Brief for the United States — Perez v. United States (No. 05-596)

The jury found petitioner guilty on al! five counts.

The district court sentenced him to a prison term of life

plus five years. Gov't C.A, Br. 4-5.

6. Petitioner raised a number of claims on appeal,

including a challenge to the admission of Lopez's out-of-

court identification. The court of appeals affirmed, re-

jecting one of petitioner's claims in a published opinion

and his remaining claims, including his challenge to the

admission of the identification, in an unpublished sum-

mary order. Pet. App. la-Gia, 7a-10a. The court rejected

petitioner's identification claim in a single paragraph.

Id. at 10a. It noted that the district court had “con-

ducted a multi-day Wade hearing” and had “reasonably

determined that though the procedures used in obtain-

ing the identification of |petitioner| were suggestive, the

identification by one of his co-conspirators was itself

reliable.” /hid. “Based on the district court's analysis,”

the court of appeals concluded, “there was no clear er-

ror” in the admission of Lopez's identification. hid

ARGUMENT

In Neil v. Biggers, 409 ULS. P88 (1972), and again in

Mausow v. Brathwaite, 482 US. OS (1977), this Court

considered when due process requires the exclusion of

identification evidence following an out-of-court identifi-

cation. Under those decisions, if the identification pro-

cedure was not unduly suggestive, the identification is

wimissible without further inquiry, and if the procedure

wes unduly suggestive, the identification is admissible

ux long as the identification ix independently reliable.

$32 US. at 107-117; 409 ULS. at 196-201. In both

Biggers and Brathicaite, the Court listed factors to be

considered in determining whether, despite an unduly

sugvestive procedure, the identification was reliable.

s

432 U.S. at 114; 409 ULS. at 199-200. One of those fac-

tors is the level of certainty of the witness. 432 U.S. at

114; 409 ULS. at 196. Relying on scientific studies ad-

dressing the correlation between a witness's certainty

and the accuracy of the identification, petitioner con-

tends (Pet. 3-20) that witness certainty should be re-

moved from the list of factors to be considered,

Certiorari should be denied. First, the scientific evi-

dence is not one-sided, and certainly is not sufficiently

one-sided to justify overruling Biggers and Brathiwaite

in part. Second, despite petitioner's claim that the em-

pirical foundations of Biggers and Brathwaite have

washed away, no division of authority has emerged in

the lower courts on whether the rule petitioner advo-

cates is required by federal due process. Third, peti-

tioner’s claim was not adequately presented to, and was

not passed upon by, the court of appeals. Finally, this

case is also an unsuitable vehicle for deciding the ques-

tion presented because adoption of petitioner's rule

would have no effect on the outcome.

1. Petitioner does not challenge the applicable con-

stitutional standard, which is “whether under the ‘total-

itv of the circumstances’ the identification was reliable

even though the [identification! procedure was sugges-

tive.” Biggers, 409 U.S. at 199. On the contrary, he ac-

knowledges (Pet. 4) that “reliability is the linchpin in

determining the admissibility of identification testi-

mony.” Brathwaite, 42 US. at 114. Petitioner's claim

ix much narrower. He contends that, in deciding

whether the identification was reliable, trial courts

should be prohibited from considering “the level of cer-

tainty demonstrated by the witness.” Biggers, 409 US.

at 199. But certainty is not the only, or even the pri-

mary, basis for a finding of reliability; it is one of five

9

factors identified by the Court, and the list is not ex-

haustive. See Brathwaite, 432 U.S. at 114 (factors “in-

clude” five identified by Court); Biggers, 409 U.S. at 199

(same). As explained beiow, there is no justification for

the Court to make the modification urged by petitioner

to the totality-of-the-circumstances test for deciding the

reliability of an identification, and thereby to overrule

Biggers and Brathieaite in part.

Contrary to petitioner's assertion, the witness’s level

of certainty has not been “conclusively shown” to have

“little or no correlation with the accuracy of thie] identi-

fication” (Pet. 3), and there is no “scientific consensus”

(Pet. 5)—much less an “overwhelming” one (bid.)j—

that supports his proposed rule. As the Supreme Court

of Connecticut observed only a few months ago, the “sci-

entific studies” on the correlation between a witness's

confidence and the accuracy of his identification “are not

definitive.” State v. Ledbetter, 881 A.2d 290, 313 (2005).

