      Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
      Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
      303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
      corrections@akcourts.us.



               THE SUPREME COURT OF THE STATE OF ALASKA

ARRON N. YOUNG,                                )
                                               )        Supreme Court No. S-15665
                      Petitioner,              )        Court of Appeals Nos. A-11006/11015
                                               )
              v.                               )        Superior Court Nos. 4FA-08-03022/
                                               )        02834 CR
STATE OF ALASKA,                               )
                                               )        OPINION
                      Respondent.              )
                                               )        No. 7110 - June 17, 2016

              Petition for Hearing from the Court of Appeals of the State of
              Alaska, on Appeal from the Superior Court of the State of
              Alaska, Fourth Judicial District, Fairbanks, Michael A.
              MacDonald, Judge.

              Appearances: Renee McFarland, Assistant Public Defender,
              and Quinlan Steiner, Public Defender, Anchorage, for
              Petitioner. Eric A. Ringsmuth, Assistant Attorney General,
              Anchorage, and Craig W. Richards, Attorney General,
              Juneau, for Respondent.

              Before: Fabe, Chief Justice, Stowers, Maassen, and Bolger,
              Justices. [Winfree, Justice, not participating.]

              MAASSEN, Justice.

I.    INTRODUCTION
              A defendant accused of involvement in a shooting was convicted at trial,
in part on the strength of three eyewitness identifications.                     He challenged the
admissibility of two of the identifications on due process grounds, but the superior court
ruled them admissible. The defendant also requested an eyewitness-specific jury
instruction, which the superior court refused. Finally, the defendant argued that he was
entitled to a mistrial because of an alleged discovery violation by the State that he
learned of mid-trial. The superior court denied his motion, finding that the State had not
violated the disclosure rules and alternatively that the defendant had not suffered any
prejudice. The defendant was convicted, and the court of appeals affirmed his
conviction.
              On petition to this court, the defendant argues not only that we should
reverse his conviction based on the current law on the admissibility of eyewitness
identifications but also that Alaska’s due process clause requires the adoption of a new
test. He also argues that the superior court erred in failing to give his requested jury
instruction and in failing to grant him a mistrial.
              We hold that the superior court erred under the law as it currently exists
when it held one of the eyewitness identifications sufficiently reliable to be admitted at
trial, but that it did not err in admitting the other. We also hold that the superior court
erred in refusing to give an eyewitness-specific jury instruction but did not err in denying
a mistrial. Because the errors are harmless, we affirm the defendant’s conviction.
              We also conclude, however, that the current test for the admissibility of
eyewitness identification evidence does not adequately protect the right to due process
under the Alaska Constitution. We therefore identify factors that courts should consider
in future cases when deciding whether to admit eyewitness identification evidence.




                                            -2-                                       7110

II.   FACTS AND PROCEEDINGS

      A.     The Crime And The Investigation
             During the summer of 2008 a series of violent incidents took place in the
Fairbanks area between members of two gangs, the Bloods and the Crips. In late July
there was a fight inside the Fairbanks Walmart; in early August there was another at the
Tanana Valley Fair. Persons known or alleged to be current or former members of the
Bloods were later shot at outside the Eagles Hall by persons shouting Crips slogans.
             The incident at issue here occurred on August 15 at approximately
4:00 p.m. A green Buick sedan carrying alleged members of the Bloods was traveling
down College Road in Fairbanks, followed by friends in another car. Another vehicle
variously described as a gray, silver, or white SUV passed them going the other way,
made a U-turn, and pulled up alongside the Buick. Someone in the SUV started shooting
at the Buick and continued to do so while the vehicles raced along for what was later
estimated to be two miles.
             No one was injured in the shooting, but the Buick was significantly
damaged. Bullets also passed through two uninvolved vehicles, narrowly missing their
passengers. A bystander walking her bike reported hearing a bullet pass by her head; she
jumped into a ditch to take cover.
             Later that evening the police arrested Arron Young. He had a gun in the
waistband of his pants and the key to a silver SUV in his pocket.
             The police interviewed witnesses from the scene and put out a request for
those with information to come forward. Jason Gazewood, a criminal defense attorney
and former prosecutor, contacted the police department to report that he had witnessed
part of the gunplay. A police detective visited Gazewood’s office and showed him a six­



                                          -3-                                      7110

person photographic array; Gazewood picked Young as looking most like the man he
had seen behind the wheel of the SUV.
             A grand jury convened in September 2008. There Gazewood testified
about what he had seen. Another witness, Arles Arauz, also identified Young as the
driver of the SUV. Although Arauz had told the police immediately after the incident
that he was unable to identify the assailants, at the grand jury hearing he picked Young’s
picture out of a photographic array. But a third grand jury witness, John Anzalone, failed
to identify Young and picked another man instead.
             The grand jury indicted Young for attempted murder in the first degree and
misconduct involving weapons in the first degree.
      B.     Young’s Motion To Suppress Gazewood’s Identification
             Trial was eventually set for January 4, 2010. In late December 2009 Young
moved to suppress Gazewood’s pretrial and in-court identifications, claiming that the
pretrial identification procedure had been unnecessarily suggestive.
             The superior court held an evidentiary hearing. Gazewood testified that the
police detective had come to his office about three days after the incident and showed
him a six-person photographic array. He testified that he remembered “saying something
about . . . having a recollection of it being someone of Samoan descent . . . before the
lineup was brought out,” though he could not recall whether he said this on the telephone
or after the detective arrived at his office. The detective testified that he did not
remember whether Gazewood had identified the driver’s race in the phone call.
             The photographic array contained photographs of six black men but no
Samoans. The detective testified that, because Gazewood was an attorney experienced
in criminal law, he did not give Gazewood any instructions before showing him the
array; he assumed Gazewood would understand the process and its purpose. Gazewood

