Amicus Curiae Brief — Perez v. United States (No. 05-596)

4

that Biggers’ witness-certainty factor does not ensure or

even correlate with the reliability of eyewitness

identifications. As a result, state courts of last resort

construing state due process guarantees have

increasingly abandoned the Biggers framework—

particularly the certainty factor—in favor of more sound

measures of reliability. Federal courts—bound to apply

Biggers’ five-factor test unti] this Court says otherwise—

have responded by dividing over the application and

implications of the Biggers’ witness-certainty factor. The

disagreement expressed by state courts and the division

within the federal courts counsel granting the writ.

A. State High Courts Applying Identical State

Constitutional Provisions Have Rejected The

Witness-Certainty Factor.

In state after state, courts of last resort presented

with the issue are discarding Biggers’ witness-certainty

factor in light of the scientific consensus concerning its

lack of relevance to accuracy. Recognizing the flaws in

the empirical basis on which the witness-certainty factor

rests, several state's high courts have rejected Biggers in

its entirety and outlawed the use of unnecessarily

suggestive identifications altogether. In Commonwealth

v. Johnson, 650 N.E.2d 1257 (Mass. 1995), the

Massachusetts Supreme Judicial Court held that the

state constitution requires the per se exclusion of

suggestive identifications, regardless of witness certainty.

Likewise, in State v. Dubose, 699 N.W.2d 582 (Wis. 2005),

the Wisconsin Supreme Court abandoned its previous

adherence to Biggers, and held that suggestive

identification procedures are inherently unreliable and

generally inadmissible. Jd. at 593-94. And in People v.

Adams, 53 N.Y.2d 241, 251-52 (N.Y. 1981), the New York

Court of Appeals adopted a per se rule excluding

suggestive out-of-court identifications.

Similarly, having first recognized that Biggers’

witness-confidence factor is “based on assumptions that

5

are flatly contradicted by well-respected and essentially

unchallenged empirical studies,” State v. Long, 721 P.2d

483, 491 (Utah 1986), the Utah Supreme Court

subsequently rejected Biggers as insufficient to guarantee

due process under the Utah Constitution. Deeming

Biggers ‘© be “scientifically unsound,” that court

fashioned a more “empirically based” test of reliability

that did not include witness certainty. State v. Ramirez,

817 P.2d 774, 780 (Utah 1991). In doing so, it specifically

rejected witness certainty “as an indicator of an

identification’s reliability.” Id. at 781; see also Long, 721

P.2d-at 490.

Most recently, in Brodes v. State, 614 S.E.2d 766, 771

(Ga. 2005), the Georgia Supreme Court specifically

rejected Biggers’ witness-certainty prong, holding that

administering a “level of certainty” instruction—

informing jurors that they may consider a witness's level

of certainty as a factor supporting “the reliability of [an]

identification”—was reversible error. That court observed

that “[iJn the 32 years since the decision in Neil v.

Biggers, the idea that a witness's certainty in his or her

identification ... reflected the witness's accuracy has been

flatly contradicted by well-respected and essentially

unchallenged empirical studies.” Jd. at 770 (internal

quotations omitted).

Other state courts, while declining to abandon

Biggers, have recognized its flawed analytical

underpinnings and have expressed dissatisfaction with its

witness-certainty prong. See, e.g., State v. Ledbetter, 881

A.2d 290, 311 (Conn. 2005) (“The uncontradicted scientific

literature ... suggests that the fourth Biggers factor is

particularly flawed because a weak correlation, at most,

exists between the level of certainty demonstrated by the

witness ... and the accuracy of that identification.”); Jones

v. State, 749 N.E.2d 575, 586 (Ind. Ct. App. 2001)

(recognizing “the growing body of scientific work which

has challenged many commonly held beliefs about

+

6

eyewitness credibility”); Rimmer v. State, 825 So.2d 304,

337 (Fla. 2002) (Pareinte, J., dissenting in part) (“Since

Neil {v. Biggers| was decided, additional social science

research, as well as actual cases, have taught us much

about the fallibility of eyewitness identification.”).

Because this Court cannot review a state court’s

interpretation of a state constitution, and because the

lower federal courts are bound by this Court’s precedents,

the Court will never be confronted with a decision

squarely rejecting Biggers. Nonetheless, widespread

repudiation of Biggers by the states is itself grounds for

revisiting a decision that has proven to be fundamentally

flawed. The federal courts should not be put in a position

in which they are required to adhere to an outmoded

judicially-crafted test while the state courts are

trumpeting the empirical baselessness of that same test.

Rather, certiorari is warranted where, as_ here,

subsequent empirical knowledge has undermined the

rationale of a decision. See e.g., Payne v. Tennessee, 501

U.S. 808 (1991) (overruling Booth v. Maryland, 482 U.S.

496 (1987) and South Carolina v. Gathers, 490 U.S. 805

(1989)); Batson v. Kentucky, 476 U.S. 79 (1986)

(overruling in part Swain v. Alabama, 380 U.S. 202

(1965)); Brown v. Board of Educ., 347 U.S. 483 (1954)

(overruling Plessy v. Ferguson, 163 U.S. 537 (1896)). The

petition thus appropriately seeks, not error correction, but

a correction in controlling law.

B. Although Bound By Precedent, Federal

Courts Have Questioned Biggers Based On

Compelling Scientific Evidence.