Accordingly, as the Supreme Judicial Court of Massa-

chusetts observed only a few weeks ago, “there does not

appear to be a consensus within the psychological com-

munity that ‘no’ relationship exists.” Commonwealth vy.

Cruz, 8389 N.E.2d 324, 331 (2005). Indeed, a number of

studies, including some of the more recent ones on which

petitioner relies, “show|| a positive correlation” between

confidence and accuracy. Ledbetter, 881 A.2d at 313,

See, og, Gary L. Wells & Elizabeth A. Olson, Eyevitiess

Testimony, 5A Ann. Rev. Psychol. 277, 288 (2003) Although any given

experiment might shew a statistically nonsignificant relation between

certainty and accuracy. meta-analyses of the literature show a reliable

correlation.” Gary L. Wells et al. Ryewituess Identificution Lro-

cedures: Recommendations for Linen ps and Photospreads, 22 Law &

Hum. Behav. 605, 622 C108) C'the most exhaustive review to date”

suguvests that “witnesses whe are highly confident in’ their

10

Those findings do nat sapyort petiiioner’s basic asser-

tion that witness certainty is “not relevant” (Pet. 10) to

the reliability of identification evidence. Cf. Fed. R.

Evid. 401 (“relevant” evidence is evidence having any

tendency to make the existence of a material fact “more

probable” than it would be without the evidence).

Petitioner acknowledges that “some studies have

found a statistically significant correlation between wit-

ness certainty and accuracy,” but contends that “these

studies have found such a relationship only by control-

ling factors that it is impossible or wholly infeasible to

control in the real world.” Pet. 6. That is not correct.

The studies suggest only that “the correlation may be

stronger for witnesses who identify a subject during the

identification procedure than for those who determine

that the perpetrator is not present.” Ledbetter, 881 A.2d

ut 313. See Gary L. Wells & Elizabeth A. Olson, E yet.

ness Testimony, 54 Ann, Rev. Psychol. 277, 283 (2003).

And because it is only when a witness identifies a sub-

ject that the issue in this case will arise, the confidence

accuracy correlation for “witnesses who made a positive

identification” is the “appropriate index.” Siegfried

Ludwig Sporer et al., Choosing, Confidence, aud Acen-

racy: A Meta-Analysis of the Confidence-Accunracy Ke-

lation in Kyewituess Identification Studies, 118

Psychol. Bull. 315, 316 (1995).

According to petitioner, “research has shown that the

certainty of a witness ix easily manipulated by a variet)

identifications are somewhat more likely to be correct as compared to

witnesses who display littl confidence’). See also Connie Mayer, or

Process Challenges to Rgerituess [dentdication Based on Pretrral

Photographic Arvrags, VS Pace L. Rev, S15, S208) CII) lal few

studies show that confidence level is a valid predictor of identification

wecuracy”’).

1]

of factors that have nothing to do with accuracy,” such

as “confirming feedback” from law enforcement officers.

Pet. 7. Even if true, that is not a reason to adopt peti-

tioner’s categorical rule. If, in a particular case, a wit-

ness’s confidence in the identification has in fact been

“manipulated,” it might be appropriate for the district

court to give the level of certainty little or no weight

under the totality of the circumstances. But there is no

claim in this case that Lopez's confidence in his identifi-

cation was “manipulated.” Indeed, Special Agent

Matta’s testimony at the Wade hearing confirms that it

was not. See 1/27/03 Tr. 28 (“Q. * * * [D]id you do

anything to verify, confirm, dissuade him, congratulate

him on his selection? A. No, I [did] not.”); id. at 108

(“Q. * * * [Y¥Jou didn’t encourage him, reward him, do

anything to confirm his choice, you wanted it to be an act

of his own free will; fair enough? A. Yes.”).