                                           -4-                                      7110

testified that although he was given no instructions, he assumed that the array contained
the suspect because he had been involved in many such procedures in the past. He also
testified, however, that he did not feel he was required to select someone from among the
photos he was shown.
               Gazewood testified that he quickly narrowed his choice to two photos, one
of which was Young’s. Though conflicted, he was most focused on Young; he testified
that the way Young’s hair was pulled back in the photograph made him “more like the
person I’d seen in the vehicle certainly.” He testified that he put his finger tentatively
on Young’s photograph, at which point the detective told him to “trust your instincts.”
Gazewood testified that the detective’s remark terminated his deliberations, and he
selected Young as the man who looked most like the one he had seen in the SUV. When
asked at the hearing whether he believed the detective was suggesting the desired result,
he answered:
               Yeah, I . . . think he saw me laboring over it and spending a
               little more time pointing to Mr. Young than the other two, or
               the other one by the time I had eliminated one of them. And
               I took it as, you know, you’re pointing to this guy more than
               the others, you know, that’s the guy you should identify. . . .
               I took it as that’s the guy we want you to pick.
Gazewood testified that he was leaning toward Young anyway but that the detective’s
remark “ended this elimination process that I was kind of . . . undergoing. . . . [I]t was
a process that was taking a little bit of time and . . . that certainly ended it.” The detective
testified that he did not remember telling Gazewood to “trust your instincts” but that he
knew Young was the suspect and knew Young’s photograph was included in the array.




                                              -5-                                         7110

             At the evidentiary hearing Gazewood also testified about what he saw of
the crime. He testified that while he was waiting at a stoplight on College Road, “the
thing that drew [his] attention” was that a “green car” coming from behind him drove
“into the oncoming lanes of traffic” to get around the cars waiting at the light. He
testified that he then saw a white SUV coming up quickly behind him, and that he
observed the driver of the SUV in his rearview mirror for “between three and eight
seconds” before the vehicle passed him on the left in pursuit of the green car. He also
testified that he had seen Young’s photo in the newspaper a week before the evidentiary
hearing, and the newspaper photo looked more like the person he recalled seeing at the
time of the shooting than did the photo he picked in the array.
             The superior court denied Young’s motion to suppress. Employing the test
we have adopted from Manson v. Brathwaite, a decision of the United States Supreme
Court,1 the superior court first found that the photographic array itself was not
unnecessarily suggestive because there was “nothing in the photo array to distinguish the
defendant’s photo from the others.” The court found that the detective made the “trust
your instincts” comment but that it was not suggestive and did not influence Gazewood’s
choice. Finally, the court determined that even if the procedure was unnecessarily
suggestive, Gazewood’s identification of Young was still reliable under the totality of
the circumstances and therefore admissible.




      1
             Holden v. State, 602 P.2d 452, 456 (Alaska 1979) (quoting Manson v.
Brathwaite, 432 U.S. 98, 114 (1977)). As we explain below, the Brathwaite test first
determines whether the identification procedure was unnecessarily suggestive; if it was,
then the court must evaluate several factors to assess whether the identification was
nonetheless reliable.
                                           -6-                                     7110

      C.     Trial
             1.      Pretrial disclosure of Anzalone’s identification of Young
             On the first day of trial Young informed the court that the State had just
disclosed a police report stating that John Anzalone, who had failed to select Young from
the photographic array when testifying before the grand jury, would now identify Young
as one of the shooters. Anzalone had informed the prosecutor that he had seen Young’s
picture on television in connection with the case about a week before trial and was
prepared to identify him in court.
             Young objected to Anzalone’s testimony. He claimed that the pretrial
publicity had tainted Anzalone’s identification and it was therefore unreliable. He
argued that any in-court identification by Anzalone would be improperly suggestive
because Young would be the only African-American man sitting at the defense table and
this suggestiveness could not be overcome because Anzalone’s identification of Young
otherwise lacked sufficient indicia of reliability. The superior court ruled that while
Anzalone could not testify that he had first recognized Young on television (unless the
defense raised the issue on cross-examination), he could identify Young in the
courtroom. The court determined that Anzalone’s failure to pick Young from the initial
photo array did not affect his ability to identify Young at trial, and that any problems
with the in-court identification were properly addressed through cross-examination.
             2.      The State’s case at trial
             The State presented testimony from occupants of the Buick sedan and the
following vehicle, only one of whom, Arauz, could identify a shooter. Some witnesses
were unable to say how many people were in the assailants’ SUV, while others testified




                                           -7-                                     7110

it had two to four occupants. One witness testified that the assailants had bandanas over
their faces.2
                The driver of the Buick, Joseph Fainuu, testified that although he did not
see who was shooting at them, the shots were coming from a gray SUV. He testified that
the SUV was the one identified by the State. He further testified that he knew Young by
the nickname “Big Nasty” and that he had seen Big Nasty driving the SUV at times
before the shooting. Another of the Buick’s occupants testified that he had heard others
refer to the gray SUV as “Big Nasty’s car” at the time of the Eagles Hall shooting, and
that, though he could not identify Young as a participant in the College Road shooting,
the SUV the State alleged to belong to the shooters appeared to him to be Big Nasty’s
car. And another witness who had been riding in the second vehicle testified that he
heard someone in his car identify the silver SUV as “Big Nasty’s truck” right before the
shooting started.
                The State’s ballistics evidence indicated that shell casings retrieved from
the scene of the shooting were probably ejected from the gun found in Young’s
waistband at the time of his arrest. The State also established that the key found in
Young’s pocket fit the silver SUV identified as the one used in the shootings.
                The State presented three eyewitnesses to place Young at the scene.
Consistent with his testimony at the evidentiary hearing, Gazewood testified that Young
looked like the man he saw drive past him in the SUV. His testimony, however,
reflected some uncertainty. He did not say Young was definitely the driver, only that