Federal appellate and district courts alike have

expressed dissatisfaction with the witness-certainty prong

of Biggers. These federal courts struggle to do justice

within the Biggers framework, but are ultimately bound

to follow this Court’s precedent. For example, even

though the Seventh Circuit has acknowledged that

“{djeterminations of the reliability suggested by a

7

witness’s certainty after the use of suggestive procedures

are complicated by the possibility that the certainty may

reflect the corrupting effect of the suggestive procedures,”

it has obligingly adhered to Biggers in the criminal law

context. United States ex. rel. Kosik v. Napoli, 814 F.2d

1151, 1159 (7th Cir. 1987). However, in other contexts,

the Seventh Circuit has repudiated the premise

underpinning Biggers’ witness-confidence prong. In Krist

v. Eli Lilly & Co., 897 F.2d 293, 296 (7th Cir. 1990), that

court observed that “[a]n important body of psychological

research undermines the lay intuition that confident

memories of salient experiences .. are accurate.” It

further noted that “certitude is not a reliable test of

certainty,” and that “the mere fact that we remember

something with great confidence is not a powerful

warrant for thinking it true [because] accuracy of

recollection is not highly correlated with the recollector's

confidence.” Jd. at 297 (emphasis in original).

The Seventh Circuit's skepticism towards witness

certainty and eyewitness recollection is not unique. In

Graver v. McKee, 149 Fed. Appx. 435 (6th Cir. 2005), the

court of appeals recognized that social science studies

“demonstrate that there is no correlation between the

confidence of the witness and the accuracy of the

identification,” and expressed “concerns about the

reliability of identification” made in that case. /d. at 447-

48 (emphasis added). Nonetheless, the court adhered to

the “established precedent” of Nei! v. Biggers, finding that

even in a “close case,” if a witness said he was “certain” of

his identification, the “level of certainty” factor supports

the reliability of the identification and, thus, admission of

it as evidence. Jd. at 448. In Abdur-Raheem v. Kelly, 98

F. Supp. 2d 295, 306-07 (E.D.N.Y. 2009), rev'd on other

grounds, 257 F.3d 122 (2d Cir. 2001), the court argued

that “[blased on empirical research into eyewitness

identifications” the witness-certainty factor should be

given little weight because it “assign[s] too much

predictive value to eyewitness confidence and also to

8

witnesses’ descriptions, neither of which is very predictive

of identification accuracy in scientific studies.”

Other judges have expressed similar concerns over

application of Biggers’ witness-confidence prong, all the

while adhering—as they must—to precedent. See, e.g.,

United States v. Singleton, 702 F.2d 1159, 1179 (D.C. Cir.

1983) (Wright, J., dissenting) (“[I]nnumerable authorities

have concluded that a witness’[s] degree of certainty in

making an identification generally does not measure its

reliability. Indeed a negative correlation sometimes exists

between a witness’[s] confidence and the accuracy of the

identification.”) (emphasis in original); Ocasio v. Artuz,

No. 98-CV-7925 (JG), 2002 WL 1159892. *10 n.7

(E.D.N.Y. May 24, 2002) (“[I]n truth, social science has

convincingly revealed that there is little or no correlation

between an eyewitness’[s] confidence in an identification

and the accuracy of the _ identification.”) (citing

psychological research); Smith v. Smith, No. 02 Civ. 7308

(WHP) (JCF) 2003 WL 22290984, *11-12 (S.D.N.Y. Sept.

29, 2003) (“Studies have indicated that the empirical

evidence does not support the idea that evewitness

confidence is a valid measure of eyewitness accuracy

under ecologically valid conditions. [One reason for this

phenomenon] is the extreme malleability of eyewitness

confidence.”) (internal citation and quotation marks

omitted).

In this case, Petitioner Perez requested that the

Second Circuit reject Biggers’ witness-certainty factor in

light of the academic consensus that there is little, if any,

correlation between the certainty expressed by a witness

and the accuracy of an identification. At oral argument,

the Second Circuit agreed that reliability of Biggers’

witness-certainty factor presented an interesting question

and lamented the fact that jurors were typically denied

information on how frequently firm identifications turn

out to be false. It noted, however, that it was bound by

9

this Court’s precedent and had no authority to overrule

Biggers or modify its five-factor test.

These cases demonstrate the discontent in the lower

federal courts and the pressing need for this Court to step

in and revisit its own precedent.

C. Federal Courts Are Divided Over The

Integrally Related Issue Of Expert Testimony

Concerning Eye-Witness Reliability.

Biggers not only established an unscientific test that

federal courts must apply with willful blindness, but has

led some courts to exclude expert evidence challenging the

reliability of eyewitness identifications. The circuits

disagree over whether and in what circumstarces Biggers

permits such expert testimony, with many often excluding

such evidence precisely because it challenges reliance on a

witness's certainty regarding his identification. Thus, the

lower courts are divided over use of Biggers' witness-

certainty factor to exclude what is empirically sound

evidence about eyewitness identifications.

For example, in United States v. Lumpkin, 192 F.3d

280, 289 (2d Cir. 1999), the Second Circuit excluded a

“plainly qualifie{d] expert” from testifying about

admittedly scientifically rehable evidence. Although the

district court certified the defendant’s expert and

recognized the scientific reliability of the proffered

testimony, it nonetheless refused to allow testimony on

the accuracy of witness confidence because it might

confuse or mislead the jury. See id. at 288-89. The

Second Circuit affirmed. Jd. Likewise, in United States v.

Smith, 156 F.3d 1046, 1052-53 (10th Cir. 1998), the

district court refused to allow, and the Tenth Circuit

refused to require, expert testimony regarding eyewitness

identifications. In United States v. Holloway, 971 F.2d

675, 679 (11th Cir. 1992), the Eleventh Circuit found

defendants’ argument that the trial court abused its

discretion by refusing to admit an expert in eyewitness

identification entirely “without merit.” Other courts have

10

reached similar conclusions. See United States v. Rincon,

28 F.3d 921, 926 (9th Cir. 1994) (upholding the district

court’s exclusion of expert eyewitness identification

testimony); United States v. Moore, 786 F.2d 1308, 1312

(5th Cir. 1986) (same).

In their effort to apply Biggers faithfully, these courts

have missed the fundamental concern over the admission

of suspect eyewitness identifications. Simply put, jurors

routinely overestimate the value of eyewitness confidence.

As the Third Circuit has observed, the fact that

“witnesses ofttimes profess considerable confidence in

erroneous identifications is fairly counterintuitive.”