Petitioner also relies on research showing that jurors

place “disproportionate weight on the confidence of the

witness” in deciding whether the identification of the

witness was accurate—and, at least when identification

is a central issue in the case, in deciding the ultimate

question whether the defendant is guilty. Pet. 8. It is

not clear that that is correct. As one of the articles on

which petitioner relies reports, “survey data indicate

that people believe all five criteria are important deter-

minants of identification accuracy,” and “certainty is

actually ranked as /ex* important than each of the four

other criteria.” Amy L.. Bradfield & Gary L. Wells, The

Perceived Vaiidity of Eyewituess Identification Testi-

mony: A Test of the Five Biggers Criteria, 24 Law &

Hum. Behav. 581, 591 (2000). In any event, petitioner

does not contend that trial conrts routinely place dispro-

portionate weight on the witness's confidence in making

12

the threshold determination of whether identification

evidence should he admitted, and there is no reason to

believe that they do. Certainly the district court in this

case did not. On the contrary, it appears that the court

placed the heaviest weight on Lopez’s “significant op-

portunity to view” petitioner. Pet. App. 16a, 19a.

Even if petitioner could demonstrate the merit of his

proposed rule were the issue being considered as a mat-

ter of first impression, such a showing would be insuffi-

cient here. As petitioner concedes (Pet. 18-20), adoption

of the rule he advocates would require the Court to over-

rule Biggers and Brathwaite in part, and even in consti-

tutional cases, the doctrine of stare decisis “carries such

persuasive force” that this Court has “always required

a departure from precedent to be supported by some

special justification.” Dickerson v. United States, 530

U.S. 428, 443 (2000) (internal quotation marks omitted).

Accord, e.g., Harris v. United States, 586 U.S. 545, 557

(2002) (opinion of Kennedy, J.); United States v. IBM

Corp., 517 U.S. 843, 856 (1996). Because the “psycho-

logical research” on which petitioner relies (Pet. 19)

does not unequivocally support his proposed rule, he

falls far short of demonstrating the requisite “special

justification” for overruling in part two of this Court's

precedents.

2. Nor is certiorari warranted on the ground that

there is a division of authority in the lower courts, for

there is none. While they are of course bound by this

Court's interpretation of the federal Constitution, lower

courts occasionally issue decisions holding that the em-

pirical basis for a constitutional rule adopted by this

Court has been shown to be incorrect. See, ¢.g., Roper

v. Simmons, 125 8. Ct. 1183, 1189 (2005) Gower court

held that, since this Court's decision in Stanford v. Ken-

15

tucky, 492 U.S. 361 (1989), holding that Constitution

does not bar capital punishment for juvenile offenders,

“a national consensus ha{d] developed” against that

practice) (quoting State ex rel. Simmons v. Roper, 112

S.W.3d 397, 399 (Mo, 2003) (en bane), aff'd, 543 U.S. 551

(2005)). Petitioner cites no decision in which any court

has held that, in light of the current state of scientific

knowledge (or for any other reason), the Due Process

Clause of the Fifth or Fourteenth Amendment prohibits

a trial court from considering the witness's level of cer-

tainty in deciding whether an out-of-court identification

is independently reliable, such that the out-of-court

identification may be admitted (or an in-court identifica-

tion may be made by the witness). Of the several state-

court decisions cited by petitioner (Pet. 12-16), only one,

Ramirez, 817 P.2d 774 (Utah 1991), adopted the rule

that petitioner advocates, and that decision rested on

state law, see id. at 780-781. The other decisions either

addressed the issue of instructions to the jury on identi-

fication evidence, see Ledbetter, 881 A.2d at 316-519;

Brodes v. State, 614 S.E.2d 766, 767-771 (Ga. 2005);

Commonwealth v. Santoli, 680 N.E.2d 1116, 1121 (Mass.

1997); State v. Long, 721 P.2d 483, 487-495 (Utah 1986),

or adopted, as a matter of state law, a rule of admissibil-

ity that differs from the one that this Court adopted in

Biggers and reaffirmed in Brathwaite, see State v.

Dubose, 699 N.W.2d 582 (Wis. 2005) (suggestive show-up

identification requires exclusion unless procedure was

necessary); Commonwealth v. Johnson, 650 N.E.2d 1257

(Mass. 1995) (suggestive show-up identification always

requires exclusion).

%. Review should also be denied because petitioner's

claim was not adequately presented to, and was not

passed upon by, the court of appeals. “Where issues are

14

neither raised before nor considered by the Court of

Appeals, this Court will not ordinarily consider them.”