       2
             The State also presented testimony about the property damage and near-
misses from bullets fired from the SUV, testimony detailing the investigation and other
gang-related incidents in Fairbanks, and testimony of a gang expert linking Young to
gang membership.
                                             -8-                                     7110

upon seeing Young’s photo in the array he “thought that . . . that looked a lot like the
person there and then seeing [Young’s] photograph in the paper made me think that that
looked a lot like the person I’d seen.”
              The second eyewitness, Anzalone, testified that he was starting a left turn
at a traffic light on College Road when he heard “several popping noises” coming from
his left. He testified that he saw two vehicles coming directly toward him and “what
looked like somebody firing a pistol out of [the] driver’s side window” of one of them,
an SUV. He testified that he reversed back through the intersection to avoid the
oncoming vehicles and, while doing so, observed Young at the wheel of the SUV,
though he did not make note of any passengers. Anzalone identified the driver
definitively in court as the man “sitting at the defense table,” but he also acknowledged
his earlier failure at the grand jury to pick Young out of a photo array.
              The third eyewitness, Arles Arauz, was an admitted former member of the
Bloods. Arauz had known Young since high school, when Young “beat [him] up” in a
fight over a romantic interest. Arauz testified that at the time of the shooting he was
riding in the vehicle following the Buick sedan. He testified that the Buick started a U-
turn, at which point a gray SUV “pull[ed] up and — from the back behind and then
start[ed] shooting at it.” He testified that he saw Young driving the gray SUV as it
passed him in pursuit of the Buick.
              Young sought to impeach Arauz on grounds that, although he had identified
Young at the grand jury, he had told investigating detectives right after the crime that he
could not identify any of the shooters. But Arauz insisted he had identified Young to the
police on the night of the shooting; this caused some confusion at trial. In the absence
of the jury, Arauz testified that the night of the shooting, after he had denied knowing
any of the shooters, he met with one of the investigating detectives in an off-the-record

                                            -9-                                      7110

interview and identified Young. The superior court recessed for the day to allow the
prosecution to investigate the matter.
              3.	    Young’s motion for mistrial based on Arauz’s newly revealed
                     statements to an investigator
              The next morning the State filed with the court a supplemental report of an
investigating detective, Detective Elzey, which described how he had indeed met with
Arauz a second time on the night of the shooting, after Arauz’s initial failure to identify
any of the shooters. The report explained that an unidentified man had called the police
station that night, stating that a friend knew about the shooting but would talk to
investigators only if what he told them was not written down or recorded. Elzey agreed
to these terms, and Arauz appeared at the police station and identified Young as the
shooter. Called to the stand for voir dire, Elzey testified that he did not disclose this
conversation to the prosecutor because he had promised not to. Instead, he decided to
wait to see how Arauz testified at the grand jury; if Arauz again identified Young, the
detective would consider the matter resolved, and if he did not identify Young the
detective would inform the prosecutor of the inconsistency. When Arauz positively
identified Young at the grand jury, Elzey decided that no disclosure was necessary.
              Young moved for a mistrial. He argued that the State’s failure to disclose
Arauz’s same-day identification of Young violated Rule 16 of the Alaska Rules of
Criminal Procedure and prejudiced his defense, which rested in part on showing that
Arauz decided to falsely identify Young at the grand jury only after learning that Young
was already a suspect. Young argued that Arauz’s earlier identification, before he knew
that Young was a suspect, damaged his ability to impeach Arauz, and that had he known
before trial of the same-day identification he might have pursued a defense of
justification instead of denying his involvement.


                                           -10-	                                     7110

              The superior court denied the motion. It found that there was no violation
of Rule 16 because the rule requires only disclosure of written or recorded witness
statements, and Arauz’s statement to Detective Elzey was neither written nor recorded;
it also found that disclosure of Arauz’s grand jury identification satisfied the
requirements of the rule. The court further found that, even if there had been a violation
of Rule 16, Young was not prejudiced because he knew from the grand jury testimony
that Arauz would identify Young as the shooter. But the court offered to continue trial
for a day to allow Young to further investigate the matter,3 and it allowed the defense the
option of excluding evidence that would corroborate Arauz’s claim that he had made a
same-day identification.
              4.     Young’s defense
              Young presented his alibi defense. His sister Angie testified that although
she and Young were estranged and had not seen each other much in the years leading up
to the shooting, she was with him that afternoon at his apartment. She testified that a
person she knew as “Little O” came over during the afternoon and gave Young a gun.
Young also presented evidence disputing his possession or ownership of the SUV, as
well as evidence relating to the earlier gang disputes that implicated a different Crips
faction than the one to which he belonged.




       3
             The superior court said it was giving the defense “four days of investigation
in response to the request for continuance,” but the four days included a three-day
holiday weekend, and Young’s attorneys informed the court that their investigator might
not be available on those days.
                                           -11-                                      7110

              5.     Young’s requested jury instructions
              After the close of evidence, Young asked the court to give a jury
instruction, based on case law from the Alaska Court of Appeals and other jurisdictions,
that identified factors affecting the reliability of eyewitness identifications. Alternatively,
Young asked the court to give the jury instruction approved by a federal appeals court
in United States v. Telfaire.4 The superior court declined to give either one. It found
Young’s customized instruction “more argument than it [was] a proposition of law,”
rejected the Telfaire instruction on the same grounds, and decided that the issues raised
by the eyewitness identifications were fully addressed by the existing pattern jury
instructions regarding the credibility of witnesses generally and the State’s burden of
proof.
              The jury convicted Young on all counts.
         D.   Appeal To The Court Of Appeals And Petition For Hearing
              Young appealed his conviction to the court of appeals.5 He argued first that
the superior court erred when it failed to suppress Gazewood’s identification under the
standard set out in Manson v. Brathwaite.6 The court of appeals disagreed with the
superior court in part, holding that the identification procedure had indeed been
unnecessarily suggestive.7 But the court of appeals ultimately found no error in




