction instead of a more focused instruction on eyewitness

identification”;13 the court of appeals “adhere[d] to those prior decisions and conclude[d]

8

Id. at 1279-81.

9

Id. at 1281.

10

Id.

11

Id.

12

Id.

13

Id.

-13- 7110

that the trial court did not abuse its discretion in giving the pattern jury instruction in this

case.”14

Finally, Young argued that the superior court erred when it refused to grant

a mistrial based on the State’s failure to disclose Arauz’s same-day identification of

Young as one of the assailants.15 The court of appeals held that the superior court erred

in deciding that the failure was not a discovery violation, because the prosecution’s

conduct “violated both the text and the spirit of Criminal Rule 16, which is designed to

prevent precisely this type of unfair surprise.”16 It concluded, however, that the superior

court had not erred in refusing to grant a mistrial, because Young had failed to show

prejudice.17 The court of appeals observed that “the major prejudice Young alleged” was

that he might have abandoned his alibi defense for a defense of justification; it also

observed, however, that a justification defense would have been “completely

inconsistent” with either Young’s alibi defense or the State’s evidence.18 Further,

“Young did not make an offer of proof or ask to present information to the court in

camera to establish that he had evidence to support the defense.”19 The court of appeals

accordingly found no error in the superior court’s denial of a mistrial.20

14

Id.

15

Id. at 1281-82.

16

Id. at 1282-83.

17

Id. at 1283.

18

Id.

19

Id.

20

Id.

-14- 7110

Young filed a petition for hearing with this court. He urged us to abandon

our reliance on Manson v. Brathwaite, “adopt a different test for the admission of

eyewitness identification evidence under the Alaska Constitution,” and reverse his

conviction. He argued that even in the absence of a new test, Alaska law required that

the Gazewood and Anzalone identifications be excluded. He also argued that the court

of appeals erred by affirming the superior court’s refusal to give his requested

instructions and to grant a mistrial. We granted Young’s petition.

III. STANDARD OF REVIEW

“The proper extent of appellate review for an unpreserved claim of

constitutional error is a question of law that we review de novo.”21 “We apply our

independent judgment to any questions of law, adopting the rule of law that is most

persuasive in light of precedent, reason, and policy.”22

The determination whether an identification has been derived from

unnecessarily suggestive identification procedures and, if so, whether it is nonetheless

sufficiently reliable to be admitted at trial in conformance with due process is a mixed

question of law and fact.23 On mixed questions we “review[] the superior court’s factual

findings for clear error, and the legal issues de novo.”24

21

Johnson v. State, 328 P.3d 77, 81 (Alaska 2014).

22

Brooks v. Horner, 344 P.3d 294, 297 (Alaska 2015) (quoting Holmes v.

Wolf, 243 P.3d 584, 588 (Alaska 2010)).

23

See Cooper v. Bergeron, 778 F.3d 294, 300 (1st Cir. 2015) (citing Sumner

v. Mata, 455 U.S. 591, 597 (1982)).

24

Brown v. Knowles, 307 P.3d 915, 923 (Alaska 2013) (alteration in original)

(quoting Dashiell R. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs.,

222 P.3d 841, 849 (Alaska 2009)).

-15- 7110

“As long as the jury is properly instructed on the law, . . . the trial [judge]

has broad discretion to determine whether to give instructions specially tailored to the

case at hand.”25 “Issues involving the adequacy of jury instructions generally raise

questions of law and are subject to de novo review.”26

“[T]he trial court is vested with ‘wide discretion’ in determining whether

a mistrial should be granted and its decision will be disturbed only if an abuse of

discretion is shown.”27

IV. DISCUSSION

In its 2009 opinion in Tegoseak v. State, the court of appeals highlighted

a number of weaknesses in the way courts, including Alaska’s, have evaluated the

reliability of eyewitness testimony in the decades since the United States Supreme

Court’s formative opinion in Manson v. Brathwaite.28 Young contends that it is time for

this court to take a similarly close look at the scientific evidence related to eyewitness

identifications and to change the standards for determining their admissibility and the

instructions that inform juries about how to assess their weight. As explained below,

while we conclude that a change in the way we evaluate eyewitness identifications would

not change the result in Young’s case, we agree that a Brathwaite-based test fails to take

into account the myriad factors now generally known to affect the reliability of

25

Power Constructors, Inc. v. Taylor & Hintze, 960 P.2d 20, 29 (Alaska

1998); see also Alaska R. Crim. P. 30.

26

Power Constructors, Inc., 960 P.2d at 29 (citing Sever v. Alaska Pulp

Corp., 931 P.2d 354, 361 n.11 (Alaska 1996)).

27

Amidon v. State, 565 P.2d 1248, 1261 (Alaska 1977).

28

Tegoseak v. State, 221 P.3d 345, 350-63 (Alaska App. 2009) (discussing

at length Manson v. Brathwaite, 432 U.S. 98 (1977)).

-16- 7110

eyewitness evidence, and that such a test can no longer be viewed as consistent with

Alaska’s constitutional guarantee of due process.

A. Young’s Challenges To The Eyewitness Identifications Admitted At

Trial Do Not Require Reversal Of His Conviction.

Young argues that it was error to admit the Gazewood and Anzalone

identifications at trial. He first contends that because the test we use to evaluate

eyewitness identifications is insufficiently protective of due process, we should adopt in

its place a new test based in part on due process protections and in part on the Alaska

Rules of Evidence. He also contends that it was error to admit the Gazewood and

Anzalone identifications even under current law.

Young did not explicitly propose a new test for eyewitness identification

evidence to the superior court or the court of appeals. Having arguably failed to preserve

the issue, he urges us to adopt a “futility exception” to the preservation rule. We see no

need to do so here. First, we conclude that it was error to admit Gazewood’s

identification of Young at trial even under the existing Brathwaite test, as we discuss

below, though we also conclude that the error was harmless. Second, we conclude that

it was not error to admit Anzalone’s in-court identification and that our conclusion would

not be different under a new, more protective test. Thus, the application of a new test for

the admissibility of eyewitness identifications would not change the result in Young’s

case.

As noted above, however, we are nonetheless convinced that the Brathwaite

test does not adequately screen out unreliable eyewitness identifications at trial and

therefore does not adequately protect defendants’ due process rights under the Alaska

Constitution. We outline today the factors relevant to the admission of eyewitness

identification testimony that courts should consider in future cases.

-17- 7110

1. Under the Brathwaite test it was error to allow Gazewood to

identify Young as the driver — but that error was harmless.

Nearly 50 years ago the United States Supreme Court decided that a pretrial

identification procedure could be “so unnecessarily suggestive and conducive to

irreparable mistaken identification that [a defendant] was denied due process of law”

when the witness later testified at trial about the pretrial identification29 or identified the

defendant in court as the perpetrator.30 We embraced these principles as consistent with

the due process clause of the Alaska Constitution.31

In Manson v. Brathwaite, the Supreme Court clarified that an unnecessarily

suggestive pretrial identification procedure does not require automatic exclusion of the

29

Stovall v. Denno, 388 U.S. 293, 295, 302 (1967).

30

See Simmons v. United States, 390 U.S. 377, 382-84 (1968).

31

See Buchanan v. State, 561 P.2d 1197, 1204-05 (Alaska 1977) (discussing

Stovall, 388 U.S. at 302 and Simmons, 390 U.S. at 382-84); Klockenbrink v. State, 472

P.2d 958, 961-62 (Alaska 1970) (discussing Stovall, 388 U.S. 293). Although our past

cases have focused on the particular elements relevant to each case’s facts rather than

explaining the test comprehensively, see, e.g., Viveros v. State, 606 P.2d 790, 792 & n.1

(Alaska 1980) (evaluating photographic lineup for suggestiveness and reliability and

declining to adopt rule of per se exclusion because it “runs counter to the clear weight

of authority in Alaska and the federal system”); Holden v. State, 602 P.2d 452, 455-57

(Alaska 1979) (examining identification derived from showup procedure for reliability

according to Brathwaite, 432 U.S. at 114, without explicitly addressing unnecessary

suggestiveness), the Brathwaite test has been accepted as consistent with the Alaska

Constitution. See also Anderson v. State, 123 P.3d 1110, 1116 (Alaska App. 2005)

(“[O]ur supreme court has never expressly rejected federal law on this subject (the law

declared in Stovall and Brathwaite) in favor of a different rule adopted under our state

constitution. Rather, the test in Alaska is the same one announced by the United States

Supreme Court . . . .”).

-18- 7110

identification on due process grounds.32 Rather, “reliability is the linchpin in

determining the admissibility of identification testimony.”33 In determining reliability,

“[t]he factors to be considered are set out in [Neil v.] Biggers” (the “Biggers factors”),

which “include the opportunity of the witness to view the criminal at the time of the

crime, the witness’ degree of attention, the accuracy of his prior description of the

criminal, the level of certainty demonstrated at the confrontation, and the time between

the crime and the confrontation.”34 “Against these factors is to be weighed the corrupting

effect of the suggestive identification itself,” evaluated in light of the totality of the

circumstances.35

In this case, the superior court found that the procedure used for

Gazewood’s initial identification of Young (including the detective’s comment to “trust

your instincts” as Gazewood lingered over Young’s photo) was not unnecessarily

suggestive. It also found that the identification was sufficiently reliable to be admitted

even if the procedure had been unnecessarily suggestive. The court of appeals held that

the superior court erred in determining that the procedure was not unnecessarily

suggestive but that the identification was nonetheless sufficiently reliable to be

admitted.36 We agree with the court of appeals’ first conclusion but disagree with its

second. We hold that in addition to being the product of an improperly suggestive

procedure, Gazewood’s identification was not sufficiently reliable to be admitted.

32

432 U.S. 98, 106-07, 114 (1977).

33

Id. at 114.

34

Id. (citing Neil v. Biggers, 409 U.S. 188, 199-200 (1972)).

35

Id.

36

Young v. State, 331 P.3d 1276, 1278-81 (Alaska App. 2014).

-19- 7110

Accordingly, we hold that it was error to allow Gazewood to identify Young at trial as

the driver.

a. The procedure through which Gazewood identified

Young as the driver was unnecessarily suggestive.

According to the State, the court of appeals erred in deciding that the

procedure for Gazewood’s pretrial identification was unnecessarily suggestive, because

Gazewood had already chosen Young as the driver before the detective said to “trust

your instincts.” But the court of appeals rejected this argument,37 and it was correct to

do so. While Gazewood testified that he “was kind of going there” in selecting Young

as the shooter and may well have picked Young anyway, he also testified that he took

the detective’s comment to mean “that’s the guy we want you to pick” and that it ended

his deliberations. He testified that what “stopped the process of me, . . . you know,

looking at the photo identification was [the detective’s] going trust your instinct. I mean,

that ended this elimination process I was kind of . . . undergoing. . . . [T]hat certainly

ended it.” He agreed that the detective’s comment was “pretty suggestive, yeah.” We

conclude that the court of appeals was correct to hold that the detective’s comment made

Gazewood’s identification procedure “so suggestive as to create ‘a very substantial

likelihood of irreparable misidentification.’ ”38

37

See id. at 1279-80 (“Although the superior court found that Gazewood had

already decided to select Young before [the detective] told him, ‘Go with your instincts,’

the record does not support that finding.”).

38

Noble v. State, 552 P.2d 142, 146 (Alaska 1976) (quoting Simmons v.

United States, 390 U.S. 377, 384 (1968)).

-20- 7110

b. It was error to hold that Gazewood’s identification of

Young was reliable despite the unnecessarily suggestive

identification procedure.

Though concluding that the identification procedure was unnecessarily

suggestive, the court of appeals affirmed the admissibility of Gazewood’s identification

testimony because it determined that his identification of Young was nonetheless reliable

under the Brathwaite test.39 We conclude that this was error.

The court of appeals summarized the superior court’s findings relating to

the five Biggers factors, noted that “eyewitness testimony is often critical and is the kind

of testimony that juries have traditionally been able to evaluate,” and determined that

“because of Gazewood’s extensive prior experience with lineup procedure and his

criticism of the procedure used in this case, his testimony was effective in establishing

the problems with the photo lineup and the influence this procedure had on his

identification.”40

We agree that Gazewood’s testimony — due to both his own expressed

qualms about the identification process and an adept cross-examination — alerted the

jury to a number of factors relevant to assessing the reliability of his identification of

Young.41 But under Brathwaite the testimony was not admissible unless the

39

Young, 331 P.3d at 1280-81.

40

Id.

41

For example, in his testimony Gazewood volunteered the limitations on his

ability to view the perpetrator at the scene (“I had, you know, about three seconds to look

at someone in a rearview mirror.”), his first impression that the driver was Samoan, his

frustration with the detective’s suggestive comment during the photo array, and his

ultimate uncertainty (“I never said it’s number four, I’m certain. . . . I think the . . . term

I used is number four looks most like the guy.”). The cross-examination emphasized

(continued...)

-21- 7110

identification was reliable, and, following an unnecessarily suggestive identification

procedure, a finding of reliability depends on an evaluation of the five Biggers factors:

“the opportunity of the witness to view the criminal at the time of the crime, the witness’

degree of attention, the accuracy of his prior description of the criminal, the level of

certainty demonstrated at the confrontation, and the time between the crime and the

confrontation.”42 We disagree that such an analysis supports the superior court’s finding

of reliability in this case.

Supporting the reliability of Gazewood’s identification is “the length of

time between the crime and the confrontation.”43 The three days that passed before

Gazewood saw the photo array is longer than the time involved in other cases in which

41

(...continued)

Gazewood’s limited opportunity to view the perpetrator, the distractions of the traffic

light and other vehicles, Gazewood’s starting assumption that the photo array included

the person suspected by the police, notable differences among the photos used in the

array, and the possibility that Gazewood’s memory was influenced by the times he saw

Young afterwards in court.