United States v. Stevens, 935 F.2d 1380, 1400 (3d Cir.

1991). Indeed, “perhaps it is precisely because jurors do

not appreciate the fallibility of eyewitness testimony that

they give such testimony great weight.” Ramirez, 817

P.2d at 780-81 (internal quotation omitted); see also

Hager v. United States, 856 A.2d 1143, 1147, 1149 (D.C.

2004) (“[I]t cannot be said that psychological studies

regarding the accuracy of an identification are within the

ken of the typical juror.”).

Recognizing the need for expert testimony on the

relationship between eyewitness confidence and accuracy,

at least one court of appeals has permitted such expert

evidence. Stevens, 935 F.2d at 1400-01 (reversing

exclusion of expert testimony on the accuracy of witness

confidence). Despite finding that identification evidence

admissible under Biggers because of witness confidence,

see id. at 1391, the Third Circuit held that the defendant

was entitled to introduce expert evidence challenging the

correlation between ‘confidence and accuracy, see id. at

1400-01. Other courts have reached similar conclusions,

albeit more narrowly. In United States v. Harris, 995

¥.2d 532 (4th Cir. 1993), the defendant proffered expert

testimony to show that post-identification discussions

among witnesses could have strengthened the confidence

in their identifications. The Fourth Circuit held that in

11

certain, limited circumstances, expert testimony on

eyewitness confidence could be admissible. See id. at 535

(“The narrow circumstances held sufficient to support the

introduction of expert testimony have varied but have

included such problems as cross-racial identification,

identification after a long delay, identification after

observation under stress, psychological phenomena as the

feedback factor and unconscious transference.”).

The unwarranted extension of Biggers to exclude

admittedly scientific testimony by acknowledged experts

is doubly troubling in that it not only permits the

admission of questionable identification evidence, but

then uses the rationale behind that admission to exclude

a defendant's reliable scientific evidence. Ironically, this

Court has itself acknowledged that the suggestive

identification techniques typically at issue in a Biggers

analysis may increase witness certainty while inherently

diminishing reliability—yet many lower courts have

effectively deprived the jury of that knowledge in the

name of precedent. See Manson v. Brathwaite, 432 U.S.

98, 11-12 (1977) (explaining that suggestive

identification techniques are themselves highly

influential on a witness); Simmons v. United States, 390

U.S. 377, 383-84 (1968) (holding that a witness “is apt tu

retain in his memory the image of the [misidentified]

photograph rather than of the person actually seen”); see

also Napoli, 814 F.2d at 1159 (“Determinations of the

reliability suggested by a witness's certainty ... are

complicated by the possibility that the certainty may

reflect the corrupting effect of the suggestive

procedures.”); Dubose, 699 N.W.2d at 592 (“Because a

witness can be influenced by the suggestive procedure

itself, a court cannot know exactly how reliable the

identification would have been without’ the

suggestiveness.”).

The fact that the lower federal courts are split on the

implications of Biggers is further reason for this Court to

12

grant the writ. Rather than allow the lower courts to

continue to divide over the admissibility of the science

that contradicts the Biggers’ witness-certainty factor, this

Court should squarely address the empirical evidence and

revisit the core issue of reliability in admission of

eyewitness identifications.

Il. PRINCIPLES OF STARE DECISIS SUPPORT

RECONSIDERATION OF BIGGERS’ WITNESS-

CERTAINTY PRONG.

This Court's jurisprudence on stare Cecisis weighs

strongly in favor of revisiting Biggers’ witness-certainty

factor. When the “necessity and propriety” of overruling a

prior decision has been established, the Court has not

hesitated to act. Ring v. Arizona, 536 U.S. 584, 608

(2002) (internal quotation omitted). Indeed, “[wjhen

governing decisions are unworkable or are badly

reasoned, ‘this Court has never felt constrained to follow

precedent.” Payne, 501 U.S. at 828 (quoting Smith v.

Allwright, 321 U.S. 649, 665 (1944)). All four of the

factors this Court weighs when reexamining a prior

precedent—workability, reliance, subsequent

development of the law, and whether changed facts have

“robbed the old rule of significant application or

justification,” Planned Parenthood v. Casey, 505 U.S. 833,

855 (1992)—suggest that this Court should reconsider

and reject the witness-certainty prong of Neil v. Biggers.

A. Scientific Research And Subsequent

Developments In the Law Have Robbed The

Witness-Confidence Factor Of “Significant

Application Or Justification.”

The touchtone of Biggers is reliability. The problem

with the witness-certainty prong of Biggers, however, is

the ensuing scientific consensus that witness certainty

has nothing to do with reliability. Empirical evidence has

established beyond reasonable dispute that the extent to

which a witness is certain of an identification has, at best,

a weak correlation to the accuracy of that identification

13

and, at worst, no correlation at all, or even a negative

correlation. See Pet. 4-12. A number of factors other than

accuracy often more powerfully influence the certainty of

a witness's memory including: the violence of the event,

the presence of a weapon, and expectations based on

cultural biases and past experiences. See Elizabeth

Loftus, Eyewitness Testimony 31-51 (1979). Studies also

show that witness-certainty is easily manipulated and

often affected by post-identification events that have

nothing to do with a witness's memory. See, e.g., 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

(2002). At the same time, research shows that fact-

finders place a disproportionate weight on the confidence

of the witness in their reliability analysis. As one study

explained: “Jurors appear to overestimate the accuracy of

identifications, fail to differentiate accurate from

inaccurate eyewitnesses—because they rely so heavily on

witness confidence, which is relatively nondiagnostic—

and are generally insensitive to other factors that

influence identification accuracy.” Wells,

Recommendations for Lineups and Photo Spreads, supra,

at 624; see also Ramirez, 817 P.2d at 780 (noting the

“common knowledge that people do possess [regarding

eyewitness accuracy] often runs contrary to documented

research findings”).