         4
              469 F.2d 552 (D.C. Cir. 1972).
         5
              Young v. State, 331 P.3d 1276 (Alaska App. 2014).
         6
              Id. at 1278-80.
         7
              Id. at 1279-80 (discussing Tegoseak v. State, 221 P.3d 345 (Alaska App.
2009)).
                                             -12-                                        7110

admitting Gazewood’s identification, concluding that it was nonetheless reliable under
the totality of the circumstances.8
              Young also argued that the superior court erred when it allowed Anzalone
to make his in-court identification.9 The court of appeals noted the superior court’s
reasoning: (1) “that it was not impermissible for a witness who failed to identify a
defendant in a lineup to make an in-court identification later”; (2) “that Young could
cross-examine Anzalone and bring out the factors that might cast doubt on Anzalone’s
identification”; and (3) that although Young was the only African-American man at the
defense table, “in a criminal trial, the defendant is almost always the only person at the
defense table aside from his attorney.”10 On this rationale, the court of appeals held “that
the [superior] court did not abuse its discretion by permitting Anzalone to make an in-
court identification.”11
              Young also challenged the superior court’s failure to give either of his
requested jury instructions on eyewitness testimony.12 As the court of appeals noted,
Young acknowledged “that this court has previously affirmed convictions where the trial
court gave the pattern instruction instead of a more focused instruction on eyewitness
identification”;13 the court of appeals “adhere[d] to those prior decisions and conclude[d]



       8
              Id. at 1279-81.

       9
              Id. at 1281.

       10
              Id.

       11
              Id.

       12
              Id.

       13
              Id.

                                           -13-                                       7110

that the trial court did not abuse its discretion in giving the pattern jury instruction in this
case.”14
              Finally, Young argued that the superior court erred when it refused to grant
a mistrial based on the State’s failure to disclose Arauz’s same-day identification of
Young as one of the assailants.15 The court of appeals held that the superior court erred
in deciding that the failure was not a discovery violation, because the prosecution’s
conduct “violated both the text and the spirit of Criminal Rule 16, which is designed to
prevent precisely this type of unfair surprise.”16 It concluded, however, that the superior
court had not erred in refusing to grant a mistrial, because Young had failed to show
prejudice.17 The court of appeals observed that “the major prejudice Young alleged” was
that he might have abandoned his alibi defense for a defense of justification; it also
observed, however, that a justification defense would have been “completely
inconsistent” with either Young’s alibi defense or the State’s evidence.18 Further,
“Young did not make an offer of proof or ask to present information to the court in
camera to establish that he had evidence to support the defense.”19 The court of appeals
accordingly found no error in the superior court’s denial of a mistrial.20



       14
              Id.
       15
              Id. at 1281-82.
       16
              Id. at 1282-83.
       17
              Id. at 1283.
       18
              Id.
       19
              Id.
       20
              Id.
                                             -14-                                         7110

             Young filed a petition for hearing with this court. He urged us to abandon
our reliance on Manson v. Brathwaite, “adopt a different test for the admission of
eyewitness identification evidence under the Alaska Constitution,” and reverse his
conviction. He argued that even in the absence of a new test, Alaska law required that
the Gazewood and Anzalone identifications be excluded. He also argued that the court
of appeals erred by affirming the superior court’s refusal to give his requested
instructions and to grant a mistrial. We granted Young’s petition.
III.   STANDARD OF REVIEW
             “The proper extent of appellate review for an unpreserved claim of
constitutional error is a question of law that we review de novo.”21 “We apply our
independent judgment to any questions of law, adopting the rule of law that is most
persuasive in light of precedent, reason, and policy.”22
             The determination whether an identification has been derived from
unnecessarily suggestive identification procedures and, if so, whether it is nonetheless
sufficiently reliable to be admitted at trial in conformance with due process is a mixed
question of law and fact.23 On mixed questions we “review[] the superior court’s factual
findings for clear error, and the legal issues de novo.”24



       21
             Johnson v. State, 328 P.3d 77, 81 (Alaska 2014).
       22
             Brooks v. Horner, 344 P.3d 294, 297 (Alaska 2015) (quoting Holmes v.
Wolf, 243 P.3d 584, 588 (Alaska 2010)).
       23
             See Cooper v. Bergeron, 778 F.3d 294, 300 (1st Cir. 2015) (citing Sumner
v. Mata, 455 U.S. 591, 597 (1982)).
       24
            Brown v. Knowles, 307 P.3d 915, 923 (Alaska 2013) (alteration in original)
(quoting Dashiell R. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs.,
222 P.3d 841, 849 (Alaska 2009)).
                                           -15-                                     7110

             “As long as the jury is properly instructed on the law, . . . the trial [judge]
has broad discretion to determine whether to give instructions specially tailored to the
case at hand.”25 “Issues involving the adequacy of jury instructions generally raise
questions of law and are subject to de novo review.”26
             “[T]he trial court is vested with ‘wide discretion’ in determining whether
a mistrial should be granted and its decision will be disturbed only if an abuse of
discretion is shown.”27
IV.   DISCUSSION
             In its 2009 opinion in Tegoseak v. State, the court of appeals highlighted
a number of weaknesses in the way courts, including Alaska’s, have evaluated the
reliability of eyewitness testimony in the decades since the United States Supreme
Court’s formative opinion in Manson v. Brathwaite.28 Young contends that it is time for
this court to take a similarly close look at the scientific evidence related to eyewitness
identifications and to change the standards for determining their admissibility and the
instructions that inform juries about how to assess their weight. As explained below,
while we conclude that a change in the way we evaluate eyewitness identifications would
not change the result in Young’s case, we agree that a Brathwaite-based test fails to take
into account the myriad factors now generally known to affect the reliability of


