holding that, even though an instruction on “the strength of the identification” “incorporates some of the fallacious assumptions expressed by the Supreme Court in Neil v. Bigger s[, supra, it] would seem to suffice as an adequate cautionary instruction under most circumstances”
How later courts described this case
- holding that, even though an instruction on “the strength of the identification” “incorporates some of the fallacious assumptions expressed by the Supreme Court in Neil v. Bigger s[, supra, it] would seem to suffice as an adequate cautionary instruction under most circumstances”
- stating that "a proper instruction should sensitize the jury to the factors that empirical research have shown to be of importance in determining the accuracy of eyewitness identifications, especially those that laypersons most likely would not appreciate"
- holding, with respect to identifications far more questionable than the one under review, that the trial court must give a cautionary instruction whenever identification is a central issue in the case and that instruction is requested by defendant
- noting that research indicates giving cautionary instruction in conjunction with strong eyewitness testimony serves to bolster the identification testimony
Written by the judges who cited it.
The opinion
HALL, Chief Justice
(concurring and dissenting):
I join the Court in remanding for a new trial on the charge of possession of a dangerous weapon. However, I do not agree that because the trial court refused to give a cautionary instruction on the reliability of eyewitness testimony the defendant is also entitled to a new trial on the charge of aggravated assault.
*496 In State v. Green, 1 the Court stated the law in Utah to be:
In this jurisdiction the trial judge is not permitted to comment on the evidence.... It is the sole and exclusive province of the jury to determine the facts in all criminal cases, whether the evidence offered by the state is weak or strong, is in conflict or is not controverted.... These principles of law are so fundamental in our system of criminal procedure that we deem it unnecessary to cite cases and authorities in support thereof.
In the cases that have followed, the Court has adhered to the principle of law espoused in Green and in Utah R.Civ.P. 51 and Utah R.Crim.P. 19 that a trial judge is not permitted to comment on the quality or credibility of the evidence and may not indicate that the evidence is either weak or convincing. 2 However, as was observed in State v. Sanders, 3 the principle of law that precludes the trial court from commenting on the evidence does not preclude the court from including in its instructions general statements concerning certain types of evidence. The court is only enjoined from commenting on the quality or credibility of the evidence in such a way as to indicate that it favors the claims or position of either party. The enjoinder is necessary to prevent any intrusion upon the prerogatives of the jury to judge the credibility of the evidence and to determine the facts. Consistent with these concepts, the Court has concluded that the giving of special instructions on eyewitness testimony should be left to the sound discretion of the trial court. 4 On appeal, this Court scrutinizes the instructions given to the jury to determine if, when viewed as a whole, the instructions adequately advised the jury on the law pertaining to the case. 5 Specifically, the Court has noted that three general instructions cover the same substance as a cautionary instruction: (1) that the State has the burden to prove guilt beyond a reasonable doubt; (2) that the jury is the exclusive judge of the credibility of witnesses; and (3) that to find guilt the jury must find the defendant committed all of the elements of the offense. 6
I am not persuaded by the facts of this case that the trial court abused its discretion in declining to give a special cautionary instruction in addition to the general instructions on burden of proof, reasonable doubt, and witness credibility that were given.
The credibility of Jacob Rocha was tested on direct and on cross-examination, and defense counsel thoroughly explored the issue of his credibility in final argument to the jury.
The defendant’s theory of the case was that he was merely present at the scene and that he was incorrectly identified as the gunman. However, the defendant rested at the close of the State’s case in chief without calling any witnesses. Thus, the uncontroverted evidence placed the defendant at the doorway and not in some other area where a stray bullet might strike him. Furthermore, the evidence was that Rocha was able to observe the defendant standing alone in the doorway for some thirty seconds attempting to reload the shotgun and *497 that Rocha fired at the defendant and hit him.
The defendant makes no claim of insufficiency of the evidence, and indeed there is none. In fact, even if Rocha had been unable to identify the defendant as his assailant, the remaining undisputed evidence made out a prima facie case upon which the jury could deliberate guilt or innocence: the defendant was on the scene; the shotgun blast came from a lone person who appeared in the doorway; that person was fired upon by Rocha; and the defendant in fact was struck by the bullet fired by Rocha.