In short, the empirical foundation upon which the

witness-confidence prong of the Biggers decision was built

is no longer grounded in science (if, indeed, it ever was).

When the underlying empirical basis for a decision is so

clearly called into question, stare decisis does not bar its

reconsideration. Indeed, “the notion that an important

constitutional decision with plainly inadequate rational

support must be left in place for the sole reason that it

once attracted five votes” is unacceptable. Payne, 501

U.S. at 834 (Scalia, J., concurring) (emphasis modified).

14

This is not the first case where the Court has been

asked to update legal principles in accordance with

empirical understanding. In Payne, for example, this

Court granted certiorari specifically “to reconsider [its]

holdings in Booth and Gathers that the Eighth

Amendment prohibits a capital sentencing jury from

considering ‘victim impact’ evidence.” 501 U.S. at 817. In

overruling those prior decisions, the Court reasoned that

“Booth and Gathers were based on two premises” that had

subsequently proven faulty. Jd. at 819. Likewise, in this

Court’s landmark decision in Brown v. Board of

Education, the Court found that “[w]hatever may have

been the extent of psychological knowledge at the time of

Plessy v. Ferguson,” it had been supplanted by “modern

authority.” 347 U.S. at 494. Accordingly, the Court

rejected Plessy and its faulty premise. Jd. Where a

previous holding is “wrong” as an empirical matter, that

decision should be reconsidered and corrected. See Payne,

501 U.S. at 825; Brown, 347 U.S. at 494-95. So too here.

B. Revisiting The Witness-Confidence Factor

Would Not Impose Any Special Hardship

Because Reliance Interests Are Not At Stake.

Revisiting any of the Biggers factors will not impose

any “special hardship” based on reliance. Casey, 505 U.S.

at 854. Although “[cjonsiderations in favor of stare decisis

are at their acme in cases involving property and contract

rights, where reliance interests are involved, the opposite

is true in cases such as the present one involving

procedural and evidentiary rules.” Payne, 501 U.S. at

828. So too here. As this Court noted in Payne,

reconsideration and reexamination of old precedent is of

particular importance where that precedent may

incorrectly exclude evidence thus “prevent{ing] the jury

from having before it all the information necessary to

determine the proper punishment.” /d. at 825. Obviously

the government has no reliance interest in seeing

15

defendants convicted on the basis of unreliable eyewitness

evidence.

C. The Witness-Confidence Prong Is Not

Workable In Any Meaningful Sense.

Although it is true that witness “certainty” can be

ascertained fairly easily—by simply asking a witness—

this factor is only superficially workable. Workability

requires more than mere ease of application; it requires

that a factor actually “work” by serving as an accurate

proxy. But witness confidence is no predictor of accuracy.

Decisions that cannot be squared with modern

scientific knowledge and unquestioned empirical evidence

diminish public confidence in our legal system. Indeed, a

“decision contrary to the public sense of justice

operates, so far as it is known, to diminish respect for the

courts and for law itself.” Payne, 501 U.S. at 834 (Scalia,

J., concurring) (internal quotation omitted). Here,

continued application of Biggers’ witness-certainty

factor—supported by nothing more than judicial fiat—

would amount to “stunning ipse dixift” that certainty is

relevant to accuracy when, in fact, it is not. Jd. Little

could “conflict{]” more “with a public sense of justice.” Jd.

I1L.THE PERVASIVE APPLICATION OF BIGGERS’

WITNESS-CERTAINTY FACTOR DEMANDS

REVIEW.

The role of the Biggers factors in admitting otherwise

inadmissible eyewitness testimony is not a matter of

minor academic interest. Trial courts in the state and

federal systems rely on Biggers almost daily to admit or

exclude evidence. Suffice it to say that even a cursory

review of a legal database such as Westlaw or Lexis-Nexis

reveals thousands of citations of Biggers.

No issue in criminal law today is of more pressing

importance in terms of preventing wrongful convictions.

Eyewitness misidentification is now the single greatest

source of wrongful convictions in the United States and

16

responsible for more wrongful convictions than all other

causes combined. See Wells, Recommendations for

Lineups and Photospreads, supra, at 6. Indeed, a Justice

Department survey revealed that 85% of erroneous

convictions occurred primarily because the defendant had

been misidentified by a witness. National Institute of

Justice, Convicted by Juries, Exonerated by Science: Case

Studies in the Use of DNA Evidence to Establish

Innocence After Trial, DOJ Pub. No. NCJ 161258, 16-17

ex.3 (1996). In that study, the authors identified and

reviewed twenty-eight cases where convicted defendants

were exonerated by DNA evidence and concluded that

“{iJn the majority of the cases, given the absence of DNA

evidence at the trial, eyewitness testimony was the most

compelling evidence.” Jd. at 24.