      25
             Power Constructors, Inc. v. Taylor & Hintze, 960 P.2d 20, 29 (Alaska
1998); see also Alaska R. Crim. P. 30.
      26
             Power Constructors, Inc., 960 P.2d at 29 (citing Sever v. Alaska Pulp
Corp., 931 P.2d 354, 361 n.11 (Alaska 1996)).
      27
             Amidon v. State, 565 P.2d 1248, 1261 (Alaska 1977).
      28
             Tegoseak v. State, 221 P.3d 345, 350-63 (Alaska App. 2009) (discussing
at length Manson v. Brathwaite, 432 U.S. 98 (1977)).
                                           -16-                                       7110

eyewitness evidence, and that such a test can no longer be viewed as consistent with
Alaska’s constitutional guarantee of due process.
        A.	   Young’s Challenges To The Eyewitness Identifications Admitted At
              Trial Do Not Require Reversal Of His Conviction.
              Young argues that it was error to admit the Gazewood and Anzalone
identifications at trial. He first contends that because the test we use to evaluate
eyewitness identifications is insufficiently protective of due process, we should adopt in
its place a new test based in part on due process protections and in part on the Alaska
Rules of Evidence. He also contends that it was error to admit the Gazewood and
Anzalone identifications even under current law.
              Young did not explicitly propose a new test for eyewitness identification
evidence to the superior court or the court of appeals. Having arguably failed to preserve
the issue, he urges us to adopt a “futility exception” to the preservation rule. We see no
need to do so here. First, we conclude that it was error to admit Gazewood’s
identification of Young at trial even under the existing Brathwaite test, as we discuss
below, though we also conclude that the error was harmless. Second, we conclude that
it was not error to admit Anzalone’s in-court identification and that our conclusion would
not be different under a new, more protective test. Thus, the application of a new test for
the admissibility of eyewitness identifications would not change the result in Young’s
case.
              As noted above, however, we are nonetheless convinced that the Brathwaite
test does not adequately screen out unreliable eyewitness identifications at trial and
therefore does not adequately protect defendants’ due process rights under the Alaska
Constitution. We outline today the factors relevant to the admission of eyewitness
identification testimony that courts should consider in future cases.


                                           -17-	                                     7110

              1.	    Under the Brathwaite test it was error to allow Gazewood to
                     identify Young as the driver — but that error was harmless.
              Nearly 50 years ago the United States Supreme Court decided that a pretrial
identification procedure could be “so unnecessarily suggestive and conducive to
irreparable mistaken identification that [a defendant] was denied due process of law”
when the witness later testified at trial about the pretrial identification29 or identified the
defendant in court as the perpetrator.30 We embraced these principles as consistent with
the due process clause of the Alaska Constitution.31
              In Manson v. Brathwaite, the Supreme Court clarified that an unnecessarily
suggestive pretrial identification procedure does not require automatic exclusion of the




       29
              Stovall v. Denno, 388 U.S. 293, 295, 302 (1967).
       30
              See Simmons v. United States, 390 U.S. 377, 382-84 (1968).
       31
              See Buchanan v. State, 561 P.2d 1197, 1204-05 (Alaska 1977) (discussing
Stovall, 388 U.S. at 302 and Simmons, 390 U.S. at 382-84); Klockenbrink v. State, 472
P.2d 958, 961-62 (Alaska 1970) (discussing Stovall, 388 U.S. 293). Although our past
cases have focused on the particular elements relevant to each case’s facts rather than
explaining the test comprehensively, see, e.g., Viveros v. State, 606 P.2d 790, 792 & n.1
(Alaska 1980) (evaluating photographic lineup for suggestiveness and reliability and
declining to adopt rule of per se exclusion because it “runs counter to the clear weight
of authority in Alaska and the federal system”); Holden v. State, 602 P.2d 452, 455-57
(Alaska 1979) (examining identification derived from showup procedure for reliability
according to Brathwaite, 432 U.S. at 114, without explicitly addressing unnecessary
suggestiveness), the Brathwaite test has been accepted as consistent with the Alaska
Constitution. See also Anderson v. State, 123 P.3d 1110, 1116 (Alaska App. 2005)
(“[O]ur supreme court has never expressly rejected federal law on this subject (the law
declared in Stovall and Brathwaite) in favor of a different rule adopted under our state
constitution. Rather, the test in Alaska is the same one announced by the United States
Supreme Court . . . .”).
                                             -18-	                                       7110

identification on due process grounds.32         Rather, “reliability is the linchpin in
determining the admissibility of identification testimony.”33 In determining reliability,
“[t]he factors to be considered are set out in [Neil v.] Biggers” (the “Biggers factors”),
which “include the opportunity of the witness to view the criminal at the time of the
crime, the witness’ degree of attention, the accuracy of his prior description of the
criminal, the level of certainty demonstrated at the confrontation, and the time between
the crime and the confrontation.”34 “Against these factors is to be weighed the corrupting
effect of the suggestive identification itself,” evaluated in light of the totality of the
circumstances.35
             In this case, the superior court found that the procedure used for
Gazewood’s initial identification of Young (including the detective’s comment to “trust
your instincts” as Gazewood lingered over Young’s photo) was not unnecessarily
suggestive. It also found that the identification was sufficiently reliable to be admitted
even if the procedure had been unnecessarily suggestive. The court of appeals held that
the superior court erred in determining that the procedure was not unnecessarily
suggestive but that the identification was nonetheless sufficiently reliable to be
admitted.36 We agree with the court of appeals’ first conclusion but disagree with its
second. We hold that in addition to being the product of an improperly suggestive
procedure, Gazewood’s identification was not sufficiently reliable to be admitted.


      32
             432 U.S. 98, 106-07, 114 (1977).
      33
             Id. at 114.
      34
             Id. (citing Neil v. Biggers, 409 U.S. 188, 199-200 (1972)).
      35
             Id.
      36
             Young v. State, 331 P.3d 1276, 1278-81 (Alaska App. 2014).
                                          -19-                                      7110

Accordingly, we hold that it was error to allow Gazewood to identify Young at trial as
the driver.
                     a.	    The procedure through which Gazewood identified
                            Young as the driver was unnecessarily suggestive.
              According to the State, the court of appeals erred in deciding that the
procedure for Gazewood’s pretrial identification was unnecessarily suggestive, because
Gazewood had already chosen Young as the driver before the detective said to “trust
your instincts.” But the court of appeals rejected this argument,37 and it was correct to
do so. While Gazewood testified that he “was kind of going there” in selecting Young
as the shooter and may well have picked Young anyway, he also testified that he took
the detective’s comment to mean “that’s the guy we want you to pick” and that it ended
his deliberations. He testified that what “stopped the process of me, . . . you know,
looking at the photo identification was [the detective’s] going trust your instinct. I mean,
that ended this elimination process I was kind of . . . undergoing. . . . [T]hat certainly
ended it.” He agreed that the detective’s comment was “pretty suggestive, yeah.” We
conclude that the court of appeals was correct to hold that the detective’s comment made
Gazewood’s identification procedure “so suggestive as to create ‘a very substantial
likelihood of irreparable misidentification.’ ”38