Zobrest vy. Catalina Foothills Sch. Dist., 509 U.S.1, 8

(1993) (quoting Adickes v. S. H. Kress & Co., 398 U.S.

144, 147 n.2 (1970)). Accord, ¢.g., Pasquantino v. United

States, 125 8. Ct. 1766, 1781 n.14 (2005); Lopez v. Davis,

531 U.S. 230, 244 n.6 (2001). There is no basis for an

exception to that rule here.

In his opening brief in the court of appeals, petitioner

conceded that the district court had “properly consid-

ered the five ‘reliability’ factors set out by the Supreme

Court in Neil |v. Biggers| and Manson |v. Brathiwaite|,”

including “the level of certainty expressed by the wit-

ness.” Pet. C.A. Br. 43-44. His claim was that the dis-

trict court's “ultimate conclusion of reliability was based

on a misapplication of these factors.” /d. at 44 (empha-

sis added). In asserting that claim, petitioner “djid| not

challenge the district court's finding that, with respect

to the fourth Nei/ factor, the certainty of the identifica-

tion, Lopez expressed no uncertainty when he identified

the photo of [petitioner|.” /d. at 47. Nor did he claim

that the district court should not have considered that

factor. He merely stated that “the continuing viability

of thle] factor has been called into serious question by

the numerous reported DNA exonerations of people who

had been convicted, many of capital felonies, based on

eyewitness identifications by people who were quite cer-

tain, but were nevertheless wrong.” /bid.

It was not until he filed his reply brief that petitioner

squarely raised the claim that he raises here: that “the

five-factor test” described in Biggers and Brathwaite

“for determining reliability and admissibility of sugges-

tive out-of-court identifications” should be “modified in

light of currently-available scientific research demon-

15

strating that there is virtually no correlation between

the certainty expressed by a witness and the accuracy of

the [sic| his/her identification.” Pet. C.A. Reply Br. 12.

Perhaps because the Second Circuit ordinarily does “not

consider an argument raised for the first time in a reply

brief,” Evangelista v. Ashcroft, 359 F.3d 145, 156 n.4 (2d

Cir. 2004) (quoting United States v. Yousef, 327 F.3d 56,

115 (2d Cir.), cert. denied, 540 U.S. 933 and 993 (2003)),

cert. denied, 125 8. Ct. 1293 (2005), the court of appeals

did not consider that claim. Instead, the court ad-

dressed only the fact-bound claim that petitioner raised

in his opening brief. It explained that the district court

nad “reasonably determined that though the procedures

used in obtaining the identification of | petitioner] were

suggestive, the identification by one of his co-conspira-

tors was itself reliable,” and held that the district court

had therefore not committed “clear error” in applying

“the five-part reliability test.” Pet. App. 10a.

4. This case is also an unsuitable vehicle for deciding

the question presented because adoption of the rule peti-

tioner advocates would have no effect on the outcome.

To begin. with, there is little doubt that the identification

evidence would have been admitted even if the district

court had not considered Lopez's level of confidence. Of

the other four factors identified in Biggers and

Brathwaite, the district court determined that three

weighed in favor of admission. The court found that

Lopez's “repeated opportunities to view | pe*itioner| are

strong evidence of independent reliability” (Pet. App.

Ita); that Lopez’s “degree of attention adds somewhat

to the reliability of his identification” (id. at 17a); and

that “[t}he accuracy of Lopez's descriptice of [peti-

tioner| weighs slightly in faver of a conclusion of inde-

pendent reliability” Vd. at lsa). Only the “time lapse

16

between Lopez’s observing [petitioner] and Lopez's se-

lecting his photo from the photo array” was found by the

district court to “weigh| | against a finding of independ-

ent reliability.” /d. at 19a. The factor on which the dis-

trict court appears to have placed the greatest weight in

finding the identification reliable, moreover, was not

Lenez’s level of certainty but his “significant opportu-

nity to view [petitioner],” id. at l6a, 19a, based on

Lopez's having spent “time with [petitioner] on two con-

secutive days,” id. at 16a. There was good reason for

the district court to place substantial weight on that fac-

tor, because Lopez was not an “eyewitness” in the ordi-

nary sense, but rather was petitioner’s co-conspirator.