42

Manson v. Brathwaite, 432 U.S. 98, 114 (citing Neil v. Biggers, 409 U.S.

188, 199-200 (1972)).

43

Biggers, 409 U.S. at 199-200.

-22- 7110

we addressed the reliability of eyewitness identifications,44 but not so long as to weigh

against a finding of reliability given the circumstances of this case.45

More weakly supporting reliability is the superior court’s finding that

Gazewood “had a sufficient degree of attention to the events”46 because the fast approach

of the vehicles in his rearview mirror put him on the alert. But Gazewood readily

acknowledged the simultaneous distractions of the other cars stopped at the light, the

changing signal, and having to watch for cross-traffic.

The remaining three Biggers factors weigh against a finding of reliability.

Considering Gazewood’s “level of certainty,” the superior court found that his “conduct

during the photo lineup and his demeanor while testifying suggest a significant degree

of certainty.” Lacking the trial judge’s perspective on Gazewood’s demeanor, we

nonetheless note that Gazewood repeatedly declined to state definitively that Young was

the man he had seen. He testified at the evidentiary hearing that when the detective said

44

Those cases, however, largely involved showups immediately after the

crimes. See Walker v. State, 652 P.2d 88, 95 (Alaska 1982) (identification reliable in part

because “although the record is unclear as to the exact time lapse between the crime and

the identification, it was less than two hours”); Vessell v. State, 624 P.2d 275, 279

(Alaska 1981) (identification reliable in part because “the show-up took place within

minutes after the robbery had occurred”); Howe v. State, 611 P.2d 16, 18 (Alaska 1980)

(identification reliable in part because witness “saw Howe again and identified him

within less than two hours of the robbery”); Holden v. State, 602 P.2d 452, 457 (Alaska

1979) (identification reliable in part because taking place “no more than two hours after

[the witness] first laid eyes on her assailant”).

45

Cf. Biggers, 409 U.S. at 201 (“There was, to be sure, a lapse of seven

months between the rape and the confrontation. This would be a seriously negative

factor in most cases.”).

46

See Brathwaite, 432 U.S. at 114 (noting “the witness’ degree of attention”

as a factor to be considered in determining reliability).

-23- 7110

“trust your instincts,” he had narrowed his choice down to two photos that “looked

vaguely familiar” — “I remember the two of them looked vaguely like the person that

I saw” — and that even though the detective’s comment terminated his deliberation with

the choice of Young, he “[didn’t] know necessarily where [he] would have wound up”

otherwise. Describing his earlier identification of Young at the grand jury, Gazewood

testified, “I said he looked . . . the most like the guy I saw that particular day.”

Throughout the evidentiary hearing he cautiously avoided stating that Young was

definitely the man he had seen; his testimony shows at most a relative certainty that

Young looked more like the perpetrator than did the other subjects he was shown.47 We

conclude that Gazewood’s level of certainty does not support a finding of reliability.

Considering Gazewood’s “opportunity . . . to view the criminal at the time

of the crime,”48 the superior court found that he was a “bona fide on the scene witness

who had a good view of the events[,] . . . saw the events unfolding up close,” and had

47

Cf. Walker, 652 P.2d at 95 (“M.M.’s identification at the scene was certain

and without hesitation or equivocation.”); Howe, 611 P.2d at 18 (holding an

identification reliable in part because the witness “stated that Howe was the man that

robbed him ‘without a doubt’ ”); Holden, 602 P.2d at 457 (“[The witness] testified at the

omnibus hearing that she ‘was positive’ when she saw the photograph that the man

depicted was her assailant. Officer Winkleman specified at that hearing that her

identification was without hesitation or doubt.”).

Based on its findings, the superior court may have considered Gazewood’s

confidence in his identification at the time of the evidentiary hearing. Although

testifying to uncertainty during the identification procedure itself, Gazewood also

testified at the hearing that he had seen Young’s “picture in the paper a couple days ago”

in connection with the pending trial and that the photo in the paper was “[m]ore similar

to the person [he] recall[ed]” seeing at the shooting. The appropriate focus, however, is

Gazewood’s level of certainty at the time of the challenged identification procedure.

48

Brathwaite, 432 U.S. at 114.

-24- 7110

“three to eight seconds to witness [those] events.” While these findings do reflect

Gazewood’s testimony, we also note that his brief view of the driver in his rearview

mirror was not enough to give him confidence in his identification, as noted above; in

fact, Gazewood cited these details to explain why he hesitated to say definitively it was

Young. He readily admitted that while the SUV was coming up behind him the light

changed, traffic started to move, and his focus was shifting back and forth. It is also

worth noting that in Gazewood’s quick sighting of the driver in his rearview mirror he

identified him as Samoan (whereas Young is African American), identified the SUV as

white (whereas Young’s SUV was gray or silver), and failed to note the presence of any

passenger (until the SUV had passed him, when he saw a hand with a gun extend from

the passenger-side window and start shooting). Under the circumstances, we cannot

agree that Gazewood’s opportunity to view the perpetrator weighs in favor of the

reliability of his identification.49

Finally, with regard to “the accuracy of [the witness’s] prior description of

the criminal,”50 the superior court found significant that Gazewood had previously

identified the shooter as a “Black or Samoan man who had his hair pulled back.” This

factual finding, however, is clearly erroneous: while Gazewood consistently recalled that

the driver’s hair was “pulled back,” he initially described the man not as “Black or

49

Cf. United States v. Meyer, 359 F.3d 820, 925-26 (6th Cir. 2004) (holding

that the first Biggers factor, the witness’s opportunity to view the perpetrator, weighed

heavily in favor of reliability when the witness, the driver of a postal truck during a

holdup, observed the perpetrator “at close range” for “between two and four minutes”

and had a “conversation” with him about the cash box and the truck keys).

50

Brathwaite, 432 U.S. at 114.

-25- 7110

Samoan” but as “Samoan.”51 And other than the pulled-back hair and “kind of a round

face,” the record does not reflect that Gazewood could or did describe the driver’s facial

features, clothing, or other distinguishing characteristics. While Gazewood’s initial

description of the driver may have matched Young in a very general sense, we conclude

that it was not accurate or specific enough to support a finding that his later selection of

Young’s photograph was reliable.52

The Brathwaite test requires that we weigh the five Biggers factors “[i]n

light of the totality of the circumstances” against “the corrupting effect of the suggestive

identification itself.”53 Given that only two of the Biggers factors provide only modest

support for a finding of reliability, we conclude that they cannot overcome the

unnecessary suggestiveness of the photo array. We therefore hold that it was error to

admit Gazewood’s identification of Young at trial.

51

We note Gazewood’s later trial testimony that when he first contacted the

police, “I had said that the person was — was Samoan or maybe black, I think.” But at

the evidentiary hearing, when the court was determining whether Gazewood’s

identification could be considered by the jury, Gazewood testified consistently that he

first thought the driver was Samoan. He recalled telling the investigating detective,

either on the phone or when he came to Gazewood’s office with the photo array, that he

thought the driver “was of Samoan descent.”

52

Cf. Vessell v. State, 624 P.2d 275, 279 (Alaska 1981) (“The description that

[the witnesses] gave to the police immediately after the robbery was detailed and

accurate, although they differed slightly on the exact type of boots that the robber

wore. . . . Finally, both [witnesses] were positive in their statements that [the defendant]

wore the same clothing as the man that robbed them, although neither claimed that he

could recognize [the defendant’s] facial features.”).

53

Holden v. State, 602 P.2d 452, 456-57 (Alaska 1979).

-26- 7110

c. The error in admitting Gazewood’s identification at trial

was harmless.

We conclude, however, that the error in admitting the evidence of

Gazewood’s identification was harmless beyond a reasonable doubt.54 The admission

of an unreliable eyewitness identification at trial is harmless “if there [is] conclusive

independent evidence, apart from the [unreliable] identification testimony[,] . . . that

identified [the defendant] as the [culprit].”55

In prosecuting Young, the State did not rely solely on Gazewood’s

identification; two other eyewitnesses placed Young at the scene. Arles Arauz, who had

known Young since high school, identified him as the driver of the SUV. John

Anzalone, another driver near the shooting, positively identified Young as the driver.

And significant circumstantial evidence tied Young to the crime. The key in his pocket

when he was arrested was found to operate the SUV the State alleged was used in the

shooting. The State’s witnesses identified the SUV as belonging to “Big Nasty,” a

nickname for Young. The nine-millimeter Luger pistol Young was carrying when he

was arrested was shown to match bullet casings found at the crime scene.

In assessing whether the erroneous admission of Gazewood’s identification

was harmless, we also find significant the extent to which he qualified his own testimony

by emphasizing the brevity of his opportunity to view the perpetrator and his frustration

with what he considered to be a suggestive comment at the photo array.56 Admission of

54

See Raphael v. State, 994 P.2d 1004, 1010 (Alaska 2000) (“A constitutional

error is ground for reversal of conviction unless the error is ‘harmless beyond a

reasonable doubt.’ ”).

55

McCracken v. State, 521 P.2d 499, 504-05 (Alaska 1974).

56

See supra note 41.

-27- 7110

a weak and equivocal identification is more likely to be harmless error than admission

of a strong and confident one.57

Thus, despite the error in admitting Gazewood’s identification, the fact that

there was “conclusive independent evidence, apart from the [unreliable] identification

testimony,”58 implicating Young in the shooting leads us to conclude that the error was

harmless beyond a reasonable doubt.

2. It was not error to allow Anzalone to identify Young in court.

Young also argues that it was error to permit Anzalone, who had failed to

identify him at the grand jury, to identify him at trial as the driver after having seen his

photo on the television news. We conclude that this was not error.

57

See Williams v. Stewart, 441 F.3d 1030, 1039 (9th Cir. 2006) (holding that

any error in admitting evidence of suggestive showup was harmless where “[c]ross­

examination brought out the weakness of [the witness’s] identification, the

suggestiveness of the circumstances under which it was made, the few seconds she had

to see the suspect to begin with, the fact that she had been unable to pick [the defendant]

out of the photo array, and the two and a half years that had elapsed between her five

second encounter on [the date of the incident] and the deposition at which she identified

[the defendant]”); United States v. Washington, 353 F.3d 42, 45-46 (D.C. Cir. 2004)

(holding that any error in admitting evidence of suggestive lineup was harmless beyond

a reasonable doubt where, among other reasons, “the potential impact on the jury of [the]

lineup identification was slight because it was, at best, equivocal; she said only that her

assailant ‘might be number two,’ ” and defense counsel “denigrated” the identification

in cross-examination and closing argument as “the unreliable product of a suggestive

procedure”); State v. Conyers, 236 S.E.2d 393, 396 (N.C. App. 1977) (“[The witness’s]

in-court identification testimony before the jury in this case was so weak [—] she

testified only that defendant ‘resembles one of the guys who went to the back’ [—] and

the other evidence of defendant’s guilt, including his signed confessions[,] was so

overwhelming, that the admission of her testimony, if error at all, was harmless beyond

any reasonable doubt.”).

58

McCracken, 521 P.2d at 504-05.

-28- 7110

a. Due process protections against unnecessarily suggestive

identifications do not apply to Anzalone’s initial

identification of Young after seeing his picture on

television.

Young argues first that Anzalone’s identification of him after seeing his

picture on the television news constitutes an unnecessarily suggestive identification

procedure and that the superior court should have assessed its reliability under the

Brathwaite test before allowing Anzalone to identify Young in court. But the due

process protections against unnecessarily suggestive identification procedures do not

apply in the absence of state action.59 As the United States Supreme Court has recently

held, the “due process check on the admission of eyewitness identification [is] applicable

when the police have arranged suggestive circumstances leading the witness to identify

a particular person as the perpetrator of a crime.”60

When no improper law enforcement activity is involved, . . .

it suffices to test reliability through the rights and

opportunities generally designed for that purpose, notably,

the presence of counsel at post-indictment lineups, vigorous

cross-examination, protective rules of evidence, and jury

instructions on both the fallibility of eyewitness identification

59

Nichols v. Eckert, 504 P.2d 1359, 1362 (Alaska 1973) (“For [the due

process] clause to apply there must be state action and the deprivation of an individual

interest of sufficient importance to warrant constitutional protection.”); cf. Perry v. New

Hampshire, 132 S. Ct. 716, 730 (2012) (“[T]he [federal] Due Process Clause does not

require a preliminary judicial inquiry into the reliability of an eyewitness identification

when the identification was not procured under unnecessarily suggestive circumstances

arranged by law enforcement.”).

60

Perry, 132 S. Ct. at 720 (emphasis added).

-29- 7110

and the requirement that guilt be proved beyond a reasonable

doubt.[61]

Consistent with these principles, we held in Kimble v. State that accidental

confrontations do not ordinarily implicate due process concerns.62 Such a confrontation

“may be the subject of cross-examination of course, but on the whole the question is one

going to the weight rather than the admissibility of the evidence.”63 While the facts in

Kimble — where the police were alleged to have arranged an “accidental” showup with

the witness — made for a close question,64 this is not such a case. Because there was no

state action involved in Anzalone’s identification of Young from a picture on the

television news, due process did not require that the superior court screen it for reliability

under Brathwaite.

b. Due process protections against unnecessarily suggestive

eyewitness identifications do not apply to Anzalone’s

first-time in-court identification.

Young also argues that Anzalone’s in-court identification of him was itself

unnecessarily suggestive because it “was equivalent to a show-up, where an individual

is presented with one suspect and asked to make a yes or no identification.” Young

61

Id. at 721.