That trial courts are called upon to apply the witness

certainty factor on an almost daily basis is especially

troubling for three reasons. First, a Biggers analysis only

occurs after the trial court has determined that a witness

identification would otherwise be constitutionally

inadmissible. Only where an identification is tainted—

because of an improper line-up, show-up, photo array, or

other impermissibly suggestive procedure—does a trial

court conduct a second-tier reliability analysis. To satisfy

the second inquiry, the court determines whether the

identification is reliable independent of the unduly

suggestive identification procedure. The use of the

certainty factor in this second-tier analysis is troubling

because that factor has been shown—beyond reasonable

dispute—to be uncorrelated to accuracy. Second, as noted

above, the use of the witness certainty factor in this

second-tier analysis is even more disturbing because a

suggestive identification technique may itself increase

witness certainty. See supra at 11. Third, even though

research has shown that witness certainty bears little, if

any, relation to the accuracy of an identification, courts

often refuse to look behind the words of a witness who

says that he or she is “certain.” Many courts require

17

nothing more than superficial certainty. See, e.g., Napoli,

814 F.2d at 1160.

A few real-world examples highlight’ the

perniciousness of the certainty factor. Take, for example,

United States v. Smith, 156 F.3d 1046. In that case, the

pre-trial identification procedures were unquestionably

suggestive. The photo array was too limited because it

contained only four or five photos (six is considered small

enough to weigh heavily against admissibility) and the

manner of presentation was rife with errors: names were

on the photographs; the agent in charge told witnesses

that they had picked the correct photo; each photo was

signed and dated by each witness—so that each

subsequent witness saw the signatures of his or her co-

employees on the defendant's photo; and one witness was

shown a mug shot of the defendant and told “off the

record” that the defendant was the suspect. Jd. at 1050-

51. One witness was at first unable to identify the

suspect. It was only after the agent left the witness alone

with the loose photos, one of which had been signed and

dated by his co-workers, that the witness identified the

defendant. Jd. At trial, however, that witness testified

that he “was real, real sure” of his identification. Jd. at

1052. Yet, even in these circumstances, the trial court

found this self-professed “certairity” sufficient and the

Tenth Circuit affirmed; the certainty factor of Neil v.

Biggers thus supported the admissibility of an

unquestionably unreliable pre-trial identification. /d.

In Grayer v. McKee, only one witness was able to link

the defendant to a carjacking. See 149 Fed. Appx. at 438-

39. After an indisputably suggestive identification, the

court reviewed the Biggers factors and found the

identification admissible. The Sixth Circuit affirmed. It

found that the witness “did not have a good opportunity to

view the carjacker” because the witness had an impeded

view and only a “short period” to observe the defendant.

See id. at 445-46. Moreover, according to the court, the

18

witness has been somewhat “distracted,” id. at 446; her

description was “implausible,” id. at 445, and at “least

partially inaccurate,” id at 447. Nonetheless, the Sixth

Circuit concluded that the witness's identification

“exhibited a high level of certainty, which under

established pin supports the reliability of her

identifications.” Jd. at 448 (emphasis added).

In this case, after the eyewitness—himself a

defendant cooperating with the government—indicated

that a person with “dark skin” had paid for a murder-for-

hire, the witness was shown a photo array of eight

individuals. Pet. 2. Only one of the subjects—Petitioner

Jose Perez—had dark skin. Jd. The district court relied

on the eyewitness’s certainty of his out-of-court

identification and the Second Circuit affirmed. As courts

are called on to apply Biggers every day, such stories are

legion. See Napoli, 814 F.2d at 1160 (holding that the

failure of witnesses to pick the defendant out of a line-up

and photoarray did not necessarily “or even normally,

make the later identification less certain”); cf. Brodes, 614

S.E.2d at 768 (rejecting application of Biggers while

noting that a witness who was unable to give the police

any physical characteristics of the perpetrator later

testified that he was “absolutely certain” and “dead

certain” of his identification).

+ * *

When a constitutional decision leaves our courts in a

position of willful blindness to evolving knowledge it

should be corrected. Here, the Court confronts “a wrongly

decided, unworkable precedent calling for some further

action” and should not “compound the original error” by

ignoring it, but should directly confront it. Payne, 501

U.S. at 842-43 (Kennedy, J., concurring). Following this

course here “has itself the support not only of precedent

but of practical sense as well.” Id. at 844. Amicus curiae

NACDL therefore respectfully requests that the Court

19

grant certiorari to reconsider and overrule Neil v. Biggers

to the extent that it is inconsistent with the core

principles of this Court’s ider.tification jurisprudence.

CONCLUSION

For the foregoing reasons, this Court_should grant the

petition for writ of certiorari.

Respectfully submitted,

Pamela Harris John C. O’Quinn

Co-Chair, Amicus Committee Counsel of Record

NATIONAL ASSOCIATION OF Erin E. Morrow

CRIMINAL DEFENSE LAWYERS KIRKLAND & ELLIS LLP

1625 Eye Street, N.W., 10th Fl. 655 15th Street, N.W.

Washington, DC 20006 Washington, DC 20005

(202) 383-5386 (202) 879-5000

Counsel for Amicus Curiae NACDL

January 30, 2006

(=/ | FEB 14205

OFFICE OF THE CLERK |

No. 05-596 | SUPREME COURT. U.S. |

In the Supreme Court of the Gnited States

JOSE ANTONIO PEREZ,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Second Circuit

REPLY BRIEF FOR THE PETITIONER

DAVID M. GOSSETT ANDREW H. SCHAPIRO

Mayer, Brown, Rove & Counsel of Record

Maw LLP Mayer, Brown, Rowe &

1909 K Street, NW Maw LLP

Washington, DC 20006 1675 Broadway

DIANE POLAN New York, NY 10019

Law Offices of Diane Polan, (212) 506-2500

LLO CHRISTOPHER MONSOUR

129 Church Street Mayer, Brown, Rowe &

Suite 802 Maw LLP

New Haven, CT 06510 71 S. Wacker Dr.

Chicago, IL 60606

Counsel for Petitioner

ORE REO TEIN NE OI Ge SR MO ARETE AEA A cE A aR Rete

Wi. SOn-EPES PRINTING Co., INC. — (202) 789-0096 -— WaswinGTOoN, D.C. 20001

TABLE OF CONTENTS

Page

Ee ii

REPLY BRIEF FOR THE PETITIONER ......00..0.....0..000000.

l. Biggers’s Witness-Ceriainty Test Is Unsound. ................ 2

ll. The Fact That No Court Has Expressly Refused

To Follow Biggers In No Way Undermines The

ae 4

Il. Petitioner's Claim Was Adequately Presented

EE ee 5

IV. The Government's Speculation That The District

Court Might Have Admitted The Eyewitness

Identification Evidence Even Without Relying On

The Witness Certainty Factor Is Unsupported And

Se Fe UE BRDU ED Wc ceccccceceseressescsesccseescqnesnececererert 7

V. The Admission Of The Eyewitness Identification

Evidence In This Case Was Not Harmless Error. ............ 9

IETITTITTIIT iaciindisate chstnensbestentdsedptinceovessenosesusesesevesseecesseet 10