Even if the evidence would not have been admitted

had the district court not considered Lopez's confidence

in his identification, there is little doubt that the jury

would have reached the same verdict, because there was

substantial independent evidence of petitioner's guilt.

Both Berrios and Feliciano, who recruited the killers

and had known petitioner for some time, testified that

petitioner was involved in the murder. Gov't C.A. Br.

61. In addition, Alvarez testified that it was petitioner

who had called her apartment in an effort to lure

Casiano to the garage before he was killed, and that

Casiano had left her a voice-mail message saying that he

was going to the garage because petitioner had paged

him. /d. at 61-62. Indeed, petitioner admitted that he

had spoken with Casiano at the garage shortly before

the murder. /d. at 16, 62. Petitioner also told his girl-

friend that he would be going to jail, or would be killed,

because of what had happened to Casiano. /d. at 16.

17

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted

Par. D.CLEME’

JANUARY 2006

(S) | JAN 3.0 2006

a

| OFFICE OF THE CLERK |

No. 05-596

IN THE

Supreme Court of the United States

JOSE ANTONIO PEREZ.

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

BRIEF OF THE INNOCENCE NETWORK AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

JULIAN W. POON

Counsel of Record

ROD J. STONE

DANTEL M. FLORES

ARIANE J. SIMS

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue

Los Angeles, CA 90071-3197

(213) 229-7000

Counsel for Amicus Curiae

The Innocence Network

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE .....0ccceceeceeeeseecreeseeeeenes I

SUMMARY OF ARGUMENT .........ccccccesseeeeeeeereeeeenererees 2

I. The Biggers Test Fails to Detect Unreliable

Eyewitness Evidence and Does Not

Effectively Protect Due Process. ...........cccseeeeeees 3

A. The Biggers Factors Were Originally

Based on Assumptions About

Eyewitness Accuracy Drawn from the

Common Law, Rather Than Empirical

Data or Scientific Principles .............cccceeeeeees 3

B. Courts and Legal Scholars Have

Condemned Biggers as an Unsound

Analysis of Eyewitness Accuracy and

Have Accordingly Sought to Develop

Judicial Remedies to Safeguard Due

Sih tiistieshsinasermennepetepedbocereesvesevorssecsorees 5

1. Based on Existing Empirical Data,

State Courts Have Sought to

Eliminate the Certainty Factor from

ES Sa 6

2. Courts Have Also Used Cautionary

Instructions in an Effort to Mitigate

the Risk of Mistaken Eyewitness

Testimony Admitted Under Biggers........ 8

C. The Biggers Factors Do Not Reliably

Predict the Accuracy of Eyewitness

SID eeennnndneeuueetovenstesecserercrcevecese cers 9

1. Witness’s Level of Certainty ..............+ 10

2. Witness’s Opportunity to View the

Criminal at the Time of the Crime ......... 12

3. Witness’s Degree of Attention............... 13

4. Accuracy of the Prior Description.......... 14

D. The Biggers Test Is Not Immune from

the Taint of Suggestive Identification

Procedures

yeveupeesnnnstelioumscunsumtneneniesensinecunadie 14

Ii. The Overwhelming Majority of Wrongful

Convictions Have Been Premised on

Erroneous Eyewitness Identifications...............-.. 16

A. Exoneration Data Studies Confirm that

Eyewitness Misidentification Is the

Most Prevalent Cause of Wrongful

SO ee 16

B. The Need for Revision Is Underscored

by the Stories of Innocent Individuals

Wrongly Convicted under Biggers .............+. 17

1. Carlos Lavernia, Served Fifteen

We tesnccnsccosennnsersrnninentnennenctinanitiene 18

2. Mark Reid, Served Six Years ..............+. 18

3. Steven Toney, Served Thirteen

We iiattcwninininntinnanennaiediti 19

RE ee csnectinssncesnesncceenscsesreasssesesnereireemmnanicis 20

ili

TABLE OF AUTHORITIES

Page(s)