62

539 P.2d 73, 77 (Alaska 1975).

63

Id. In Kimble, the defendant challenged an in-court identification after the

witness, present at the police station on an unrelated matter, had identified the defendant

as he was being led into a holding cell. Id. at 76-77. While Kimble claimed that

admission of the in-court identification would violate his right to due process, we held

that “[t]o extend the Wade-Stovall line of cases to purely accidental pretrial

confrontations would place too great a burden on police and prosecutors to isolate

witnesses and defendants.” Id. at 77.

64

See id. at 77.

-30- 7110

observes that he was the only African-American man in the courtroom and that he was

sitting at counsel table with his lawyer. He contends that given the suggestiveness of

these circumstances, the superior court should have assessed the reliability of the

resulting identification under Brathwaite and should have excluded it.

We have never directly addressed whether a first-time in-court

identification triggers application of the same due process protections that apply to

suggestive pretrial identifications.65 We now decide it does not. Our conclusion is

driven by the fundamental differences between identifications derived from state action

prior to trial and those that occur in the courtroom. A pretrial identification ordinarily

involves only the police and the witness, and how the identification is later evaluated at

trial depends largely on those participants’ recollections of it. An in-court identification,

in contrast, occurs in the presence of the judge, the jury, and the lawyers. The

circumstances under which the identification is made are apparent. Defense counsel has

the opportunity to identify firsthand the factors that make the identification suggestive

and to highlight them for the jury.66 We also note that there are other ways, though not

65

This court and the court of appeals have both declined to reach the issue of

an allegedly suggestive in-court identification after finding that a consistent pretrial

identification was proper. See Viveros v. State, 606 P.2d 790, 793 (Alaska 1980)

(“Because we have concluded that the pre-trial identification was proper, it is

unnecessary to consider whether the in-court identification was permissible in the wake

of an impermissible pre-trial identification.”); Dunbar v. State, 677 P.2d 1275, 1278 n.1

(Alaska App. 1984) (“Our holding that the photographic lineup was not impermissibly

suggestive . . . disposes of [the defendant’s] claim with respect to the in-court

identification.”).

66

See People v. Rodriguez, 480 N.E.2d 1147, 1151 (Ill. App. 1985) (“Where

a witness first identifies the defendant at trial, defense counsel may test the perceptions,

memory and bias of the witness, contemporaneously exposing weaknesses and adding

(continued...)

-31- 7110

used in this case, in which the risks of in-court misidentifications can be either minimized

in practice or pointed out to the jury. Expert witnesses can testify about the problems

inherent in first-time in-court identifications;67 the trial court may grant a defendant’s

request for an in-court lineup or to be seated somewhere other than counsel table for the

identification.68

We recognize that this is a close question, and by our decision today we do

not mean to foreclose the possibility that a first-time in-court identification could be

unnecessarily suggestive. For example, courts have found due process violations where

the prosecutor improperly coached the witness into making an in-court identification.69

66

(...continued)

perspective in order to lessen the hazards of undue weight or mistake.”). Here, Young’s

attorneys cross-examined Anzalone vigorously on the circumstances of the identification

and his failure to identify Young earlier.

67

In this case, Young sought to introduce expert testimony about the

fallibility of eyewitness identifications, but the superior court refused to allow it on

grounds that the State had not received adequate notice. Young did not challenge that

decision on appeal.

68

See, e.g., United States v. Thompson, 524 F.3d 1126, 1136 (10th Cir. 2008)

(“[A]lthough the district court offered Mr. Thompson the opportunity to use an in-court

line-up or photos to lessen the suggestiveness of the in-court identification, he was not

constitutionally entitled to such methods and, in any event, did not take advantage of

them.”); United States v. Domina, 784 F.2d 1361, 1369 (9th Cir. 1986) (“There is no

constitutional entitlement to an in-court line-up or other particular methods of lessening

the suggestiveness of in-court identification, such as seating the defendant elsewhere in

the room. These are matters within the discretion of the court.”).

69

See United States v. Greene, 704 F.3d 298, 307 (4th Cir. 2013) (holding

that due process was violated “where the phrasing of a question suggest[ed] the desired

response” and “the witness understandably may have felt pressure to find something in

the defendant that reminded her of the bank robber,” thereby presenting “a suggestive

(continued...)

-32- 7110

In this case, however, Anzalone volunteered his identification of Young. The prosecutor

simply asked him whether he could “give us any description of the person that you saw,”

to which Anzalone answered, “He’s in the courtroom today.” The prosecutor asked, “Do

you recognize him?” and Anzalone responded, “He’s sitting at the defense table.”

We emphasize that the due process protections that have been developed

around the admissibility of eyewitness identifications, and which we clarify today, are

intended to correct for unnecessarily suggestive police conduct during its investigation,

and that courtrooms have a number of other safeguards — impartial judge and jury,

competent defense counsel, the rules of evidence, the State’s burden of proof — that are

intended to ensure due process.70 While recognizing that the suggestiveness and

reliability of first-time in-court identifications present many of the same issues as those

that affect pretrial identifications, we are not prepared to extend the same rules to both.

We conclude that the superior court did not err when it allowed Anzalone to identify

Young in court as the driver.

69

(...continued)

situation in which it is not clear whether the witness’s own recollections, or outside

pressures, are driving the testimony”); Bennett v. Miller, 419 F. App’x 18, 20 (2d Cir.

2011) (“[The witness] never identified [the defendant] prior to trial; he twice failed to

make an in-court identification while on the stand; and only after he watched from the

galley when the prosecutor identified [the defendant] as the shooter did [the witness]

undertake to make an in-court identification.”).

70

See Perry v. New Hampshire, 132 S. Ct. 716, 728-29 (2012) (listing “other

safeguards built into our adversary system that caution juries against placing undue

weight on eyewitness testimony of questionable reliability,” including the right to

confront witnesses, the right to counsel, eyewitness-specific jury instructions, the

evidence rules excluding relevant but unfairly prejudicial evidence, and expert

testimony).

-33- 7110

3. Because the Brathwaite test does not adequately protect the right

to due process under the Alaska Constitution, we adopt a new

approach to deciding the admissibility of eyewitness

identification evidence in future cases.

Although the result in Young’s case is unaffected by a prospective change

in the law, we are convinced that Alaska’s existing test for the admission of eyewitness

identifications does not go far enough in protecting the right to due process under the

Alaska Constitution. We generally refrain from issuing advisory opinions,71 but at times

we set aside this judicial policy of self-restraint to correct or clarify important aspects of

the law.72 In the exercise of our general “supervisory power to formulate standards for

the enforcement of criminal law in the courts of this state”73 and our more specific

“supervisory powers over state courts pertaining to the admissibility of evidence,”74 we

71

Larson v. State, 254 P.3d 1073, 1078 (Alaska 2011).

72

See, e.g., Lyons v. Midnight Sun Transp. Servs., Inc., 928 P.2d 1202,

1204-05 (Alaska 1996) (finding that “any possible error resulting from the use of [a]

sudden emergency instruction” was harmless but “tak[ing] this opportunity to disapprove

of the instruction’s further use,” with an in-depth discussion of the issue); Moreau v.

State, 588 P.2d 275, 283-84 (Alaska 1978) (holding that a codefendant voluntarily

waived his Sixth Amendment right to individual counsel but requiring trial courts to

apply stricter standards for dual representation in future cases, modeled after Minnesota

precedent); Thurlkill v. State, 551 P.2d 541, 544-45 & n.9 (Alaska 1976) (finding no

reversible error in a presentence report’s reliance on unverified police contacts but

instructing trial courts in future cases to expressly state that they are not relying on those

contacts in sentencing, and also “urg[ing] that the probation personnel act responsibly

in this area”).

73

Simms v. State, 464 P.2d 527, 528 (Alaska 1970) (exercising supervisory

power to advise trial courts about limiting jurors’ access to materials beyond what was

admitted in evidence).

74

Roman v. State, 570 P.2d 1235, 1243-44 (Alaska 1977) (exercising

supervisory power to require that conditions of parole authorizing warrantless searches

(continued...)

-34- 7110

today announce a new test for the admissibility of eyewitness identification testimony

that we believe is consistent with the due process protections of Alaska’s constitution.

In so doing we necessarily depart from Manson v. Brathwaite and the

Alaska cases that relied on it as the touchstone. “We do not lightly overrule our past

decisions.”75 However, “stare decisis is a practical, flexible command that balances our

community’s competing interests in the stability of legal norms and the need to adapt

those norms to society’s changing demands.”76 With these considerations in mind, “we

will overrule a prior decision only when ‘ “clearly convinced that the rule was originally

erroneous or is no longer sound because of changed conditions, and that more good than

harm would result from a departure from precedent.” ’ ”77 We are convinced that this is

the case with respect to the Brathwaite test.

a. Changed conditions justify replacing the Brathwaite test.

The “changed conditions” that justify abandoning a prior decision include

where “related principles of law have so far developed as to have left the old rule no

more than a remnant of abandoned doctrine, [or] facts have so changed or come to be

seen so differently, as to have robbed the old rule of significant application.”78

Developments in the science related to the reliability of eyewitness identifications, and

74

(...continued)

“be specified by the Parole Board and not left to the discretion of individual parole

officers”).

75

State v. Dunlop, 721 P.2d 604, 610 (Alaska 1986).

76

State v. Carlin, 249 P.3d 752, 757 (Alaska 2011) (alteration omitted)

(quoting Pratt &Whitney Canada, Inc. v. Sheehan, 852 P.2d 1173, 1175 (Alaska 1993)).

77

Pratt & Whitney, 852 P.2d at 1176 (quoting Dunlop, 721 P.2d at 610).

78

Id. (alteration in original) (quoting Planned Parenthood v. Casey, 505 U.S.

833, 855 (1992)).

-35- 7110

courts’ responses to those developments, have significantly weakened our confidence in

the Brathwaite test as a tool for preventing the admission of unreliable evidence at trial,

and therefore its capacity for protecting the due process rights afforded by the Alaska

Constitution.79

The State aptly observes that doubts about the reliability of eyewitness

identifications are neither “revelatory nor recent.” The United States Supreme Court

noted even before Brathwaite that “[t]he vagaries of eyewitness identification are well-

known; the annals of criminal law are rife with instances of mistaken identification,” and

“[t]he hazards of such testimony are established by a formidable number of instances in

the records of English and American trials.”80 But “the hazards of such testimony” are

even more well documented since Brathwaite.

Brathwaite was decided in 1977, and “[t]he modern era of eyewitness

identification research began” more or less contemporaneously, “in the 1970s.”81 But

“[t]he past few decades have seen an explosion of additional research that has led to

important insights into how vision and memory work, what we see and remember best,

79

In Perry v. New Hampshire, the United States Supreme Court reaffirmed

its reliance on Brathwaite under the United States Constitution. 132 S. Ct. 716, 723-25

(2012). But while “[t]he Federal Constitution protects the due process rights of all

Americans, . . . federal law does not preclude the Alaska Constitution from providing

more rigorous protections for the due process rights of Alaskans.” Doe v. State, Dep’t

of Pub. Safety, 92 P.3d 398, 404 (Alaska 2004).

80

United States v. Wade, 388 U.S. 218, 228 (1967).

81

NAT’L ACAD. OF SCI., IDENTIFYING THE CULPRIT: ASSESSING EYEWITNESS

IDENTIFICATION 16 (2014) [hereinafter IDENTIFYING THE CULPRIT].

-36- 7110

and what causes these processes to fail.”82 The Supreme Court of New Jersey

comprehensively surveyed the literature in a 2011 opinion that we find particularly

persuasive. The court assigned a special master to consider the scientific evidence on

eyewitness identifications and, after receiving the master’s report, summarized:

“Virtually all of the scientific evidence considered on remand emerged after

[Brathwaite],” and, while the 1970s “produced only four published articles in

psychology literature containing the words ‘eyewitness’ and ‘identity’ in their

abstracts[, . . .] more than two thousand studies related to eyewitness identification have

been published in the past thirty years.”83

The State contends that we should not consider scientific evidence that was

not subjected to the adversarial process at trial. We “recognize that evaluation of

scientific information at the appellate level is without the advantage of

cross-examination.”84 Other states’ high courts have followed different procedural paths

when modifying their standards for evaluating eyewitness identifications. The special

master appointed by the New Jersey Supreme Court “to evaluate scientific and other

evidence about eyewitness identifications . . . presided over a hearing that probed

testimony by seven experts and produced more than 2,000 pages of transcripts along

with hundreds of scientific studies,” then issued an extensive report on which the court

82

Id. at 69.

83

State v. Henderson, 27 A.3d 872, 892 (N.J. 2011); see also REPORT OF THE

SPECIAL MASTER, State v. Henderson, A-8-08, at 8-14 (N.J. June 18, 2010),

https://www.judiciary.state.nj.us/pressrel/HENDERSON%20FINAL%20BRIEF%20.

PDF%20(00621142).PDF.

84

State v. Erickson, 574 P.2d 1, 6 (Alaska 1978).

-37- 7110

heavily relied.85 Other courts, acknowledging the scientific consensus, have not required

that the science be tested again in a trial-like process. The Massachusetts Supreme

Judicial Court convened a “Study Group” in 2011 to determine how it could improve its

model jury instructions for the evaluation of eyewitness identifications.86 In 2015 the

court “review[ed] the scholarly research, analyses by other courts, amici submissions,

and the Study Group Report and comments” and adopted new standards.87 The supreme

courts of Connecticut,88 Hawai’i,89 Oregon,90 Utah,91 and Wisconsin,92 while noting

85

Henderson, 27 A.3d at 877.