(1)

TABLE OF AUTHORITIES

Page(s)

CASES

Agostini v. Felton, S21 U.S. 203 (1997) ......cccccccceeeeeeecseeeenees 7

Brodes v. States, 614 $.E.2d 766 (Ga. 2005) ......ccccccccecceeeeeees 5

Chapman v. California, 386 U.S. 18 (1967) ........cccccccccceeceeee 9

Commonwealth v. Cruz, 839 N.E.2d 324

GEER, Fee certscecnctninatictipimaianticinnrpetenemn 2

Commonwealth v. Johnson, 650 N.E.2d 1257

GEBRGR, FPS Rccsepnctctensemenistersenmestiterinnimsenmenmnacianss 4

Neder v. United States, S27 U.S.1 (V999) ....cccccccccecceeeeeeeeeeees 9

Neil v. Biggers, 409 U.S. 188 (1972) ...cccccccccceceevereerenees passim

State v. Dubose, 699 N.W.2d 582 (Wis. 2005) .00000.cccccccceeeee 4

State v. Ledbetter, 881 A.2d 290 (Conn, 2005) .......ccccccceeeeees 5

State v. Ramirez, 817 P.2d 774 (Utah 1991) 00 ccceeecees 4

United States v. Logan, 419 F.3d 172

CE CR, GSD crrsestrenemnnsinsemsninmnennentiiniieetinies 7

United States v. Wade, 388 U.S. 218 (1967) ........ccccccccccceceeees 9

MISCELLANEOUS

ELIZABETH LOFTUS, EYEWITNESS TESTIMONY

( FRED enessssssnsessestnenisteretainenanimemennmamtecian 9

Connie Mayer, Due Process Challenges To

Evewitness Identifu won Based On Pretrial Pho-

tographic Arrays, 13 PACE L. REV. 815 (1994) 0. 3

Gary L. Wells & Elizabeth A. Olson, Eyewitness

Testimony, 54 ANNU. REV. PSYCHOL. 277 (2003),

available at hip://www psychology .iastate .edu/-

faculty/gwells/annual_ review _2003 pdf ...........cccccccceeeeeees 3

REPLY BRIEF FOR THE PETITIONER

Reasonable people might disagree about whether or ut,

der what circumstances this Court should promulgate bind-

ing, multi-factor tests, such as the one at issue here. But it

ought to be beyond dispute that if and when this Court does

so, the test should clearly accomplish its intended purpose.

Concomitantly, lower courts should not be required to persist

in employing a test whose empirical basis has, with the pas-

sage of time, been shown to be of dubious validity.

The government's main argument for retaining the wit-

ness-certainty test from Neil v. Biggers, 409 U.S. 188

(1972)—beyond a few “vehicle” contentions which, as we

show below, are entirely without merit—is that a handful of

studies exist that run counter to the prevailin., view that the

certainty factor is not an appropriate measure of an identifi-

cation’s reliability. The government's approach in essence

establishes a presumption that would keep in place virtually

indefinitely a standard that has long since been discredited by

the great weight of authority.

The government's suggestion that the existence of a few

outlying studies warrants retention of the witness-certainty

factor should be rejected. Instead, the witness-certainty factor

should be removed from the list of mandatory criteria that

lower courts must consider when assessing the reliability of

suggestive identifications.

The importance of the issue could not be greater. As the

Innocence Network notes in its amicus brief in support of

certiorari (at 16), mistaken identifications played a part in

over 75% of known convictions for which the individual was

later exonerated by DNA evidence. The Biggers witness-

certainty factor is scientifically unsound, has been widely re-

jected, and leads to the conviction of innocent defendants.

The continued admissibility of unreliable eyewitness evi-

2

dence undermines the integrity of the criminal justice system

and subverts the twin goals of law enforcement: convicting

the guilty and protecting the innocent. The petition should be

granted.

|. Biggers’s Witness-Certainty Test ls Unsound.

The intuitive notion that courts should be more willing to

allow into evidence an eyewitness identification when the

witness is confident as to that identification is unsound, The

government's counterarguments (Br. in Opp, 8-12) are

largely based on a misinterpretation of our argument.

We do not argue that there is “*no’ relationship” between

witness certainty and accuracy of identification (Br. in Opp.

9 (quoting Commonwealth v. Cruz, 839 N.E.2d 324, 331

(Mass. 2005) (emphasis added)). As we acknowledge in the

petition (at 6-7), some research shows that there may be a

slight relationship between the two, such that a witness who

is more certain as to an identification is somewhat more

likely to be accurate in that identification, Other research has

found there to be no correlation or has even found there to be

a negative correlation. See Pet. 6. This variation alone ts a

sufficient basis for granting the Petition and removing the

witness-certainty factor from Biggers. Lower courts should

not be required to apply a standard that even the government

would have to concede is not broadly and consistently

viewed by the experts as reliable.

This is quite unlike a situation in which a /egal question

is subject to differing answers and thus amenable to further

“percolation” in the lower courts. Here it is plain that, at a

minimum, the witness-certainty factor is of dubious scientific

validity. In these circumstances there is no justification for

continuing to require lower courts to apply it.

Moreover, although it would be impractical (and proba-

bly unwise, from the standpoint of institutional competence)

for petitioner or the government to ask this Court to under-

take an independent assessment of the underlying science,

3

the evidence to which the government points is weak. For

example, while the Wells and Olson article on which the

government heavily relies notes that a meta-analysis by

Sporer found a correlation between certainty and accuracy, it

comments that it is “unclear” whether the result of this

“meta-analysis of experiments can be directly applied to ac-

tual cases in which there are other influences that inflate the

certainty of eyewitnesses.” See Gary L. Wells & Elizabeth A.