Cases

Atkins v. Virginia,

I a x

Brodes v. State,

614 S.E.2d 766 (Ga. 2005).................00cccee. Pe Doe 5,7

Clemons v. United States,

408 F.2d 1230 (D.C. Cir. 1968) .........0.0..0...... PD Bech 4

Coleman v. Alabama,

a 3

Cammonwealth v. Johnson,

650 N.E.2d 1257 (Mass. 1995) ..0....0.0.....ccccccceceeeeeneees 5,6

Commonwealth v. Santoli,

680 N.E.2d 1116 (Mass. 1997) ................... ueaniiaaines Feat

Commonwealth v. Yarris,

SA ARI TI oscenscseecesscectececensbccscrneres 18

Cossel v. Miller,

229 F.3d 649 (7th Cir. 2000)...0... oe. bend 15

Davis v. United States,

512 U.S. 452 (1994)....... SER ee ara No aee ae eh ciel

Foster v. California,

EE eed ee eC 3,4

Grutter v. Bollinger,

ee OF a TUITE ticithsentisscndaieninaduihininsepptinnndiindabianadteniitbaael 8

Jones v. State,

749 N.E.2d 575 (Ind. Ct. App. 2001) .o......ccccccccceceeeeeee 8

Lavernia v. Lynaugh,

845 F.2d 493 (Sth Cir. 1988). cocecccccceseeseeceeeeee 18

Manson v. Brathwaite,

432 US. 98 (1977).......... ea es 2, 3,4, 11

McMillan v. Barksdale,

823 F.2d 981 (6th Cir. 1987)........... Siecle eae

Neil v. Biggers.