86

See Commonwealth v. Walker, 953 N.E.2d 195, 208 n.16 (Mass. 2011)

(convening study group “to consider how we can best deter unnecessarily suggestive

procedures and whether existing model jury instructions provide adequate guidance to

juries in evaluating eyewitness testimony”); see also SUPREME JUDICIAL COURT STUDY

GROUP ON EYEWITNESS EVIDENCE, REPORT AND RECOMMENDATIONS TO THE JUSTICES

(2013), http://www.mass.gov/courts/docs/sjc/docs/eyewitness-evidence-report- 2013.pdf.

87

Commonwealth v. Gomes, 22 N.E.3d 897, 905, 909-10 (Mass. 2015).

88

State v. Guilbert, 49 A.3d 705, 720-22 (Conn. 2012) (holding that expert

testimony should be allowed on the reliability of eyewitness identifications; relying both

on “[t]he extensive and comprehensive scientific research, as reflected in hundreds of

peer reviewed studies and meta-analyses, [which] convincingly demonstrates the

fallibility of eyewitness identification testimony and pinpoints an array of variables that

are most likely to lead to a mistaken identification,” and on the fact that courts

nationwide have followed this science in revising their approaches to eyewitness

testimony).

89

State v. Cabagbag, 277 P.3d 1027, 1035-38 (Haw. 2012) (describing other

states’ adoption of new standards for the evaluation of eyewitness testimony but

concluding that “[m]ost significantly, the impetus for a change in our approach lies in the

empirical research that reveals that people generally do not understand all of the factors

that affect the reliability of an eyewitness identification”).

90

State v. Lawson, 291 P.3d 673, 685 (Or. 2012) (en banc) (“Based on our

(continued...)

-38- 7110

judicial trends, have also relied directly on the scientific research to explain why their

standards should be modified.

We consider it unnecessary to retest the validity of the scientific evidence

on which these other high courts rely. We are not relying on disputed scientific evidence

to disturb or affirm the verdict in this case, but rather identifying factors for trial courts’

future use — factors other courts have found highly relevant to their constitutional

guarantees of due process. We adopted the Brathwaite test of reliability in 1979 without

reference to whether its assumptions were scientifically valid.93 In the decades that

followed we applied a “totality of the circumstances” test that included the Biggers

90

(...continued)

extensive review of the current scientific research and literature, we conclude that the

scientific knowledge and empirical research concerning eyewitness perception and

memory has progressed sufficiently to warrant taking judicial notice of the data

contained in those various sources as legislative facts that we may consult for assistance

in determining the effectiveness of our existing test for the admission of eyewitness

identification evidence.”).

91

State v. Clopten, 223 P.3d 1103, 1108 (Utah 2009) (concluding that a

cautionary instruction was not enough of a safeguard and that expert testimony on

eyewitness identifications should generally be admitted as well; relying directly on

scientific research, though noting: “That the empirical data is conclusive on these

matters is not disputed by either party in this case and has not been questioned by this

court in [its] decisions [since 1986, when the court first acknowledged the inherent

weaknesses of eyewitness identification]”).

92

State v. Dubose, 699 N.W.2d 582, 591-92 (Wis. 2005) (deciding that

showups are inherently suggestive; revisiting reliance on Biggers and Brathwaite in light

of subsequent “extensive studies on the issue of identification evidence, research that is

now impossible for us to ignore”).

93

Holden v. State, 602 P.2d 452, 456 (Alaska 1979) (quoting Manson v.

Brathwaite, 432 U.S. 98, 114 (1977)).

-39- 7110

factors because the Supreme Court had decided those factors were relevant.94 As our

sister courts find reason to be dissatisfied with Brathwaite and the Biggers factors, it is

appropriate that we take note of their concerns and use their reasoning to inform our own

constitutional analysis. We find highly significant the extent to which other courts have

reviewed the evidence, accepted it as valid, and filtered it through their own

constitutional analyses.

Ultimately, the movement away from the Brathwaite test in other

jurisdictions, in reliance on advances in the relevant research, convinces us that

conditions have changed.95 We conclude that “the legal landscape is very different than

it was” when we decided to follow Brathwaite 37 years ago, and “[t]his new diversity

of opinions among the high courts of states throughout the country is another reason to

conclude that the ‘changed conditions’ element of the test for overruling precedent is

satisfied.”96

94

See, e.g., Vessell v. State, 624 P.2d 275, 279 (Alaska 1981).

95

See, e.g., State v. Carlin, 249 P.3d 752, 758, 761 (Alaska 2011)

(considering “the growing number of states that have rejected” a proposition of law in

holding that “the ‘changed conditions’ element of the test for overruling precedent is

satisfied”); Tegoseak v. State, 221 P.3d 345, 359 (Alaska App. 2009) (“The year 2005

appears to have been a turning point of sorts in the judicial recognition of the growing

body of research into the psychological dynamics of eyewitness identification.”).

96

Carlin, 249 P.3d at 760-61; see also Charles v. State, 326 P.3d 978, 984

n.58 (Alaska 2014) (“Our conclusion today that Judd was erroneous is bolstered by

changed conditions. . . . [I]n Judd we were persuaded in part to adopt the Linkletter

criteria because of their universal acceptance. . . . But after Griffith it is no longer true

that the weight of authority supports Linkletter for direct review retroactivity.” (internal

citations omitted)).

-40- 7110

We also conclude that “more good than harm would result from a departure

from” the Brathwaite test.97 “It is indisputable that a primary goal, perhaps the

paramount goal, of the criminal justice system is to protect the innocent accused against

an erroneous conviction,”98 and we cannot doubt that mistaken eyewitness identifications

lead to wrongful convictions.99 Justice Sotomayor, dissenting in Perry v. New

Hampshire, noted that “[t]he empirical evidence demonstrates that eyewitness

“misidentification is ‘ “the single greatest cause of wrongful convictions in this

country.” ’ ”100 Even the majority opinion in Perry “d[id] not doubt either the

importance or the fallibility of eyewitness identifications.”101 And the risks posed by the

admission of unreliable identifications is magnified by the effect eyewitness testimony

has on the jury: as Justice Brennan noted, “[T]here is almost nothing more convincing

97

Carlin, 249 P.3d at 757. In making this determination, we “balance the

benefits of adopting a new rule against the benefits of stare decisis: providing guidance

for the conduct of individuals, creating efficiency in litigation by avoiding the relitigation

of decided issues, and maintaining public faith in the judiciary.” Id. at 761-62.

98

Shaw v. State, Dep’t of Admin., 861 P.2d 566, 570 (Alaska 1993).

99

See, e.g., Samuel R. Gross et. al., Exonerations in the United States 1989

Through 2003, 95 J. CRIM. L. & CRIMINOLOGY 523, 542 (2005) (“The most common

cause of wrongful convictions is eyewitness misidentification.”); Tegoseak, 221 P.3d at

360 (“The changing attitude of the legal system is attributable to the fact that ‘the

development of forensic DNA testing in the 1990s [uncovered] definitive cases of the

conviction of innocent people in the United States’, and that ‘[e]yewitness identification

error was at the heart of the evidence used to convict the vast majority of these innocent

people.’ ” (alterations in original) (quoting Kevin Johnson, States Change Police Line­

ups After Wrongful Convictions, USA TODAY, Sept. 17, 2009)).

100

132 S. Ct. 716, 738-39 (2012) (Sotomayor, J., dissenting) (quoting State v.

Henderson, 27 A.3d 872, 885 (N.J. 2011)).

101

Id. at 728.

-41- 7110

than a live human being who takes the stand, points a finger at the defendant, and says

‘That’s the one!’ ”102

In sum, we are convinced that the Brathwaite test does not adequately

assess the reliability of eyewitness identifications and thus allows the admission of very

persuasive evidence of doubtful reliability. In the belief that a new approach — based

on a better understanding of the factors affecting the reliability of eyewitness

identifications — will lead to the exclusion of unreliable evidence and thereby reduce the

risk of wrongful convictions, we conclude that breaking away from our long reliance on

the Brathwaite test will do more good than harm.103

b. The scientific understanding of the factors affecting

eyewitness identifications has evolved since Brathwaite.

The science of human memory developed since Brathwaite shows that

memory does not function like a videotape, on which events are simply stored linearly

to be recalled later in the same linear way.104 Instead, there are three major stages of

memory and recall. First, in the acquisition stage, “the event is perceived by a witness,

and information is entered into the memory system”; second, in the retention stage,

“some time passes before a witness tries to remember the event”; finally, in the retrieval

102

Watkins v. Sowders, 449 U.S. 341, 352 (1981) (Brennan, J., dissenting)

(emphasis omitted) (quoting ELIZABETH LOFTUS, EYEWITNESS TESTIMONY 19 (1979)).

103

See Henderson, 27 A.3d at 928 (“At the core of our system of criminal

justice is the ‘twofold aim . . . that guilt shall not escape or innocence suffer.’ ”

(alteration in original) (quoting Berger v. United States, 295 U.S. 78, 88 (1935))).

104

See ELIZABETH F. LOFTUS ET AL., EYEWITNESS TESTIMONY: CIVIL AND

CRIMINAL § 2:2 (5th ed. 2014).

-42- 7110

stage, “the witness tries to recall the stored information.”105 Eyewitness memory is

malleable, and many factors can affect the reliability of a memory at each stage of the

process of recalling it.106 And as the court of appeals noted in Tegoseak v. State, a

mistaken identification at the beginning of a criminal investigation can “become” the

witness’s memory for purposes of all subsequent identifications; the erroneous picture

displaces the fact.107

Scientific literature often divides the factors that can affect the reliability

of eyewitness identifications into two categories: “system variables,” which are

manipulable and can be influenced by the criminal justice system (such as the

instructions given a witness during a lineup); and “estimator variables,” which cannot

be influenced by the criminal justice system because they are related to environmental

conditions and personal characteristics (such as the stress of the moment).108 In replacing

the Biggers factors with a list that draws on these two categories of variables, we follow

most closely the New Jersey and Oregon supreme courts’ decisions in State v.

105

Id.

106

Id.; Steven Penrod et al., The Reliability of Eyewitness Testimony: A

Psychological Perspective, in THE PSYCHOLOGY OF THE COURTROOM 119, 122-46

(Norbert L. Kerr & Robert M. Bray eds., 1982).

107

221 P.3d 345, 355 (Alaska App. 2009) (citing Gary L. Wells & Deah S.

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

Reliability Test in Light of Eyewitness Science: Thirty Years Later, 33 LAW & HUM.

BEHAVIOR 1-24 (2009)).

108

Gary L. Wells, Applied Eyewitness–Testimony Research: System Variables

and Estimator Variables, 36 J. PERSONALITY & SOC. PSYCHOL. 1546, 1548 (1978);

IDENTIFYING THE CULPRIT, supra note 81, at 119.

-43- 7110

Henderson109 and State v. Lawson.110 Like those courts, we recognize that the science

of eyewitness identifications is “probabilistic”; it cannot say for certain whether any

particular identification is accurate but rather identifies the variables that are relevant to

evaluating the risk of a misidentification.111

System Variables

i. Blind administration112

Was the lineup or photo array administered “blind”? When the

administrator of an identification procedure knows who the suspect is, the administrator

may subconsciously affect the reliability of the witness’s identification.113 Such

109

27 A.3d 872, 894-910 (N.J. 2011).

110

291 P.3d 673, 685-88 (Or. 2012) (en banc).

111

See Henderson, 27 A.3d at 894 (“[E]yewitness identification research

remains probabilistic, meaning that science cannot say whether an identification in an

actual case is accurate or not. Instead, science has sought to answer, in the aggregate,

which identification procedures and external variables are tied to an increased risk of

misidentification.”); Lawson, 291 P.3d at 685 (“We recognize that the scientific research

is ‘probabilistic’ — meaning that it cannot demonstrate that any specific witness is right

or wrong, reliable or unreliable, in his or her identification. . . . [But] it is imperative that

law enforcement, the bench, and the bar be informed of the existence of current scientific

research and literature regarding the reliability of eyewitness identification . . . .”).

112

See Henderson, 27 A.3d at 896-97; Lawson, 291 P.3d at 686.

113

See Lawson, 291 P.3d at 706 (“To guard against [unintentional] influence,

experts recommend that all identification procedures be conducted by a ‘blind’

administrator — a person who does not know the identity of the suspect.”); see also

Sarah M. Greathouse & Margaret Bull Kovera, Instruction Bias and Lineup Presentation

Moderate the Effects of Administrator Knowledge on Eyewitness Identification, 33 LAW

& HUM. BEHAV. 70, 71 (2009) (“[P]olice officers may leak their hypotheses by

consciously or unconsciously communicating to witnesses which lineup member is the

suspect.”).

-44- 7110

influences are referred to as “interpersonal expectancy effects”:114 “the tendency for

experimenters to obtain results they expect . . . because they have helped to shape that

response.”115 In the eyewitness identification context, this can occur when the

administrator of a lineup or photo array knows which person is the suspect and,

consciously or not, gives cues to the witness that affect the witness’s choice.116 The

phenomenon is not limited to overt or explicit suggestion; “[e]ven small changes in the

experimenter’s body posture or expression have been shown to affect participants’

responses,” though the witness is often unaware that it is happening.117

114

See, e.g., Jacqueline L. Austin et al., Double-Blind Lineup Administration:

Effects of Administrator Knowledge on Eyewitness Decisions, in REFORM OF

EYEWITNESS IDENTIFICATION PROCEDURES 139, 139-40 (Brian L. Cutler, ed. 2013).

