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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for the United States
- **Published:** January 1, 2005

## Text

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admission of the identification, in an unpublished sum-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
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I: ihc a 9, 15, 16

vii

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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.”)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0440%3A2. Public record. Not legal advice.