I lag ee ne 2,3,4

iV

State v. Piszczek,

1993 WL 106966 (Ohio Ct. App. April 8,

Spi tde-comsniiienn ales ditubaiedidecdsdussdesaalotababebdseeinataigiaaie 17

People v. Anderson,

Be Fee ee EE, FUE trecnesovevisietertrinineectnauinaneta 4

People v. Bullock,

507 N.E.2d 44 (Ill. App. Ct. 1987) 0.0.0.0... ccccceceeeteeees 17

People v. Callace,

143 A.D.2d 1027 (N.Y. App. Div. 1988) .........0.000008. 17

People v. Chalmers,

163 A.D.2d 528 (N.Y. App. Div. 1990) .................006. 17

People v. Jenkins,

132 A.D.2d 942 (N.Y. App. Div. 1987) 00.0.0... 17

Roper v. Simmons,

S43 US. Si, 125 BS. Co TEGD CHOGGD. cccecsceccsesceseceseseseess 8

Simmons v. United States,

NE Ste HIE sctinctvevicedctenigennbesscoudevsanivamasnmnali 3,4

State v. Bauer,

Se ee SE FINO mrcrrcisnsstctsrcinnrcireencnninn 17

State v. Bromgard,

862 P.2d 1140 (Mont. 1993) .0..........cccceceeceeseeeerseeerers 17

State v. Brown,

1983 WL 6945 (Ohio Ct. App. Sept. 16,

OE ARR SINE MEPS INOS SoA Rae: Sa a et 2 Na 18

State v. Charles,

511 So. 2d 1164 (La. Ct. App. 1987)... 17

State v. Dubose,

GaP VE. WA FOR CWE: BOGE) cc secisccosccesssseserecsccsarsvees 5, 6

State v. Jean,

Se I III Gn cscodvucdbducotnscaminestcnsatiitinne 17

State v. Ledbetter,

881 A.2d 290 (Conn. 2005) .0...00....ccceceecceccereeeeees 5,6, 7,9

State v. Long,

721 P.2d 483 (Utah 1986)......... Le ANN ae chs Dae a 5, 6,9

State v. Ramirez,

ne ee cy iptesvutnarehcniscsenne otal 5, 6, 8

State v. Reid,

757 A.2d 482 (Comm. 2000) ooo... ccoocccccceceesceeveneven 18, 19

State v. Smith,

1988 WL 79080 (Ohio Ct. App. July 28,

EE a ee eee ee 18

State v. Sutherlin,

393 N.W.2d 394 (Minn. Ct. App. 1986)... 17

State v. Toney,

680 S.W.2d 268 (Mo. Ct. App. 1984) ................... ss

State v. Woodall,

385 S.E.2d 253 (W. Va. 1989)... ..ccccccceceees an

Stovall v. Denno,

er eee eee enor 3

United States v. Wade,

388 U.S. 218 (1967)... See et 2, 3,7

Watkins v. Sowders,

449 US. 341 (1981) rece Ser ee 7,11

Webb v. State,

746 P.2d 203 (Okla. Crim. App. 1987).................. ania 18

Webster v. State,

8 | Se ee a 17

Other Authorities

A. Daniel Yarmey, THE PSYCHOLOGY OF

EYEWITNESS TESTIMONY 138 (1979)... oe. 14

Alvin G. Goldstein et al., Does Fluency of Face

Description Imply Superior Face

Recognition?, 13 BULL. PSYCHONOMIC

gg 2 EEE aabaseinaiiae 14

Amy L. Bradfield & Gary L. Wells, The

Perceived Validity of Eyewitness

Identification Testimony: A Test of the Five

Biggers Criteria, 24 LAW & HUM. BEHAV.

| Nh as ete 9, 10, 12

Benjamin E. Rosenberg, Rethinking the Right to

Due Process in Connection With Pretrial

Identification Procedures: An Analysis and

a Proposal, 79 KY. LJ. 259 (1991)... ccc. 6, 10, 13

BRIAN L. CUTLER AND STEVEN D. PENROD,

MISTAKEN IDENTIFICATION: THE

EYEWITNESS, PSYCHOLOGY, AND THE LAW

ERS ee ee ae See cae 9, 10, 12

Brian L. Cutler et al., The Reliability of

Eyewitness Identification: The Role of

System and Estimator Variables, 11 LAW &

eee i

C. A. Elizabeth Luus & Gary L. Wells,

Eyewitness Identification Confidence, in

ADULT EYEWITNESS TESTIMONY (1994) ..00000000........ 10, 11

Connie Mayer, Due Process Challenges to

Eyewitness Identification Based On Pretrial

Photographic Arrays, 13 PACE L. REV. 815

Donald P. Judges, 7wo Cheers for the

of Justice's Eyewitness

Evidence: A Guide for Law Enforcement, 53

eS 6, 10, 15

ELIZABETH F. Loftus, EYEWITNESS TESTIMONY

| ae nae eee aaa 13

Frank O'Connor, “7hat's the Man”: A Sobering

Study of Eyewitness Identification and the

Polygraph, 49 St. JOHN’S L. REV. 1 (1974) ..00.000.0......... 4

Gary L. Wells & Amy L. Bradfield, “Good, You

Identified the Suspect”: Feedback to

Eyewitnesses Distorts Their Reports of the

Witnessing Experience, 83 J. APPLIED

I: ihc a 9, 15, 16

vii

Gary L. Wells & Donna M. Murray, What Can

Psychology Say Avout the Neil v. Biggers

Criteria for Judging Eyewitness Accuracy?,

68 J. APPLIED PSYCHOL. 347 (1983) ........cccccccccco0e 4,9, 14

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Identification: Psychological Research and

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POE V GE En Pe Cee e socimninteiiiisneiniaiabaememineal 9

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INTEREST OF AMICUS CURIAE*

The Innocence Network (“Network”) is an association of

thirty member organizations dedicated to providing pro bono

legal and investigative services to indigent prisoners whose

actual innocence may be established by post-conviction

evidence! The Network currently represents hundreds of

i with innocence claims in all fifty States and the

District of Columbia. The Network also seeks to prevent

future wrongful convictions by researching their causes and

pursuing legislative and administrative reform initiatives

designed to enhance the truth-seeking functions of the

criminal justice system.

The vast majority of individuals exonerated by DNA

testing were originally convicted based on eyewitness

misidentifications. The Network, therefore, has a compelling

interest in ensuring that the legal standard governing

admissibility of eyewitness identifications is revised to

reflect established limitations on eyewitness testimony.

* Amicus certifies that this brief was written by undersigned counsel

and that no counsel for a party authored any portion or made any

monetary contnbution to its preparation or submission Letters reflecting

the written consent of the parties to the filing of this brief have been

lodged with the Clerk of the Court.

| The Network's U.S. member organizations include: Arizona Justice

‘ect: California/Haweii | i 6 on W

——, - Cooley 1 Proj ae , Me a -

Georgia Innocence Project, Idaho Innocence Project, Innocence Institute

at Point Park University, The Innocence Project, Inc.; Innocence Project

Indiana, Innocence Project Midwest, Innocence Project of Minnesota,

) Proj Nord hiiatn | Proj

innocence Project New Orlcans, Medill Innocence Project, Mid Atlantic

Innocence Project; New England b.nocence Project, North Carolina

Center on Actual Innocence, Northern Arizona Justice Project, Northern

California Innocence Project, Ohio Innocence Project, Pace

Post-Conviction Project, Rocky Mountain Innocence Project, Second

Look Program, Texas Innocence Network, Texas Canter for Actual

Innocence, and Wisconsin Innocence Project.