       37
             See id. at 1279-80 (“Although the superior court found that Gazewood had
already decided to select Young before [the detective] told him, ‘Go with your instincts,’
the record does not support that finding.”).
       38
             Noble v. State, 552 P.2d 142, 146 (Alaska 1976) (quoting Simmons v.
United States, 390 U.S. 377, 384 (1968)).
                                           -20-	                                      7110

                     b.	     It was error to hold that Gazewood’s identification of
                             Young was reliable despite the unnecessarily suggestive
                             identification procedure.
              Though concluding that the identification procedure was unnecessarily
suggestive, the court of appeals affirmed the admissibility of Gazewood’s identification
testimony because it determined that his identification of Young was nonetheless reliable
under the Brathwaite test.39 We conclude that this was error.
              The court of appeals summarized the superior court’s findings relating to
the five Biggers factors, noted that “eyewitness testimony is often critical and is the kind
of testimony that juries have traditionally been able to evaluate,” and determined that
“because of Gazewood’s extensive prior experience with lineup procedure and his
criticism of the procedure used in this case, his testimony was effective in establishing
the problems with the photo lineup and the influence this procedure had on his
identification.”40
              We agree that Gazewood’s testimony — due to both his own expressed
qualms about the identification process and an adept cross-examination — alerted the
jury to a number of factors relevant to assessing the reliability of his identification of
Young.41     But under Brathwaite the testimony was not admissible unless the


       39
              Young, 331 P.3d at 1280-81.
       40
              Id.
       41
               For example, in his testimony Gazewood volunteered the limitations on his
ability to view the perpetrator at the scene (“I had, you know, about three seconds to look
at someone in a rearview mirror.”), his first impression that the driver was Samoan, his
frustration with the detective’s suggestive comment during the photo array, and his
ultimate uncertainty (“I never said it’s number four, I’m certain. . . . I think the . . . term
I used is number four looks most like the guy.”). The cross-examination emphasized
                                                                               (continued...)
                                             -21-	                                       7110

identification was reliable, and, following an unnecessarily suggestive identification
procedure, a finding of reliability depends on an evaluation of the five Biggers factors:
“the opportunity of the witness to view the criminal at the time of the crime, the witness’
degree of attention, the accuracy of his prior description of the criminal, the level of
certainty demonstrated at the confrontation, and the time between the crime and the
confrontation.”42 We disagree that such an analysis supports the superior court’s finding
of reliability in this case.
               Supporting the reliability of Gazewood’s identification is “the length of
time between the crime and the confrontation.”43 The three days that passed before
Gazewood saw the photo array is longer than the time involved in other cases in which




       41
         (...continued)
Gazewood’s limited opportunity to view the perpetrator, the distractions of the traffic
light and other vehicles, Gazewood’s starting assumption that the photo array included
the person suspected by the police, notable differences among the photos used in the
array, and the possibility that Gazewood’s memory was influenced by the times he saw
Young afterwards in court.
       42
            Manson v. Brathwaite, 432 U.S. 98, 114 (citing Neil v. Biggers, 409 U.S.
188, 199-200 (1972)).
       43
               Biggers, 409 U.S. at 199-200.
                                           -22-                                      7110

we addressed the reliability of eyewitness identifications,44 but not so long as to weigh
against a finding of reliability given the circumstances of this case.45
              More weakly supporting reliability is the superior court’s finding that
Gazewood “had a sufficient degree of attention to the events”46 because the fast approach
of the vehicles in his rearview mirror put him on the alert. But Gazewood readily
acknowledged the simultaneous distractions of the other cars stopped at the light, the
changing signal, and having to watch for cross-traffic.
              The remaining three Biggers factors weigh against a finding of reliability.
Considering Gazewood’s “level of certainty,” the superior court found that his “conduct
during the photo lineup and his demeanor while testifying suggest a significant degree
of certainty.” Lacking the trial judge’s perspective on Gazewood’s demeanor, we
nonetheless note that Gazewood repeatedly declined to state definitively that Young was
the man he had seen. He testified at the evidentiary hearing that when the detective said


       44
              Those cases, however, largely involved showups immediately after the
crimes. See Walker v. State, 652 P.2d 88, 95 (Alaska 1982) (identification reliable in part
because “although the record is unclear as to the exact time lapse between the crime and
the identification, it was less than two hours”); Vessell v. State, 624 P.2d 275, 279
(Alaska 1981) (identification reliable in part because “the show-up took place within
minutes after the robbery had occurred”); Howe v. State, 611 P.2d 16, 18 (Alaska 1980)
(identification reliable in part because witness “saw Howe again and identified him
within less than two hours of the robbery”); Holden v. State, 602 P.2d 452, 457 (Alaska
1979) (identification reliable in part because taking place “no more than two hours after
[the witness] first laid eyes on her assailant”).
       45
             Cf. Biggers, 409 U.S. at 201 (“There was, to be sure, a lapse of seven
months between the rape and the confrontation. This would be a seriously negative
factor in most cases.”).
       46
               See Brathwaite, 432 U.S. at 114 (noting “the witness’ degree of attention”
as a factor to be considered in determining reliability).
                                           -23-                                      7110

“trust your instincts,” he had narrowed his choice down to two photos that “looked
vaguely familiar” — “I remember the two of them looked vaguely like the person that
I saw” — and that even though the detective’s comment terminated his deliberation with
the choice of Young, he “[didn’t] know necessarily where [he] would have wound up”
otherwise. Describing his earlier identification of Young at the grand jury, Gazewood
testified, “I said he looked . . . the most like the guy I saw that particular day.”
Throughout the evidentiary hearing he cautiously avoided stating that Young was
definitely the man he had seen; his testimony shows at most a relative certainty that
Young looked more like the perpetrator than did the other subjects he was shown.47 We
conclude that Gazewood’s level of certainty does not support a finding of reliability.
             Considering Gazewood’s “opportunity . . . to view the criminal at the time
of the crime,”48 the superior court found that he was a “bona fide on the scene witness
who had a good view of the events[,] . . . saw the events unfolding up close,” and had