Olson, Eyewitness Testimony, 54 ANNU. Rev. PSYCHOL. 277,

284 (2003), available at hitp://www.psychology .iastate.edu/-

faculty/gwells/annual_review_2003.pdf. And the sentence

from the Mayer article quoted in part by the government (at

9-10 n.*) actually states in full that “[a] few studies show

that confidence level is a valid predictor of identification ac-

curacy, while many others demonstrate that there is no corre-

lation between certainty and reliability of the identification.”

Connie Mayer, Due Process Challenges To Eyewitness Iden-

tification Based On Pretrial Photographic Arrays, 13 PACE

L. Rev. 815, 852-53 (1994) (emphasis added).

The simple fact is that, even if there did turn out to be

some small correlation between certainty and accuracy, it

is—on the government's own studies—sufficiently weak that

it is likely to be misleading in a wide range of cases. Where

clse do we systematically draw judges’ and jurors’ attention

to indicia that even at best have error rates of 30%? And

where clse do we draw attention to such a problematic indi-

cator without providing the jury information about just how

problematic an indicator it is?

Requiring the certainty factor to be considered leads to

far too many “false positive” results, in which juries give ex-

cessive credence to a confident but inaccurate identification.

It makes no sense \o continue dong so. This Court should re-

visit Biggers and excise this scientifically and constitution-

ally problematic factor from the admissibility analysis.

4

Il. The Fact That No Court Has Expressly Refused To

Follow Biggers In No Way Undermines The Case For

Certiorari.

The government argues (Br. in Opp. 12-13) that certio-

rari is unwarranted because there is no division of authority

in the lower courts. That is a red herring. As we explained in

our petition, there can be no circuit split or other express di-

vision among the lower courts in this situation. As the gov-

ernment recognizes (id. at 12), the lower courts cannot

overturn Biggers, and cannot ignore this Court's holding in

that case that witness certainty must be considered in decid-

ing whether the admission of evidence violates the federal

Due Process Clause.

It would make no sense for this Court to wait in vain for

the lower courts to engage in lawless insurrection before

granting review. And in fact state courts and lower federal

courts have held that the empirical premise on which Biggers

rested—the notion that witness certainty is substantially cor-

relaged with accuracy—has no basis. See Pet. 12-16.

While avoiding direct conflict with Biggers, as they must,

state and federal courts alike have made plain their lack of

confidence in the decision. Many of the state courts that have

rejected the Biggers rule as a matier of state constitutional

law have done so under general principles of due process

contained in state constitutions. See Pet. 13-15 (discussing

the holdings of State v. Ramirez, 817 P.2d 774, 780-78)

(Utah 1991) (holding Bigyers test is insufficient guarantee of

due process under the Utah Consiitution and adopting a

“more empirically based” test); Commonwealth v. Johnson,

650 N.E.2d 1257, 1260-1261 (Mass. 1995) (state constitu-

tion requires per se exclusion of unnecessarily suggestive

identifications); State v. Dubose, 699 N.W.d 582, 593-596

(Wis. 2005) (adopting a per se exclusion of unnecessarily

suggestive line-ups unless the procedure was necessary under

the totality of the circumstances)). Other state and federal

5

courts that have addressed the witness-certainty factor in con-

texts other than pre-trial admissibility hearings—and thus in

instances in which Biggers is not controlling—have also

been extremely critical of the witness-certainty factor. '

These courts have all recognized Biggers’ shortcomings.

But only this Court can reconsider Biggers as a matter of

federal constitutional law. There is no reason to wait any

longer to do so.

Ill. Petitioner’s Claim Was Adequately Presented Below.

The government argues (Br. in Opp. 13-15) that certio-

rari should be denied because petitioner's challenge to Big-

gers was not adequately presented to or preserved in the

court of appeals. That assertion is flatly incorrect. Petitioner's

opening brief in that court explicitly raised the issue, arguing

that

the continuing viability of [the witness-

identification] factor has been called into scrious

question by the numerous reported DNA exonera-

tions of people who had been convicted, many of

capital felonies, based on eyewitness identifications

by people who were quite certain, but were nonethe-

less wrong.

2d Cir. Br. 47. The argument was reiterated in petitioner's

reply brief in that court, which explained that the government

' See, e.e.. Brodes v. States, 614 $.E.2d 766, 771 (Ga. 2005)

(holding that trial courts should not instruct juries to consider the

witness's level of certainty “when instructing them on the factors

that may be considered in deciding the reliability of |an| identifica-

tion”); State v. Ledbetter, 881 A.2d 290, 311 (Conn, 2005) (criti-

cizing the witness certainty factor as “particularly flawed because a

weak correlation, at most, exists between the level of certainty

demonstrated by the witness * * * and the accuracy of that identi-

fication). See also Pet. 14-16.

6

had failed to respond to the claim that the certainty factor

was no longer viable and should be rejected “in light of cur-

rently-available scientific research demonstrating that there is

virtually no correlation between the certainty expressed by a

witness and the accuracy of the [sic] his/her identification.”

2d Cir. Reply Br. 12.

In fact, at oral argument in the Second Circuit, both par-

ties argued about the viability of the certainty factor. The

government did not claim that petitioner had waived the is-

suc. Instead, it asserted that petitioner had raised “an interest-

ing argument, [but] really not an argument that can be made

here. ** * Ultimately what defense counsel is asking [the

Second Circuit] to do is to overrule Neil v. Biggers, which,

obviously, is something that would put [that] court in diffi-

cult straits.”

Judge Calabresi, too, specifically noted that this issue

was presented by petitioner's appeal but was not one on

which the Second Circuit could grant relief. Defense counsec!

argued that “certainty has no relation to accuracy and | don’t

think the Court can ignore the scientific evidence that's now

available.” In response, Judge Calabresi asked, “But can we

bring Biggers into question, or is that something that only the

Supreme Court can do?” A member of the panel appeared to

agree that the certainty factor is problematic, noting that it is

“interesting that it isn't generally allowed to let a jury know

just how frequently firm identifications turn out to be false.”