I would affirm the conviction of aggravated assault.
HOWE, Justice
(concurring and dissenting):
I concur in remanding for a new trial on the charge of possession of a dangerous weapon.
I would affirm the conviction of aggravated assault because it does not rest entirely on the identification made by Jacob Rocha. It is also supported by strong circumstantial evidence. Jacob testified that a man (whom he identified as the defendant) fired a sawed-off shotgun through the door as it was forced open. Jacob was then four to five feet away from the door. He “flew back” twelve feet and from that location looked out the doorway and saw the man with the shotgun apparently reloading it. Jacob picked up his handgun and fired it at the man, who was eighteen to twenty feet away. At no time did he see anyone else through the doorway other than the man who had shot him. According to the testimony of Robin Lee, when the defendant and Hobsun returned to their car, it was Long and not Hobsun who was wounded. The arresting officers also saw that Long had been shot. As pointed out by the Chief Justice, these facts fully support the conclusion that it had to be the defendant and not someone else who was Jacob’s assailant, quite independently of Jacob’s eyewitness identification of the defendant.
I would continue to adhere to our present rule that the giving of a cautionary instruction on eyewitness identification is discretionary with the trial court. State v. Malmrose, 649 P.2d 56 (Utah 1982). I believe that this rule has worked well. That we have not reversed a trial court for refusing a defendant’s request, as pointed out by the majority opinion, fails to prove otherwise. We have usually, if not always, found evidence corroborating the eyewitness identification. When a cautionary instruction is given, I would favor a brief instruction, couched in general cautionary terms. The instruction suggested in the majority opinion (and it is only suggested) is in my opinion much too long, repetitious, and leads the jury through a detailed checklist. By its sheer length and detail, it overshadows the other instructions and is heavily slanted in favor of the defendant. It is not clear whether the jury can rely on the identification if they have reasonable doubt about any of the twenty considerations which are listed.
The suggested instruction is also objectionable to me because it incorporates conclusions from the articles relied upon in the majority opinion which I am not prepared to embrace. For example, in factor (3), the suggested instruction states as a fact that “[e]ven if the witness had adequate opportunity and capacity to observe the criminal actor, the witness may not have done so unless he was aware that a crime was being committed.”' While I agree as a general proposition that an observer would give more attention to a scene where he thought a crime was being committed than he might ordinarily otherwise do, it by no means follows that because the observer does not know that a crime is being committed, his identification and perception will be less accurate or faulty. Some people are keenly observant, and their identification is very reliable if they have an adequate opportunity to observe. This would be true even though the setting was business, social, or casual. The fact that a crime was not being committed would make no difference.
. 78 Utah 580, 589-91 , 6 P.2d 177, 181 (1931). See also Utah R.Civ.P. 51; Utah R.Crim.P. 19 (U.C.A., 1953, § 77-35-19 (Repl.Vol. 8C, 1982 ed.)) (providing that the court shall not comment on the evidence in the case, and if the court refers to any of the evidence, it shall instruct the jury that they are the exclusive judges of all questions of fact).
. State v. Rosenbaum, 22 Utah 2d 159, 160 , 449 P.2d 999, 1000 (1969); State v. Sanders, 27 Utah 2d 354, 362 , 496 P.2d 270, 275 (1972).
. 27 Utah 2d at 362, 496 P.2d at 275.
. State v. Booker, 709 P.2d 342, 346 (Utah 1985); State v. Tucker, 709 P.2d 313, 316 (Utah 1985); State v. Bingham, 684 P.2d 43, 45 (Utah 1984); State v. Reedy, 681 P.2d 1251, 1252-53 (Utah 1984); State v. Newton, 681 P.2d 833, 834 (Utah 1984). See also State v. Schaffer, 638 P.2d 1185, 1187 (Utah 1981); State v. McCumber, 622 P.2d 353, 359 (Utah 1980).
. Id.
. Id.