      47
              Cf. Walker, 652 P.2d at 95 (“M.M.’s identification at the scene was certain
and without hesitation or equivocation.”); Howe, 611 P.2d at 18 (holding an
identification reliable in part because the witness “stated that Howe was the man that
robbed him ‘without a doubt’ ”); Holden, 602 P.2d at 457 (“[The witness] testified at the
omnibus hearing that she ‘was positive’ when she saw the photograph that the man
depicted was her assailant. Officer Winkleman specified at that hearing that her
identification was without hesitation or doubt.”).
                Based on its findings, the superior court may have considered Gazewood’s
confidence in his identification at the time of the evidentiary hearing. Although
testifying to uncertainty during the identification procedure itself, Gazewood also
testified at the hearing that he had seen Young’s “picture in the paper a couple days ago”
in connection with the pending trial and that the photo in the paper was “[m]ore similar
to the person [he] recall[ed]” seeing at the shooting. The appropriate focus, however, is
Gazewood’s level of certainty at the time of the challenged identification procedure.
      48
             Brathwaite, 432 U.S. at 114.
                                          -24-                                      7110

“three to eight seconds to witness [those] events.” While these findings do reflect
Gazewood’s testimony, we also note that his brief view of the driver in his rearview
mirror was not enough to give him confidence in his identification, as noted above; in
fact, Gazewood cited these details to explain why he hesitated to say definitively it was
Young. He readily admitted that while the SUV was coming up behind him the light
changed, traffic started to move, and his focus was shifting back and forth. It is also
worth noting that in Gazewood’s quick sighting of the driver in his rearview mirror he
identified him as Samoan (whereas Young is African American), identified the SUV as
white (whereas Young’s SUV was gray or silver), and failed to note the presence of any
passenger (until the SUV had passed him, when he saw a hand with a gun extend from
the passenger-side window and start shooting). Under the circumstances, we cannot
agree that Gazewood’s opportunity to view the perpetrator weighs in favor of the
reliability of his identification.49
              Finally, with regard to “the accuracy of [the witness’s] prior description of
the criminal,”50 the superior court found significant that Gazewood had previously
identified the shooter as a “Black or Samoan man who had his hair pulled back.” This
factual finding, however, is clearly erroneous: while Gazewood consistently recalled that
the driver’s hair was “pulled back,” he initially described the man not as “Black or




       49
               Cf. United States v. Meyer, 359 F.3d 820, 925-26 (6th Cir. 2004) (holding
that the first Biggers factor, the witness’s opportunity to view the perpetrator, weighed
heavily in favor of reliability when the witness, the driver of a postal truck during a
holdup, observed the perpetrator “at close range” for “between two and four minutes”
and had a “conversation” with him about the cash box and the truck keys).
       50
              Brathwaite, 432 U.S. at 114.
                                           -25-                                      7110

Samoan” but as “Samoan.”51 And other than the pulled-back hair and “kind of a round
face,” the record does not reflect that Gazewood could or did describe the driver’s facial
features, clothing, or other distinguishing characteristics. While Gazewood’s initial
description of the driver may have matched Young in a very general sense, we conclude
that it was not accurate or specific enough to support a finding that his later selection of
Young’s photograph was reliable.52
              The Brathwaite test requires that we weigh the five Biggers factors “[i]n
light of the totality of the circumstances” against “the corrupting effect of the suggestive
identification itself.”53 Given that only two of the Biggers factors provide only modest
support for a finding of reliability, we conclude that they cannot overcome the
unnecessary suggestiveness of the photo array. We therefore hold that it was error to
admit Gazewood’s identification of Young at trial.




       51
              We note Gazewood’s later trial testimony that when he first contacted the
police, “I had said that the person was — was Samoan or maybe black, I think.” But at
the evidentiary hearing, when the court was determining whether Gazewood’s
identification could be considered by the jury, Gazewood testified consistently that he
first thought the driver was Samoan. He recalled telling the investigating detective,
either on the phone or when he came to Gazewood’s office with the photo array, that he
thought the driver “was of Samoan descent.”
       52
               Cf. Vessell v. State, 624 P.2d 275, 279 (Alaska 1981) (“The description that
[the witnesses] gave to the police immediately after the robbery was detailed and
accurate, although they differed slightly on the exact type of boots that the robber
wore. . . . Finally, both [witnesses] were positive in their statements that [the defendant]
wore the same clothing as the man that robbed them, although neither claimed that he
could recognize [the defendant’s] facial features.”).
       53
              Holden v. State, 602 P.2d 452, 456-57 (Alaska 1979).
                                           -26-                                       7110

                     c.	    The error in admitting Gazewood’s identification at trial
                            was harmless.
              We conclude, however, that the error in admitting the evidence of
Gazewood’s identification was harmless beyond a reasonable doubt.54 The admission
of an unreliable eyewitness identification at trial is harmless “if there [is] conclusive
independent evidence, apart from the [unreliable] identification testimony[,] . . . that
identified [the defendant] as the [culprit].”55
              In prosecuting Young, the State did not rely solely on Gazewood’s
identification; two other eyewitnesses placed Young at the scene. Arles Arauz, who had
known Young since high school, identified him as the driver of the SUV. John
Anzalone, another driver near the shooting, positively identified Young as the driver.
And significant circumstantial evidence tied Young to the crime. The key in his pocket
when he was arrested was found to operate the SUV the State alleged was used in the
shooting. The State’s witnesses identified the SUV as belonging to “Big Nasty,” a
nickname for Young. The nine-millimeter Luger pistol Young was carrying when he
was arrested was shown to match bullet casings found at the crime scene.
              In assessing whether the erroneous admission of Gazewood’s identification
was harmless, we also find significant the extent to which he qualified his own testimony
by emphasizing the brevity of his opportunity to view the perpetrator and his frustration
with what he considered to be a suggestive comment at the photo array.56 Admission of