115

Robert Rosenthal & Donald B. Rubin, Interpersonal Expectancy Effects:

The First 345 Studies, 3 BEHAV. & BRAIN SCI. 377, 377 (1978) (“The overall probability

that there is no such thing as interpersonal expectancy effects is near zero.”). The court

of appeals illustrated this phenomenon in Tegoseak v. State with a description of the

investigation over a hundred years ago into the arithmetical abilities of a trick horse,

“Clever Hans,” who, it was determined, responded to unwitting visual cues from his

master. 221 P.3d 345, 351 n.7 (Alaska App. 2009).

116

See Austin et al., supra note 114, at 139-42. “When the administrator

knows the suspect’s identity . . . , the witness may be more likely to choose the suspect

regardless of the suspect’s guilt.” Id. at 142.

117

Ryann M. Haw & Ronald P. Fisher, Effects of Administrator-Witness

Contact on Eyewitness Identification Accuracy, 89 J. APPLIED PSYCHOL. 1106, 1110

(2004); see also id. at 1107; Steven E. Clark et al., Lineup Administrator Influences on

Eyewitness Identification Decisions, 15 J. EXPERIMENTAL PSYCHOL.: APPLIED 63, 72-74

(2009).

-45- 7110

To prevent these influences on the identification procedure, studies

recommend that it be administered “blind.”118 “Double-blind administrators do not know

who the actual suspect is. Blind administrators are aware of that information but shield

themselves from knowing where the suspect is located in the lineup or photo array.”119

ii. Pre-identification instructions120

Was the witness instructed before the identification procedure that the

suspect may or may not be present in the lineup, showup, or array, and that the witness

need not make an identification? A witness’s expectation that a lineup will include the

suspect may affect the identification’s reliability. Studies attest to the phenomenon of

“relative judgment,” in which “the witness seems to be choosing the lineup member who

118

See, e.g., Clark, supra note 117, at 74 (noting, however, that “the lineup

administration can influence the outcome even when blind administrator is used”); Haw

& Fisher, supra note 117, at 1110-11; Gary L. Wells et al., Eyewitness Identification

Procedures: Recommendations for Lineups and Photospreads, 22 LAW &HUM. BEHAV.

603, 627-29 (1998).

119

State v. Henderson, 27 A.3d 872, 896 (N.J. 2011). Double-blind

administration (where the administrator does not know which subject is the suspect) is

not always a realistic option due to resource constraints and limited personnel. In

Henderson, the New Jersey Supreme Court took note of the “envelope method,” in

which “an officer who knows the suspect’s identity places single lineup photographs into

different envelopes, shuffles them, and presents them to the witness.” Id. at 897. During

the witness’s deliberations, “[t]he officer/administrator then refrains from looking at the

envelopes or pictures while the witness makes an identification.” Id.

120

See State v. Lawson, 291 P.3d 673, 706 (Or. 2012) (en banc) (“Studies

show that the likelihood of misidentification is significantly decreased” when witnesses

are given such instructions and “[t]here appears to be little downside to giving [them].”);

see also Henderson, 27 A.3d at 897.

-46- 7110

most resembles the witness[’s] memory relative to other lineup members.”121

Accordingly, studies show that misidentification is less likely if the witness is informed

that the suspect might not be in the lineup. For example, two meta-analyses compared

the effect of different instructions in lineups in which the perpetrator was present and

lineups in which he was not.122 Both studies concluded that failing to inform a witness

that the perpetrator might not be present, when the perpetrator in fact was not, led to

more incorrect identifications; that is, a witness tended to select the person who best

resembled the one in the witness’s memory.123 By contrast, one of the studies found that

121

Gary L. Wells, The Psychology of Lineup Identifications, 14 J. APPLIED

SOC. PSYCHOL. 89, 92 (1984) (emphasis in original); see also Nancy K. Steblay, Lineup

Instructions, in REFORM OF EYEWITNESS IDENTIFICATION PROCEDURES 65, 74 (Brian L.

Cutler ed., 2013) (summarizing studies) (“One well-documented secondary strategy [of

identification] is relative judgment, that is, the comparison of lineup members with one

another to select the one who looks most like the offender relative to the other lineup

members.” (citing Wells, The Psychology of Lineup Identifications, supra)).

122

A “meta-analysis” is “a synthesis of all obtainable data collected in a

specified topical area.” Roy S. Malpass et al., The Need for Expert Psychological

Testimony on Eyewitness Identification, in EXPERT TESTIMONY ON THE PSYCHOLOGY OF

EYEWITNESS IDENTIFICATION 3, 15 (Brian L. Cutler ed., 2009).

123

See Steven E. Clark, A Re-Examination of the Effects of Biased Lineup

Instructions in Eyewitness Identification, 29 LAW & HUM. BEHAV. 395, 396-97 (2005);

Nancy Mehrkens Steblay, Social Influence in Eyewitness Recall: A Meta-Analytic

Review of Lineup Instruction Effects, 21 LAW & HUM. BEHAV. 283, 294 (1997)

(summarizing studies and stating that “the available data support the hypothesis that

biased instructions significantly affect eyewitness lineup identification performance”).

The United States Department of Justice made a suggestion for similar instructions in its

1999 research report. U.S. DEP’T OF JUSTICE, NAT’L INST. OF JUSTICE, EYEWITNESS

EVIDENCE: A GUIDE FOR LAW ENFORCEMENT 32 (1999) [hereinafter EYEWITNESS

EVIDENCE]; see also Tegoseak v. State, 221 P.3d 345, 358 (Alaska App. 2009)

(“[Witnesses] tend to select the person who looks most like their memory of the culprit,

even when none of the photos matches their memory exactly.”).

-47- 7110

instructing witnesses that the lineup might not contain the perpetrator had “minimal

effect” on identifications when the perpetrator was present;124 the other found that such

instructions increased correct identifications of the perpetrator.125 Both studies

emphasized the context of the latter finding: in the real world, the police may not know

whether a suspect is in fact the perpetrator, and the identification will be affected by a

host of other variables.126 Accordingly, “no good can come from biased instructions.”127

iii. The composition of lineups and

photographic arrays128

Were there at least five subjects in the lineup or array besides the suspect?

Did the suspect stand out in any way from the “fillers”? Lineups and photo arrays can

be constructed in ways that affect their reliability. Most obviously, reliability is

compromised if the suspect noticeably stands out from the “fillers” who make up the rest

of the group.129 As a compounding factor, a lineup that suggests a result to the witness

124

Steblay, supra note 123, at 288-89.

125

Clark, supra note 123, at 418.

126

Clark, supra note 123, at 420; Steblay, supra note 123, at 295-96.

127

Clark, supra note 123, at 420.

128

See State v. Lawson, 291 P.3d 673, 686 (Or. 2012) (en banc) (“The known-

innocent subjects used as lineup fillers should be selected first on the basis of their

physical similarity with the witness’s description of the perpetrator; if no description of

a particular feature is available, then the lineup fillers should be chosen based on their

similarity to the suspect.”); see also State v. Henderson, 27 A.3d 872, 897-99 (N.J.

2011).

129

Roy S. Malpass et al., Lineup Construction and Lineup Fairness, in 2

HANDBOOK OF EYEWITNESS PSYCHOLOGY: MEMORY FOR PEOPLE 155, 156 (Rod C.L.

Lindsay et al. eds., 2007) (“Decades of empirical research suggest that mistaken

(continued...)

-48- 7110

may artificially inflate the witness’s confidence in the identification because of its

apparent ease.130

Courts also conclude, based on the research, that lineups or arrays should

include a minimum number of “fillers” in order to ensure an adequate test of the

witness’s recall and to reduce the chance that an identification is the result of

guesswork.131 Although there is no “magic number” of fillers,132 many sources

recommend a minimum of five per single suspect.133 By the same logic and to reduce the

possibility that a witness will err by guessing, each lineup or photo array should include

only one suspect.134

(...continued)

eyewitness identifications are more likely to occur when the suspect stands out in a

lineup.”).

130

See David F. Ross et al., When Accurate and Inaccurate Eyewitnesses Look

the Same: A Limitation of the ‘Pop-Out’ Effect and the 10- to 12-Second Rule, 21

APPLIED COGNITIVE PSYCHOL. 677, 687 (2007); Gary L. Wells & Amy L. Bradfield,

Measuring the Goodness of Lineups: Parameter Estimation, Question Effects, and Limits

to the Mock Witness Paradigm, 13 APPLIED COGNITIVE PSYCHOL. S27, S30 (1999) (“In

short, the task of making an identification from a biased lineup probably appears to be

an easy one, thereby leading the eyewitnesses to be more confident in their decision even

while being more likely to make an error.”).

131

See Henderson, 27 A.3d at 898.

132

See id. (quoting testimony from Dr. Gary L. Wells).

133

See Roy S. Malpass et al., supra note 129, at 157-58; see also EYEWITNESS

EVIDENCE, supra note 123, at 29. In Young’s case, an investigating detective testified

that photo arrays, in his experience, generally include “five other people that look

basically like [the suspect].”

134

EYEWITNESS EVIDENCE, supra note 123, at 29.

-49- 7110

There is significant debate about the desirability of sequential identification

procedures — where suspects are viewed one at a time — as opposed to simultaneous

identification procedures, like lineups and photo arrays, where suspects are viewed as a

group. 135 Some scholars believe that the sequential procedure reduces the impact of

“relative judgment,” thereby increasing accuracy.136 Others find this conclusion

premature.137 Current research on simultaneous versus sequential procedures seems

insufficient to preclude either.

135

The State points to this difference in its arguments that the science of

eyewitness identifications is inconclusive.

136

See, e.g., Nancy Steblay et al., Eyewitness Accuracy Rates in Sequential

and Simultaneous Lineup Presentations: A Meta-Analytic Comparison, 25 LAW &HUM.

BEHAV. 457, 459-60, 462-64, 468 (2001).

137

See, e.g., Roy S. Malpass et al., Public Policy and Sequential Lineups, 14

LEGAL & CRIMINOLOGICAL PSYCHOL. 1, 11 (2009) (“Attempts to find alternative

technologies are laudable, and the work on the sequential lineup is pioneering. However,

research has not shown it to be better than what it intends to replace.”); Laura Mickes et

al., Receiver Operating Characteristic Analysis of Eyewitness Memory: Comparing the

Diagnostic Accuracy of Simultaneous Versus Sequential Lineups, 18 J. EXPERIMENTAL

PSYCHOL.: APPLIED 361, 374-75 (2012) (observing that some initial evidence “suggests

that switching from the simultaneous lineup procedure to the sequential lineup procedure

may be moving in the wrong direction [and] [o]nly time will tell whether this ends up

being the typical empirical result”); .

-50- 7110

iv. Feedback and recording confidence138

What feedback, if any, did the witness receive about the identification

procedure from the administrator? What expressions of confidence, if any, did the

witness make at the time of the identification? An administrator’s unconscious cues risk

influencing an eyewitness identification after as well as before the witness has selected

a suspect. Witnesses who receive confirmatory feedback express “significantly more . . .

confidence in their decision compared with participants who received no feedback,”139

and such feedback can lead witnesses to “significantly inflate their reports to suggest

better witnessing conditions at the time of the crime, stronger memory at the time of the

lineup, and sharper memory abilities in general.”140 Studies suggest that confirmatory

138

See State v. Henderson, 27 A.3d 872, 899-900 (N.J. 2011) (observing that

because of the malleability of an eyewitness’s confidence level and the effect that

feedback can have on reliability, it is good practice for the administrator of an

identification procedure to make an immediate record of any expression of confidence

by the witness before giving the witness any feedback); State v. Lawson, 291 P.3d 673,

687 (Or. 2012) (en banc).

139

Amy Bradfield Douglass & Nancy Steblay, Memory Distortion in

Eyewitnesses: A Meta-Analysis of the Post-Identification Feedback Effect, 20 APPLIED

COGNITIVE PSYCHOL. 859, 863 (2006).

140

Id. at 864-65; see also Gary L. Wells & Amy L. Bradfield, “Good, You

Identified the Suspect”: Feedback to Eyewitnesses Distorts Their Reports of the

Witnessing Experience, 83 J. APPLIED PSYCHOL. 360, 374 (1998) (“A confirming­

feedback remark not only inflates eyewitnesses’ recollections of how confident they were

at the time, it also leads them to report that they had a better view of the culprit, that they

could make out details of the face, that they were able to easily and quickly pick him out

of a lineup, that his face just ‘popped out’ to them, that their memorial image of the

gunman is particularly clear, and that they are adept at recognizing faces of strangers.”);

IDENTIFYING THE CULPRIT, supra note 81, at 91 (“The nature of law enforcement

interactions with the eyewitness before, during, and after the identification plays a role

in the accuracy of eyewitness identifications and in the confidence expressed in the

(continued...)

-51- 7110

feedback has an effect even when it comes 48 hours after an identification,141 and the

effect is powerful across other variables.142

v. Showups143

Was the witness identified in a showup? A “showup” is an identification

procedure in which a witness is presented with a single suspect and asked if the suspect

is the person who committed the crime.144 Alaska courts have long restricted the use of

showups as an identification procedure to where it is necessary under the

circumstances.145 The problems with showups are apparent: in contrast to lineups and

(...continued)

accuracy of those identifications by witnesses.”); see also Tegoseak v. State, 221 P.3d

345, 356-57 (Alaska App. 2009) (discussing how “the comments of a police investigator

can alter a witness’s perception or memory,” specifically how long they viewed the

perpetrator, how good their view was, how closely they paid attention, and even “their

recollection of their degree of certainty” at the time of the crime (emphasis omitted)).

141

Gary L. Wells et al., Distorted Retrospective Eyewitness Reports as

Functions of Feedback and Delay, 9 J. EXPERIMENTAL PSYCHOL.: APPLIED 42, 49-50

(2003).