And Judge Calabresi went on to note that, while trial courts

might be able to scrutinize Biggers presentations with care,

’

«

The Second Circuit does not transcribe oral arguments, but au-

diotapes are available from that court. After consulting with the

Supreme Court clerk's office, in this brief we quote from our in-

formal transcript of relevant portions of the oral argument. How-

ever, we would be glad to have the oral argument formally

transcribed in its entirety were the Court to request it.

7

and “the Supreme Court could change the rule * * * arguably

the one court that can do very little about that is the court

that’s in the middle”—the court of appeals.

Thus, the briefs and argument below clearly addressed

the claim presented in the petition, and in any event the gov-

ernment has waived any objection by arguing the issue below

without suggesting that it was not properly raised. The Sec-

ond Circuit's opinion is merely a straightforward application

of Biegers, which—as the Second Circuit itself noted at oral

argument—can be corrected only by this Court.’

IV. The Government's Speculation That The District

Court Might Have Admitted The Eyewitness Identi-

fication Evidence Even Without Relying On The Wit-

ness Certainty Factor Is Unsupported And No Cause

To Deny Review.

The government also contends that this case is an im-

proper vehicle for considering the question presented be-

Cause, it asserts, there is “little doubt” that the district court

would have admitted the identification evidence even if that

court had not considered the witness's certainty in his identi-

fication. See Br. in Opp. 15. That claim should be rejected,

for two reasons.

First, this ts sheer speculation on the part of the govern

ment. Neither the government nor this Court can know how

It ts unsurprising that the Second Circun did not specifically

discuss the viability of the certaimty factor i its summary order,

becuuse that court is, of course, “well aware of the Supreme

Court's admonition that if a Supreme Coun precedent has direct

application m a case before us, but rests on reasons [subsequently

eroded), [the lower court] should follow the directly controlling

case and leave to the Supreme Court the prerogative of overruling

its own decisions.” United Srates v. Logan, 419 F.4d 172, 180 RI

(2d Cir. 2005) (quoting Agostini v. Felton, S21 US. 203, 237

(1997) Gnternal quotation marks omitted ))

8

the district court would have weighed the remaining factors

in assessing this concededly suggestive identification had it

not been able to consider the witness's certainty in deciding

whether to admit his testimony.’ Thus, the appropriate course

of action is for this Court to grant review to determine

whether that factor should be considered at all, leaving it to

the lower court, if necessary, to reweigh the various factors

relevant to admissibility affer this Court's review.

Second, the government's speculation that the witness-

certainty factor might not have affected the admissibility of

the eyewitness testimony in this case could be made in every

case in which witness certainty is at issue. Thus, given the

frequency with which cyewitness testimony is critical in

criminal cases (see NACDL Amicus Br. 15-19; Innocence

The district court found that the huge, five-year lapse between

the crime and the unconstitutionally suggestive identification pro-

cedure was “counterbalance|d|" by the other four Biggers factors,

including the witness certainty factor. Pet. App. 19a. In particular,

the court found that Lopez had a “significant opportunity” to view

petitioner (id. at 16a), that his degree of attention added “some-

whai to the retiability of his identification” (id. at 17a), that the ac-

curacy of his description weighed “slightly in favor” of reliability

(id. at 18a), and that he had a “significant level of certainty” in his

identification (id. at 19a)

The government asserts that the district court “appears to have

placed the greatest weight” on the opportunity Lopez had to view

the owner of the auto shop (Br. in Opp. 16), but that ts pure specu-

lation. What we do know from the district court's opinion is that it

weighed the positive factors together. Pet. App. 19a. More impor-

tantly, that court found that both the witness's opportunity to view

the owner of the auto shop and his level of certainty were “signift-

cam” factors in favor of finding reliability. /hid. Because the court

found that Lopez's level of certainty was a “significant” factor in

favor of finding the identification reliable, the government cannot

reasonably argue that it knows whether the lower court would have

admitted the identification absent that factor.

9

Network Amicus Br. 16-19), and the evidence suggesting

that eyewitness certainty is a highly problematic factor, the

government’s speculation provides no reason not to grant re-

view and revisit Bigeers now, before more innocent defen-

dants are convicted based on evidence that should have been

excluded.

V. The Admission Of The Eyewitness Identification Evi-

dence In This Case Was Not Harmless Error.

The government's final argument is that the Court should

not gramt certiorari to consider the validity of the witness-

certainty factor because, even if the identification evidence

had been excluded, “there is litthe doubt” that petitioner

would nonetheless have been found guilty based on other

evidence. See Br. in Opp. 16. This argument is baseless.

In order for the government to prevail on its harmless er-

ror argument, it must demonstrate that the admission of the

identification evidence was “harmless beyond a reasonable

doubt.” Chapman vy. California, 386 U.S. 18, 24 (1967) (em-

phasis added); see also Neder v. United States, 527 U.S. |,

15 (1999); United States v. Wade, 388 U.S. 218, 242 (1967).

Particularly given the weight jurors place on eyewitness tes-

timony (see, ¢.g., ELIZABETH LOFTUS, EYEWITNESS TESTI

MONY 9-11 (1996) (finding that in a study of 150 mock

jurors, 68% who heard eyewitness testimony with cross-

examination voted guilty compared with 18% who did not

hear such testimony)), the government cannot conceivably

meet that burden based on the evidence in this record.

In this case, the cyewitness identification was persuasive

evidence linking petitioner to the crime because the witness,

Mario Lopez, identified petitioner as the “owner” of the auto

shop who, he said, repeatedly attempted to call the victim to

lure him to the shop, Gov't 2d Cir. Br. 15, Tr. 1289-1290. Of

course, the government acknowledges that petitioner was nor

the “owner” of the auto shop. See Br. in Opp. 3 (Perez Auto

owned by Wilfredo Perez, not petitioner).