2

SUMMARY OF ARGUMENT

This Court has long acknowledged the infirmities of

eyewitness See United States v. Wade, 388 US.

218, 228 (1967) (the “vagaries of eyewitness identification

are well-known; the annals of criminal law are rife with

instances of mistaken identification”). In Neil v. Biggers,

409 US. 188 (1972), the Court held that an eyewitness

identification made pursuant to am unnecessarily suggestive

identification procedure cuuld nonetheless be admissible on

the basis of its independent reliability. /d. at 199-200. In so

doing, the Court fashioned a five-factor “totality of the

circumstances” test for determining eyewitness reliability

that evaluates (1) the witness’s opportunity to view the

criminal at the time of the crime, (2) his or her degree of

attention, (3) the accuracy of the prior description of the

criminal, (4) the level of certainty demonstrated at the

confrontation, and (5) the length of time between the crime

and the identification. /d. Notably, however, the Biggers

factors, which this Court confirmed in Manson v. Brathwaite,

432 U.S. 98 (1977), were never grounded upon any available

scientific evidence, but rather appear to be based on

commonly held assumptions regarding eyewitness testimony.

Since Biggers, a substantial body of empirical research

has seriously undermined the test’s continued validity,

particularly the factor weighing a witness’s level of certainty,

which is paradoxically the least reliable factor and yet the

one accorded most weight by juries. Indeed, researchers and

commentators have widely condemned various Biggers

factors as unreliable predictors of eyewitness identification

accuracy. In view of this compelling scientific data, the

Court should now revise the Biggers test to enable courts to

effectively distinguish between accurate and inaccurate

eyewitness identifications. Accordingly, the Innocence

Network, as amicus curiae, respectfully requests that the

Court grant a writ of certiorari to the United States Court of

Appeals for the Second Circuit in this case.

3

1. The Biggers Test Fails to Detect Unreliable

Eyewitness Evidence and Does Not Effectively

Protect Due Process

A. The Biggers Factors Were Originally Based

on Assumptions About Eyewitness Accuracy

Drawn from the Common Law, Rather Than

Empirical Data or Scientific Principles

The Court’s jurisprudence leading up to Biggers and

Brathwaite stemmed from well-founded due process

concerns that eyewitness identifications are unreliable, and

that suggestively obtained identifications were a “major

factor contributing to the high incidence of miscarriage of

justice.” Wade, 388 U.S. at 228. Prior to Biggers, the Court

grappled with due process questions arising from eyewitness

identifications obtained from various types of suggestive

identification procedures. See, e.g., Stovall v. Denno, 388

U.S. 293 (1967), Simmons v. United States, 390 U.S. 377

(1968); Foster v. California, 394 U.S. 440 (1969), Coleman

v. Alabama, 399 U.S. 1 (1970). Biggers sought to harmonize

the Court’s decisions regarding suggestive identification

procedures by holding that “[ijt is the likelihood of

misidentification which violates a defendant’s right to due

process.” 409 US. at 198. The “central question” was

“whether under the ‘totality of the circumstances’ the

identification was reliable even though the confrontation

procedure was suggestive.” /d. at 199. The Court’s

subsequent decision in Brathwaite, likewise held that

“reliability is the linchpin in determining the admissibility of

identification testimony” and that “[t]he factors to be

considered are set out in Biggers.” 432 US. at 114.

Remarkably, in articulating the Court’s test, neither

Biggers nor Brathwaite relied on any existing empirical

evidence regarding the unreliability of eyewitness testimony.

See id. at 125-26 (“Neither Biggers nor the Court’s opinion

today points to any cor’ » empirical evidence. Studies

since Wade have onl einforced the validity of its

assessment of the dar_».s of identification testimony.”)