142

See Jeffrey S. Neuschatz et al., The Effects of Post-Identification Feedback

and Age on Retrospective Eyewitness Memory, 19 APPLIED COGNITIVE PSYCHOL. 435,

449 (2005) (describing study in which “the post-identification feedback effect did not

vary with age or retention interval, which indicates how powerful the effect truly is”).

143

See Lawson, 291 P.3d at 707-08 (“Showups are widely regarded as

inherently suggestive — and therefore less reliable than properly administered lineup

identifications — because the witness is always aware of who police officers have

targeted as a suspect,” though “some research indicates that, when conducted properly

and within a limited time period immediately following an incident, showups can be

equally as reliable as lineups.”); see also Henderson, 27 A.3d at 902-03.

144

See Anderson v. State, 123 P.3d 1110, 1112 (Alaska App. 2005).

145

See, e.g., Howe v. State, 611 P.2d 16, 17-18 (Alaska 1980); see also

(continued...)

-52- 7110

photo arrays, which allow a witness with a faulty memory to pick someone other than

the suspect, every positive identification in a showup implicates the suspect.146 Showups

seemingly provide little protection against witnesses who are inclined to guess, as

witnesses participating in showups tend to base their identifications on clothing.147

Research shows that an innocent suspect who resembles the actual perpetrator is more

likely to be incorrectly identified in a showup than in a lineup.148

Showups can be reliable when they are conducted immediately after a

crime, when the witness’s memory is freshest; but research shows that the likelihood of

a misidentification increases significantly with showups as little as two hours after the

event.149

(...continued)

Anderson, 123 P.3d at 1116-17 (“As courts have frequently noted, show-ups are

inherently suggestive. . . . [But] in cases where a show-up is necessary, these factors

[indicating suggestiveness] do not, by themselves, make that show-up a violation of the

suspect’s rights under the due process clause.”).

146

See Lawson, 291 P.3d at 707-08 (“[B]ecause showups involve a lone

suspect, every witness who guesses will positively identify the suspect, and every

positive identification is regarded as a ‘hit.’ For that reason, misidentifications that occur

in showups are less likely to be discovered as mistakes.”).

147

See Jennifer E. Dysart et al., Show-ups: The Critical Issue of Clothing Bias,

20 APPLIED COGNITIVE PSYCHOL. 1009, 1019-21 (2006); see also Nancy Steblay et al.,

Eyewitness Accuracy Rates in Police Showup and Lineup Presentations: A Meta-

Analytic Comparison, 27 LAW & HUM. BEHAV. 523, 538 (2003).

148

Steblay et al., supra note 147 at 536-37.

149

See A. Daniel Yarmey et al., Accuracy of Eyewitness Identifications in

Showups and Lineups, 20 LAW & HUM. BEHAV. 459, 464-65 (1996) (“[A]fter [two

hours] a one-person lineup was four times as likely to lead to a false identification of the

innocent suspect than if that same suspect was in a six-person lineup . . . .”).

-53- 7110

vi. Multiple viewings150

Was the witness exposed to the suspect after the crime but before making

the identification?151 Did the witness fail to identify the suspect in an earlier procedure?

The reliability of an identification may suffer if the witness has viewed the suspect more

than once during the investigation. This concern arises in part because witnesses

struggle to determine whether their memory comes from their original observation of the

perpetrator or a later one. Studies describe this as “source confusion” or “source

monitoring” error.152 It arises in a number of different contexts.

For example, “mugshot exposure” occurs when a witness is repeatedly

exposed to a suspect’s photograph. The witness may fail to identify the suspect on the

first presentation but on the second will recognize the photo; including the same photo

in a second presentation can thus raise the risk of misidentification.153 A similar effect,

“mugshot commitment,” occurs when a witness identifies a suspect from a photograph

and the same photograph is included in a later identification procedure; studies show that

150

See State v. Henderson, 27 A.3d 872, 900-01 (N.J. 2011) (holding that due

to the negative effects that can result from multiple viewings, “law enforcement officials

should attempt to shield witnesses from viewing suspects or fillers more than once”);

Lawson, 291 P.3d at 686-87.

151

It is only exposure through state action that would constitute a “system

variable” for purposes of the trial court’s analysis of admissibility. Other exposures

would be “estimator variables.”

152

E.g., Kenneth A. Deffenbacher et al., Mugshot Exposure Effects:

Retroactive Interference, Mugshot Commitment, Source Confusion, and Unconscious

Transference, 30 LAW & HUM. BEHAV. 287, 289 (2006).

153

Id. at 299.

-54- 7110

in this circumstance the witness is more likely to remain “committed” to the suspect

originally selected even if the identification was incorrect.154

Estimator Variables

i. Stress 155

Did the witness view the perpetrator under particularly stressful

conditions? Stress is one of the so-called “estimator variables” — variables that are

intrinsic to the event or the witness and not subject to later manipulation. The level of

stress a witness experiences at the time of the crime may affect the accuracy of a later

identification.156 While the science shows that moderate levels of stress can help improve

accuracy of perception, it also shows that high levels of stress can negatively affect the

accuracy of both the witness’s identification of the suspect and the witness’s memory of

other details of the crime.157 Acknowledging the “negative effect of stress on the

154

See id. at 290-91; Gunter Koehnken et al., Forensic Applications of

Line-Up Research, in PSYCHOLOGICAL ISSUES IN EYEWITNESS IDENTIFICATION 205, 219

(Siegfried Ludwig Sporer et al. eds., 1996).

155

See Henderson, 27 A.3d at 904 (“[H]igh levels of stress are likely to affect

the reliability of eyewitness identifications. There is no precise measure for what

constitutes ‘high’ stress, which must be assessed based on the facts presented in

individual cases.”); Lawson, 291 P.3d at 687.

156

See, e.g., IDENTIFYING THE CULPRIT, supra note 81, at 94 (“High levels of

stress or fear can affect eyewitness identification. . . . Under conditions of high stress,

a witness’ ability to identify key characteristics of an individual’s face (e.g., hair length,

hair color, eye color, shape of face, presence of facial hair) may be significantly

impaired.”).

157

Kenneth A. Deffenbacher et al., A Meta-Analytic Review of the Effects of

High Stress on Eyewitness Memory, 28 LAW & HUM. BEHAV. 687, 699, 703 (2004)

(finding “considerable support for the hypothesis that high levels of stress negatively

impact both accuracy of eyewitness identification as well as accuracy of recall of crime­

(continued...)

-55- 7110

reliability of eyewitness identifications” may help jurors counteract the “common

misconception that faces seen in highly stressful situations can be ‘burned into’ a

witness’s memory.”158

ii. Weapons focus159

Was a weapon, or another unusual or distracting object, visible during the

time the witness was viewing the perpetrator? When an extraordinary detail captures a

witness’s attention, the witness’s ability to perceive other details may be compromised,

undermining the reliability of an identification.160 The “weapons focus effect” is one “in

which witnesses who observe a criminal with a visible weapon tend to remember less

about the criminal’s physical features and clothing than do witnesses who see the

(...continued)

related details”); Charles A. Morgan III et al., Accuracy of Eyewitness Memory for

Persons Encountered During Exposure to Highly Intense Stress, 27 INT’L J.L. &

PSYCHIATRY 265, 274-75 (2004) (finding that data “provide[d] robust evidence that

eyewitness memory for persons encountered during events that are personally relevant,

highly stressful, and realistic in nature may be subject to substantial error”); see

Tegoseak v. State, 221 P.3d 345, 355 (Alaska App. 2009) (“[T]he witness will often

grossly over-estimate the amount of time the perpetrator was in their view — especially

if the witness was under stress or anxiety at the time [the witness] observed the events.”).

158

Lawson, 291 P.3d at 701.

159

See Henderson, 27 A.3d at 904-05 (“When a visible weapon is used during

a crime, it can distract a witness and draw his or her attention away from the culprit.”);

see also Commonwealth v. Gomes, 22 N.E.3d 897, 920 & n.7 (Mass. 2015).

160

See 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, 10-12 (2009); see also

IDENTIFYING THE CULPRIT, supra note 81, at 93 (“The presence of an unusual object at

the scene of a crime can impair visual perception and memory of key features of the

crime event.”).

-56- 7110

criminal either empty-handed or with a neutral object.”161 While the effect may be small,

one study found it noteworthy.162 The weapons focus effect may interact with other

variables, such as a short duration of view (addressed below), to make an identification

even less reliable.163 And studies demonstrate that even objects that are nonthreatening

but incongruous — such as a stalk of celery — can have the same distracting effect.164

iii. Duration of view165

How long was the witness able to see the perpetrator? While there is no

minimum amount of time necessary for a witness’s observation of a suspect to result in

an accurate identification, longer viewings are more likely to lead to accurate

identifications.166 Relatedly, however, studies show that witnesses tend to overestimate

161

Kerri L. Pickel, Remembering and Identifying Menacing Perpetrators:

Exposure to Violence and the Weapon Focus Effect, in 2 HANDBOOK OF EYEWITNESS

PSYCHOLOGY: MEMORY FOR PEOPLE 339, 347-53 (Rod C.L. Lindsay et al. eds., 2007).

162

See Nancy Mehrkens Steblay, A Meta-Analytic Review of the Weapon

Focus Effect, 16 LAW & HUM. BEHAV. 413, 415-17, 420-21 (1992) (noting average

decrease in accuracy of about 10% in weapon-present conditions over weapon-absent

conditions).

163

See id. at 421 (“[S]ituations in which a witness observes a threatening

object play a central role in an event of short duration.”).

164

See Pickel, supra note 161, at 353-54 (discussing studies).

165

See State v. Lawson, 291 P.3d 673, 687 (Or. 2012) (en banc) (“Longer

durations of exposure (time spent looking at the perpetrator) generally result in more

accurate identifications.”); see also State v. Henderson, 27 A.3d 872, 905 (N.J. 2011).

166

See IDENTIFYING THE CULPRIT, supra note 81, at 97-98 (noting that meta­

analyses “have found that relatively long exposure durations produce greater accuracy”);

Colin Tredoux et al., Eyewitness Identification, in 1 ENCYCLOPEDIA OF APPLIED

PSYCHOL. 875, 877 (Charles Spielberger ed., 2004) (“The duration of the witness’s

exposure to the offender is related to later recognition performance, such that limiting

(continued...)

-57- 7110

the amount of time they had to view an incident, especially if conditions were stressful

or involved other stimuli.167

iv. Environmental conditions of view168

What environmental conditions, such as distance and lighting, may have

affected the witness’s ability to view the perpetrator? Environmental conditions under

which a witness views a perpetrator have an effect on the reliability of the identification.

For example, a witness’s identification will be less reliable when the perpetrator is seen

from farther away or under worse lighting conditions; studies have examined these

effects.169 People have difficulty estimating distances, which makes self-reports of

proximity somewhat suspect.170 Other factors, such as weather conditions, can affect a

witness’s ability to perceive. And as with other variables, environmental factors interact

with others: for example, studies demonstrate that witnesses who received confirmatory

(...continued)

exposure time generally reduces witness accuracy.”).

167

See Elizabeth F. Loftus et al., Time Went by So Slowly: Overestimation of

Event Duration by Males and Females, 1 APPLIED COGNITIVE PSYCHOL.3, 10-12 (1987);

A. Daniel Yarmey, Retrospective Duration Estimations for Variant and Invariant Events

in Field Situations, 14 APPLIED COGNITIVE PSYCHOL. 45, 52-53 (2000).

168

See Lawson, 291 P.3d at 687 (“The basic environmental conditions of

distance and lighting, combined with any aspect of the viewing environment — fog,

heavy rain or other weather conditions, cracked or dirty windows, glare, reflection,

shadow, or even physical obstructions within the witness’s line of sight — can

potentially impair an eyewitness’s ability to clearly view an event or a perpetrator.”); see

also Henderson, 27 A.3d at 906.

169

See, e.g., R.C.L. Lindsay et al., How Variations in Distance Affect

Eyewitness Reports and Identification Accuracy, 32 LAW & HUM. BEHAV. 526, 526-28,

532-35 (2008).

170

Id. at 533.

-58- 7110

feedback may report that the viewing conditions were more favorable than they actually

were, meaning that self-reporting may become both more confident and less reliable over

time.171

v. Witness characteristics172

Were there any characteristics of the witness, such as mental and physical

health, age, vision, or alcohol or drug use, that may have compromised the witness’s

ability to see and identify the perpetrator? The witness’s own personal characteristics

affect the accuracy of an identification. Physical and mental condition and visual acuity

are relevant, but there are other factors as well, such as alcohol impairment173 and age —

especially for the elderly and the very young.174

171

See Wells & Bradfield, supra note 140, at 372-75.

172

See Lawson, 291 P.3d at 687 (“Although different witnesses and fact

patterns may implicate different variables, some common variables that affect the ability

to perceive and remember include visual acuity, physical and mental condition (illness,

injury, intoxication, or fatigue), and age.”); see also Henderson, 27 A.3d at 906.

173

See Jennifer E. Dysart et al., The Intoxicated Witness: Effects of Alcohol on

Identification Accuracy from Showups, 87 J. APPLIED PSYCHOL. 170, 174 (2002)

(finding, perhaps not surprisingly, that intoxicated witnesses were “more likely than

sober [witnesses] to make a false identification from a target-absent showup”).

174

See James C. Bartlett & Amina Memon, Eyewitness Memory in Young and

Older Adults, in 2 HANDBOOK OF EYEWITNESS PSYCHOLOGY:MEMORY FOR PEOPLE 309,

332-34 (Rod C.L. Lindsay et al. eds., 2007) (explaining that though older eyewitnesses

generally have less accurate identifications, the effect may be absent, or even reversed,

for highly educated and verbally skilled seniors or those under the age of 70); Joanna D.

Pozzulo & R.C.L. Lindsay, Identification Accuracy of Children Versus Adults: A

Meta-Analysis, 22 LAW & HUM. BEHAV. 549, 563-65 (1998). Research also suggests

that the relative ages of the witness and the target of the identification may also matter,

finding that young witnesses are better at identifying young targets than older targets.

Bartlett & Memom, supra, at 321-26; Melissa Boyce et al., Belief of Eyewitness

(continued...)

-59- 7110

vi. Perpetrator characteristics175

Was the perpetrator disguised or otherwise difficult to describe? Has the

suspect’s appearance changed since the crime? The characteristics of the perpetrator

also affect the reliability of eyewitness identification. Witnesses are better at identifying

individuals with distinctive facial features than those without.176 As one would expect,

studies show that disguises reduce the accuracy of identifications.177 Masks, sunglasses,

hats, hoods, and other things that hide the hair and hairline affect witnesses’ ability to

accurately identify a perpetrator.178 And changes in the perpetrator’s appearance between

the time of the incident and the time of the identification (growing a beard, for example)

may do the same.179

(...continued)

Identification Evidence, in 2 HANDBOOK OF EYEWITNESS PSYCHOLOGY: MEMORY FOR

PEOPLE 501, 512 (Rod C.L. Lindsay et al. eds., 2007) (“People are better at identifying

those who are closer to them in age[]. . . . [Thus,] [p]erhaps people should only use age

as a factor in deciding whether to believe an eyewitness if there is a large age difference

between the witness and the suspect.”).

175

See Henderson, 27 A.3d at 907; Lawson, 291 P.3d at 688.

176

See Peter N. Shapiro & Steven Penrod, Meta-Analysis of Facial

Identification Studies, 100 PSYCHOL. BULL. 139, 145 (1986) (“[D]istinctive targets [are]

easier to recognize than ordinary looking targets.”).

177

Brian L. Cutler et al., Improving the Reliability of Eyewitness Identification:

Putting Context into Context, 72 J. APPLIED PSYCHOLOGY 629, 635 (1987).

178

See, e.g., Brian L. Cutler, A Sample of Witness, Crime, and Perpetrator

Characteristics Affecting Eyewitness Identification Accuracy, 4 CARDOZO PUB.L.POL’Y

& ETHICS J. 327, 332 (2006).

179

K.E. Patterson & A.D. Baddeley, When Face Recognition Fails, 3 J.

EXPERIMENTAL PSYCHOL.: HUM. LEARNING & MEMORY 406, 410, 414 (1977).

-60- 7110

vii. Race and ethnicity bias180

Are the witness and the perpetrator of different races or ethnicities?

Research also convincingly demonstrates that witnesses are much more likely to

accurately identify members of their own race or ethnicity than members of others, and

that eyewitness identification is therefore likely to be less reliable if witness and

perpetrator are of different races.181

viii. Memory decay/retention interval182

How much time passed between the crime and the identification procedure?

Research has not identified a precise time after which a witness’s identification is

unreliable, but the more time that passes between the initial confrontation and the

identification, the more reliability suffers.183 And studies show that memory decay is

180

See Henderson, 27 A.3d at 907; Lawson, 291 P.3d at 688.

181

IDENTIFYING THE CULPRIT, supra note 81, at 96 (“The race and ethnicity of

a witness as it relates to that of the perpetrator is another important estimator variable.”);

see generally Christian A. Meissner & John C. Brigham, Thirty Years of Investigating

the Own-Race Bias in Memory for Faces: A Meta-Analytic Review, 7 PSYCHOL., PUB.

POL’Y, & L. 3, 4-13, 27 (2001) (concluding that, because own-race bias presents a

significant risk of false identifications, the issue is of “great practical importance”).

182

See Lawson, 291 P.3d at 705 (“Estimating the effect of memory

decay . . . turns in large part on the strength and quality of the initial memory

encoded . . . . Consequently, memory decay must be viewed in conjunction with other

variables, such as cross-racial identification, weapon-focus, degree of attention, distance,

lighting, and duration of initial exposure.”); see also Henderson, 27 A.3d at 907.

183

Kenneth A. Deffenbacher et al., Forgetting the Once-Seen Face: Estimating

the Strength of an Eyewitness’s Memory Representation, 14 J.EXPERIMENTAL PSYCHOL:

APPLIED 139, 142 (2008) (“[M]emory strength will be weaker at longer retention

intervals than at briefer ones.”).

-61- 7110

exponential rather than linear; that is, an eyewitness’s memory vanishes more rapidly as

time goes by.184

ix. Co-witnesses185

Did the witness discuss the identification or receive information about the

suspect from co-witnesses or other non-state actors? The actions of third parties, like

those of law enforcement personnel, can affect the reliability of eyewitness

identifications.186 Studies show that feedback from other witnesses can influence a

witness’s memory of an event and that such feedback can cause witnesses to form false

184

See, e.g., IDENTIFYING THE CULPRIT, supra note 81, at 98 (“[T]he amount

of time that passes from the initial observation and encoding of a memory to a future

time when the initial observation must be recalled from memory[] can affect

identification accuracy.”); Deffenbacher, supra note 183, at 147-48 (describing findings

of a “meta-analysis of 53 facial memory studies”).

185

See Henderson, 27 A.3d at 907-09 (citing studies showing that “[c]o­

witness feedback may cause a person to form a false memory of details that he or she

never actually observed.”).

186

See Elin M. Skagerberg, Co-Witness Feedback in Line-Ups, 21 APPLIED

COGNITIVE PSYCHOL. 489, 494-95 (2007); see also IDENTIFYING THE CULPRIT, supra

note 81, at 93.

-62- 7110

memories of details.187 Further, feedback from other witnesses delivered indirectly —

through a third party — can influence the reliability of an identification.188

***

This evolved understanding of the factors affecting eyewitness

identifications shows convincingly that the Brathwaite test does not adequately assess

reliability. First, though purporting to test reliability, the Brathwaite test does not

consider many of the factors now known to affect it; the test relies primarily on the five

Biggers factors, which include “the opportunity of the witness to view the criminal at the

time of the crime, the witness’ degree of attention, the accuracy of his prior description

of the criminal, the level of certainty demonstrated at the confrontation, and the time

between the crime and the confrontation.”189 While the State argues that this list is not

exclusive and while some other courts have noted other factors,190 we are directed to no

187

Helen M. Paterson & Richard I. Kemp, Comparing Methods of

Encountering Post-Event Information: The Power of Co-Witness Suggestion, 20 APPLIED

COGNITIVE PSYCHOL. 1083, 1095-98 (2006); John S. Shaw, III et al., Co-Witness

Information Can Have Immediate Effects on Eyewitness Memory Reports, 21 LAW &

HUM. BEHAV. 503, 516-18 (1997); Rachel Zajac & Nicola Henderson, Don’t It Make My

Brown Eyes Blue: Co-Witness Misinformation About a Target’s Appearance Can Impair

Target-Absent Line-up Performance, 17 MEMORY 266, 275-77 (2009).

188

See Paterson & Kemp, supra note 187, at 1097-98; Shaw, supra note 187,

at 518-21.

189

Manson v. Brathwaite, 432 U.S. 98, 114 (1977) (discussing Neil v. Biggers,

409 U.S. 188, 199-200 (1972)).

190

See Suzannah B. Gambell, The Need to Revisit the Neil v. Biggers Factors:

Suppressing Unreliable Eyewitness Identifications, 6 WYO. L. REV. 189, 207-14 (2006)

(summarizing jurisdictions examining factors in addition to the five Biggers factors

under Brathwaite).

-63- 7110

appellate decision in Alaska that has relied on any factors other than the listed five.191

Adhering to the Brathwaite test means that trial courts are unlikely to consider many

system and estimator variables now known to affect the reliability of eyewitness

identifications.

Second, three of the five Biggers factors used in the Brathwaite test — the

witness’s degree of attention, opportunity to view, and level of certainty — rely on the

witness’s own subjective perceptions.192 But many factors affect the accuracy of self-

reporting, as discussed above, and witnesses may be unaware of them. The Brathwaite

test is weakened by its heavy dependence on self-reporting with no means of gauging

that reporting’s reliability.193

With respect to an eyewitness’s level of certainty, the relationship between

certainty and accuracy is not straightforward and is significantly affected by other

characteristics of both the identification and the witness.194 As discussed above, an

191

See, e.g., Walker v. State, 652 P.2d 88, 95 (Alaska 1982); Vessell v. State,

624 P.2d 275, 279 (Alaska 1981); Howe v. State, 611 P.2d 16, 18 (Alaska 1980); Holden

v. State, 602 P.2d 452, 456 (Alaska 1979); Young v. State, 331 P.3d 1276, 1280-81

(Alaska App. 2014); White v. State, 773 P.2d 211, 215 (Alaska App. 1989); Dunbar v.

State, 677 P.2d 1275, 1278 (Alaska App. 1984); State v. Contreras, 674 P.2d 792, 820

(Alaska App. 1983), rev’d on other grounds sub nom. Contreras v. State, 718 P.2d 129

(Alaska 1986).

192

Wells & Quinlivan, supra note 160, at 9 (explaining that “[p]sychological

scientists are highly skeptical of [subjective] retrospective self-reports because of well-

known tendencies for such reports being at odds with objective facts”).

193

See id. (“At another level, psychological scientists find it somewhat odd

that an eyewitness, whose credibility as a witness is being assessed, would be asked to

report on his or her own credibility.”).

194

See Gary L. Wells & Elizabeth A. Olson, Eyewitness Testimony, 54 ANN.

REV. PSYCHOL. 277, 283-84 (2003).

-64- 7110

eyewitness’s certainty can be increased by feedback from law enforcement personnel or

other witnesses;195 and studies show that “[t]his certainty-inflation effect is greater for

eyewitnesses who make mistaken identifications than it is for those who make accurate

identifications, resulting in a significant loss in the certainty-accuracy relation.”196 This

is additionally problematic because eyewitnesses’ certainty in their identifications may

be of great weight to jurors,197 who, like the witnesses themselves, are not likely to be

aware of the factors that can affect the relationship between confidence and accuracy.198

195

See supra Section IV.A.3.b.viii.

196

Wells & Olson, supra note 194, at 283; see also Amy L. Bradfield et al.,

The Damaging Effect of Confirming Feedback on the Relation Between Eyewitness

Certainty and Identification Accuracy, 87 J. APPLIED PSYCHOL. 112, 117 (2002) (“Our

results indicate that confirming feedback significantly diminishes the strength of the

certainty-accuracy relation, thereby reducing the usefulness of retrospective certainty

reports as cues to identification accuracy. The strength of the certainty-accuracy relation

was diminished because confirming feedback inflated the retrospective certainty reports

of inaccurate witnesses but not the reports of accurate witnesses.”).

197

See Michael R. Leippe et al., Cueing Confidence in Eyewitness

Identifications: Influence of Biased Lineup Instructions and Pre-Identification Memory

Feedback Under Varying Lineup Conditions, 33 LAW & HUM. BEHAV. 194, 194 (2009)

(summarizing studies and concluding that, “[a]mong other insights, several conclusions

may be drawn from the research,” including that “factfinders tend to overestimate the

accuracy of eyewitnesses who express confidence in their identifications”).

198

See Tanja Rapus Benton et al., Eyewitness Memory Is Still Not Common

Sense: Comparing Jurors, Judges and Law Enforcement to Eyewitness Experts, 20

APPLIED COGNITIVE PSYCHOL.115, 119-20 (2006) (concluding that “large discrepancies

between juror and expert knowledge were found for . . . the accuracy-confidence

relation,” among other factors, and that only 50% of jurors were aware of the malleability

of confidence as a factor affecting eyewitness identifications).

-65- 7110

The science also shows that a highly suggestive procedure can reinforce a

mistaken identification in a witness’s mind.199 As described above, factors contributing

to a finding of unnecessary suggestiveness could themselves make identifications

unreliable by giving witnesses an artificially inflated belief in the accuracy of their

erroneous identifications.200 Because the Brathwaite test assesses reliability only after

the defendant has shown that the procedure was unnecessarily suggestive, the test could

have the perverse effect of making it more likely an improperly suggestive identification

procedure will be found reliable and admissible, because the suggestiveness itself has

made the witness more certain.201

c. The new test, consistent with the due process clause of

Alaska’s constitution, for determining the admissibility of

eyewitness identification evidence affected by suggestive

state procedures

Young argues that we should adopt a rule of per se exclusion for eyewitness

identifications that are affected by system variables, that is, those that are subject to

influence by the State. He argues that this approach will better deter improper police

practices and protect defendants’ constitutional rights. While per se exclusion would

result in the greatest protection against the effects of unreliable eyewitness

identifications, we agree with the State that a rule of per se exclusion, “requir[ing]

suppression of reliable evidence any time a law enforcement officer missteps,”202 goes

too far. We have rejected such a rule in the past, “both because it runs counter to the

199

See Wells & Quinlivan, supra note 160, at 9-14.

200

See id. at 16-17.

201

See id.; Tegoseak v. State, 221 P.3d 345, 356-57 (Alaska App. 2009)

(noting the same analytical flaw).

202

See State v. Henderson, 27 A.3d 872, 878 (N.J. 2011).

-66- 7110

clear weight of authority in Alaska and the federal system, and because it results in the

unnecessary exclusion of much reliable evidence.”203

Instead, the test we announce today acknowledges the evolution in our

understanding of factors that affect the reliability of eyewitness identifications, thereby

protecting defendants’ rights to due process under the Alaska Constitution, while at the

same time taking into account law enforcement’s need for eyewitness evidence. It

closely follows the framework set out by the Supreme Court of New Jersey in State v.

Henderson.204

First, to be entitled to an evidentiary hearing on the issue, the defendant

must present “some evidence of suggestiveness that could lead to a mistaken

identification.”205 This proffer must “be tied to a system — and not an estimator —

variable,”206 consistent with the principle of due process law that only state action

triggers constitutional protections.207 We emphasize that a defendant need not show that

a procedure was “unnecessarily suggestive” in order to get a hearing; that the

identification involved a system variable is itself enough to trigger that process.

203

See Viveros v. State, 606 P.2d 790, 792 n.1 (Alaska 1980).

204

27 A.3d at 919-22.

205

Id. at 920.

206

Id.

207

See Nichols v. Eckert, 504 P.2d 1359, 1362 (Alaska 1973) (“For [the due

process] clause to apply there must be state action and the deprivation of an individual

interest of sufficient importance to warrant constitutional protection.”).

-67- 7110

At the hearing the State must present evidence that the identification is

nonetheless reliable.208 The superior court’s ensuing analysis of reliability should

consider all relevant system and estimator variables under the totality of the

circumstances.209 Although the variables to consider include those discussed above, we

emphasize that the list is non-exclusive; the scientific understanding of eyewitness

memory continues to evolve.210 Because of this, trial courts should not hesitate to take

expert testimony that explains, supplements, or challenges the application of these

variables to different fact situations.

Although the defendant must only identify a relevant system variable in

order to obtain a hearing, the defendant retains the burden of proving at that hearing a

“very substantial likelihood of irreparable misidentification.”211 If the defendant meets

this burden, the trial court should suppress the evidence — both the pretrial identification

and any subsequent in-court identification by the witness.212 If the defendant does not

meet the burden, however, the court should admit the evidence and provide the jury with

an instruction appropriate to the context of the case, which we discuss in greater detail

below.213

208

See Henderson, 27 A.3d at 920.

209

Id.

210

Id. at 922 (“We recognize that scientific research relating to the reliability

of eyewitness evidence is dynamic; the field is very different today than it was in 1977,

and it will likely be quite different thirty years from now.”).

211

Id. at 920.

212

Id.

213

See id.

-68- 7110

“Of course, nothing has altered the State’s burden of proving at trial the

identity of the accused as the person who committed the charged offense beyond a

reasonable doubt.”214

4. Jury instructions should take into account this new test for the

reliability of eyewitness identifications.

If eyewitness identification is a significant issue in a case, the trial court

should issue an appropriate jury instruction that sets out the relevant factors affecting

reliability. The Supreme Court in Perry v. New Hampshire, though retaining the

Brathwaite test, took “account of other safeguards built into our adversary system that

caution juries against placing undue weight on eyewitness testimony of questionable

reliability,” noting especially “[e]yewitness-specific jury instructions, which many

federal and state courts have adopted, . . . [that] warn the jury to take care in appraising

identification evidence.”215 We agree that jury instructions specific to eyewitness

identifications are necessary for the jury’s proper understanding of the issue.

While it is “the province of the jury to determine credibility of

witnesses,”216 “the reliability of eyewitness identifications frequently is not a matter

within the knowledge of an average juror.”217 Many of the factors that affect reliability

“are counterintuitive and, therefore, not coterminous with ‘common sense.’ ”218 “Thus,

214

State v. Henderson, 77 A.3d 536, 544-45 (N.J. Super. Ct. App. Div. 2013).

215

132 S. Ct. 716, 728-29 (2012) (internal citations omitted).

216

Galauska v. State, 532 P.2d 1017, 1018 (Alaska 1975).

217

State v. Guilbert, 49 A.3d 705, 731 (Conn. 2012).

218

Young v. Conway, 698 F.3d 69, 79 (2d Cir. 2012) (noting, as factors

affecting reliability, “the perpetrator’s wearing a disguise, the presence of a weapon, the

stress of the situation, the cross-racial nature of the crime, the passage of time between

(continued...)

-69- 7110

while science has firmly established the ‘inherent unreliability of human perception and

memory,’ this reality is outside ‘the jury’s common knowledge,’ and often contradicts

jurors’ ‘commonsense’ understandings.”219

We refer the issue of eyewitness-specific jury instructions to the Criminal

Pattern Jury Instructions Committee and ask that it draft a model instruction appropriate

for use in future cases, consistent with the principles we announce today.

B. It Was Error Not To Give A Specific Jury Instruction On The

Reliability Of Eyewitness Identifications, But The Error Was

Harmless.

Young argues that the superior court erred when it refused to give a jury

instruction specific to the reliability of eyewitness identifications. Although trial courts

are generally constrained to apply the law as it is rather than the law as they believe it

should be, we agree that such an instruction should have been given in Young’s case.

Alaska Rule of Criminal Procedure 30(b) states that “[t]he court shall

instruct the jury on all matters of law which it considers necessary for the jury’s

information in giving their verdict”; “[w]hether or not a requested jury instruction should

be given lies in the discretion of the trial court.”220 “ ‘[A]s long as the instructions

actually given by the trial court adequately set forth the applicable law, a more elaborate

218

(...continued)

observation and identification, and the witness’s exposure to defendant through multiple

identification procedures”).

219

United States v. Brownlee, 454 F.3d 131, 142 (3d Cir. 2006) (quoting

Rudolf Koch, Note, Process v. Outcome: The Proper Role of Corroborative Evidence

in Due Process Analysis of Eyewitness Identification Testimony, 88 CORNELL L. REV.

1097, 1099 n.7 (2003)).

220

Snyder v. State, 930 P.2d 1274, 1280 (Alaska 1996).

-70- 7110

explanation of the defendant’s theory of the case’ is not required unless it ‘would

substantially aid the jury in arriving at a just verdict.’ ”221

At trial, Young proposed two jury instructions specific to eyewitness

evidence. The first discussed the burden of proof on identity and summarized factors

other courts have found to affect the reliability of eyewitness identifications, including

reference to the court of appeals’ opinion in Tegoseak v. State.222 The second proposed

instruction was modeled after one approved by the United States Court of Appeals for

the District of Columbia Circuit in United States v. Telfaire.223 The superior court

declined to give either instruction. It found that Tegoseak was not controlling because

its summary of the factors affecting the reliability of eyewitness identifications was dicta,

that Young’s draft instruction was “more argument than . . . a proposition of law,” and

that the proposed instruction would be redundant since the pattern instructions discuss

the burden of proof and witness credibility generally. The superior court refused to give

the Telfaire instruction for the same reasons. In affirming these rulings, the court of

appeals relied on its prior decisions in which it had “affirmed convictions where the trial

court gave the pattern instruction instead of a more focused instruction on eyewitness

identification.”224

221

Robart v. State, 82 P.3d 787, 795 (Alaska App. 2004) (alteration omitted)

(quoting Lee v. State, 760 P.2d 1039, 1041 (Alaska App. 1988)).

222

221 P.3d 345 (Alaska App. 2009).

223

469 F.2d 552, 558-59 (D.C. Cir. 1972).

224

Young v. State, 331 P.3d 1276, 1281 (Alaska App. 2014) (citing McGee v.

State, 614 P.2d 800, 804 (Alaska 1980); Dayton v. State, 598 P.2d 67, 68 (Alaska 1979);

Larson v. State, 656 P.2d 571, 575-76 (Alaska App. 1982); Williams v. State, 652 P.2d

478, 480 (Alaska App.1982)).

-71- 7110

The principle cited by the court of appeals originated in a 1977 opinion,

Buchanan v. State.225 In Buchanan, a defendant was charged with attempted sexual

abuse of a minor, and the victim identified him in a pretrial lineup.226 The superior court

instructed the jury “that the state ha[d] the burden of proving accurate identification

beyond a reasonable doubt,” rejecting the defendant’s requested instruction that went

“beyond the court’s instruction in that it focuse[d] attention on possible inadequacies of

a witness’ identification, such as the time intervening, the opportunity for the witness to

observe in the first instance, and possible external influences on the witness’

testimony.”227 We found no error in the court’s decision because the instruction “given

by the court embodied correct statements of the controlling law on the subject of

identification.”228

As described above, however, the understanding of the factors affecting the

reliability of eyewitness identifications has evolved significantly since Buchanan229 in

ways that are “largely unfamiliar to the average person, and, in fact, many . . . are

counterintuitive.”230 We can no longer say with confidence that the pattern witness

225

561 P.2d 1197 (Alaska 1977).

226

See id. at 1200. At the time, the statute defined the crime as “lewd and

lascivious acts toward a child.” Id. at 200 (citing former AS 11.15.134).

227

Id. at 1207.

228

Id.

229

Buchanan was decided in March 1977. 561 P.2d at 1197. The United

States Supreme Court decided Manson v. Brathwaite three months later. See 432 U.S.

98 (1977).

230

State v. Guilbert, 49 A.3d 705, 723 (Conn. 2012).

-72- 7110

credibility instruction is adequate to explain the potential unreliability of eyewitness

identifications.

Furthermore, eyewitness identification was a significant issue in Young’s

case: he presented an alibi defense, and the State countered with eyewitnesses who

claimed to have seen him behind the wheel of the shooters’ vehicle. Young challenged

the admissibility of two of the identifications. And the State’s closing argument relied

heavily on the eyewitnesses’ testimony.

In these circumstances, an instruction alerting the jury to the potential

fallibility of eyewitness identifications was “necessary for the jury’s information in

giving their verdict.”231 And while it is true that the instructions Young proposed were

“not perfect statements of Alaska law in this area,” they “certainly sufficed to draw the

matter . . . to the judge’s attention.”232

We cannot say, however, that the failure to give Young’s requested jury

instructions “appreciably affect[ed] the verdict” against him.233 First, the State’s case did

not rest on identification by a single witness; the State presented three independent

witnesses with different perspectives and no apparent connections to each other,

including one who had known Young before the crime.

231

Alaska R. Crim. P. 30(b).

232

Des Jardins v. State, 551 P.2d 181, 189 (Alaska 1976).

233

Evans v. State, 574 P.2d 24, 25-26 (Alaska 1978) (holding that failure to

give informer instruction was harmless). Young contends that “[i]n certain cases,

focused instructions on how to evaluate eyewitness identification evidence are necessary

to safeguard the presumption of innocence,” citing United States v. Telfaire, 469 F.2d

552, 555 (D.C. Cir. 1972). While we agree with Young’s premise, this is not such a

case. Telfaire dealt with “the uncorroborated testimony of a single witness.” Id. at 554.

In this case, given the other eyewitnesses and corroborating evidence, the error in failing

to give an eyewitness identification instruction was not of constitutional dimension.

-73- 7110

Second, in jury voir dire, cross-examination, and closing arguments,

Young’s attorneys raised and emphasized many of the concerns that would have been

addressed by the proposed instructions.234 In addition to criticizing the individual

identifications specifically, Young’s attorneys addressed a number of system and

estimator variables, including the possibility that suggestion by law enforcement officers

could result in a sincerely believed but false memory; the tendency of human memory

to “fill in the holes” with things not actually witnessed; and the tendency of a witness to

overstate the favorableness of the conditions under which the crime was viewed.

Young’s counsel discussed in voir dire a highly publicized case of wrongful conviction

by eyewitness misidentification and referred to the case again in closing.235

Finally, the State’s case against Young relied on other evidence besides the

testimony of eyewitnesses, including his possession of both the gun and the key to the

SUV allegedly involved in the shooting and the testimony of several witnesses that the

assailants’ SUV was Young’s.

For these reasons, we conclude that the failure to give a jury instruction

specific to eyewitness identification, though error, was harmless.

234

Cf. Buchanan, 561 P.2d at 1207 n.28 (noting “that all of the factors to

which the instruction alluded were referred to by Buchanan’s counsel in his final

argument to the jury”); Riley v. State, 60 P.3d 204, 208 (Alaska App. 2002) (holding that

flaws in jury instructions can be cured by the arguments of the parties).

235

The facts of that case are also discussed in Tegoseak v. State, 221 P.3d 345,

352-53 (Alaska App. 2009).

-74- 7110

C. The Superior Court Did Not Abuse Its Discretion By Denying Young’s

Motion For Mistrial.

Young also claims that the court of appeals erred when it affirmed the

superior court’s denial of his motion for mistrial due to what the court of appeals found

to be a discovery violation by the State: its failure to inform the defense that Arauz gave

a statement to Detective Elzey on the night of the shooting, identifying Young as one of

the shooters. We agree that the superior court did not abuse its discretion in denying a

mistrial, though our analysis differs from that of the court of appeals.

Alaska Rule of Criminal Procedure 16(b)(1)(A)(i) requires the State to

disclose to the defendant “[t]he names and addresses of persons known by the

government to have knowledge of relevant facts and their written or recorded

statements.” In denying a mistrial, the superior court held that this rule did not apply to

Arauz’s statement to Detective Elzey because the statement had not been written or

recorded; the superior court also found a lack of prejudice. The court of appeals

disagreed with the superior court on whether the State’s failure to disclose violated Rule

16(b)(1)(A)(i), holding that it did.236 But the court of appeals nevertheless affirmed

Young’s conviction, holding that the superior court did not err in concluding that Young

had failed to show a “plausible way in which his defense was prejudiced” by the State’s

failure to disclose.237

We agree with the court of appeals that there was a discovery violation.

The police reports that were disclosed to the defense stated that Arauz had not been able

to identify Young on the day of the shooting, which was the exact opposite of the

236

Young v. State, 331 P.3d 1276, 1283 (Alaska App. 2014).

237

Id.

-75-

This text is long and has been trimmed here. Open the source document for the complete record.