       54
             See Raphael v. State, 994 P.2d 1004, 1010 (Alaska 2000) (“A constitutional
error is ground for reversal of conviction unless the error is ‘harmless beyond a
reasonable doubt.’ ”).
       55
              McCracken v. State, 521 P.2d 499, 504-05 (Alaska 1974).
       56
              See supra note 41.
                                            -27-	                                  7110

a weak and equivocal identification is more likely to be harmless error than admission
of a strong and confident one.57
              Thus, despite the error in admitting Gazewood’s identification, the fact that
there was “conclusive independent evidence, apart from the [unreliable] identification
testimony,”58 implicating Young in the shooting leads us to conclude that the error was
harmless beyond a reasonable doubt.
              2.     It was not error to allow Anzalone to identify Young in court.
              Young also argues that it was error to permit Anzalone, who had failed to
identify him at the grand jury, to identify him at trial as the driver after having seen his
photo on the television news. We conclude that this was not error.



       57
              See Williams v. Stewart, 441 F.3d 1030, 1039 (9th Cir. 2006) (holding that
any error in admitting evidence of suggestive showup was harmless where “[c]ross­
examination brought out the weakness of [the witness’s] identification, the
suggestiveness of the circumstances under which it was made, the few seconds she had
to see the suspect to begin with, the fact that she had been unable to pick [the defendant]
out of the photo array, and the two and a half years that had elapsed between her five
second encounter on [the date of the incident] and the deposition at which she identified
[the defendant]”); United States v. Washington, 353 F.3d 42, 45-46 (D.C. Cir. 2004)
(holding that any error in admitting evidence of suggestive lineup was harmless beyond
a reasonable doubt where, among other reasons, “the potential impact on the jury of [the]
lineup identification was slight because it was, at best, equivocal; she said only that her
assailant ‘might be number two,’ ” and defense counsel “denigrated” the identification
in cross-examination and closing argument as “the unreliable product of a suggestive
procedure”); State v. Conyers, 236 S.E.2d 393, 396 (N.C. App. 1977) (“[The witness’s]
in-court identification testimony before the jury in this case was so weak [—] she
testified only that defendant ‘resembles one of the guys who went to the back’ [—] and
the other evidence of defendant’s guilt, including his signed confessions[,] was so
overwhelming, that the admission of her testimony, if error at all, was harmless beyond
any reasonable doubt.”).
       58
              McCracken, 521 P.2d at 504-05.
                                           -28-                                       7110

                     a.	    Due process protections against unnecessarily suggestive
                            identifications do not apply to Anzalone’s initial
                            identification of Young after seeing his picture on
                            television.
              Young argues first that Anzalone’s identification of him after seeing his
picture on the television news constitutes an unnecessarily suggestive identification
procedure and that the superior court should have assessed its reliability under the
Brathwaite test before allowing Anzalone to identify Young in court. But the due
process protections against unnecessarily suggestive identification procedures do not
apply in the absence of state action.59 As the United States Supreme Court has recently
held, the “due process check on the admission of eyewitness identification [is] applicable
when the police have arranged suggestive circumstances leading the witness to identify
a particular person as the perpetrator of a crime.”60
              When no improper law enforcement activity is involved, . . .
              it suffices to test reliability through the rights and
              opportunities generally designed for that purpose, notably,
              the presence of counsel at post-indictment lineups, vigorous
              cross-examination, protective rules of evidence, and jury
              instructions on both the fallibility of eyewitness identification




       59
               Nichols v. Eckert, 504 P.2d 1359, 1362 (Alaska 1973) (“For [the due
process] clause to apply there must be state action and the deprivation of an individual
interest of sufficient importance to warrant constitutional protection.”); cf. Perry v. New
Hampshire, 132 S. Ct. 716, 730 (2012) (“[T]he [federal] Due Process Clause does not
require a preliminary judicial inquiry into the reliability of an eyewitness identification
when the identification was not procured under unnecessarily suggestive circumstances
arranged by law enforcement.”).
       60
              Perry, 132 S. Ct. at 720 (emphasis added).
                                            -29-	                                    7110

              and the requirement that guilt be proved beyond a reasonable
              doubt.[61]
              Consistent with these principles, we held in Kimble v. State that accidental
confrontations do not ordinarily implicate due process concerns.62 Such a confrontation
“may be the subject of cross-examination of course, but on the whole the question is one
going to the weight rather than the admissibility of the evidence.”63 While the facts in
Kimble — where the police were alleged to have arranged an “accidental” showup with
the witness — made for a close question,64 this is not such a case. Because there was no
state action involved in Anzalone’s identification of Young from a picture on the
television news, due process did not require that the superior court screen it for reliability
under Brathwaite.
                     b.	       Due process protections against unnecessarily suggestive
                               eyewitness identifications do not apply to Anzalone’s
                               first-time in-court identification.
              Young also argues that Anzalone’s in-court identification of him was itself
unnecessarily suggestive because it “was equivalent to a show-up, where an individual
is presented with one suspect and asked to make a yes or no identification.” Young


       61	
              Id. at 721.
       62	
              539 P.2d 73, 77 (Alaska 1975).
       63
              Id. In Kimble, the defendant challenged an in-court identification after the
witness, present at the police station on an unrelated matter, had identified the defendant
as he was being led into a holding cell. Id. at 76-77. While Kimble claimed that
admission of the in-court identification would violate his right to due process, we held
that “[t]o extend the Wade-Stovall line of cases to purely accidental pretrial
confrontations would place too great a burden on police and prosecutors to isolate
witnesses and defendants.” Id. at 77.
       64
              See id. at 77.
                                            -30-	                                       7110

observes that he was the only African-American man in the courtroom and that he was
sitting at counsel table with his lawyer. He contends that given the suggestiveness of
these circumstances, the superior court should have assessed the reliability of the
resulting identification under Brathwaite and should have excluded it.
              We have never directly addressed whether a first-time in-court
identification triggers application of the same due process protections that apply to
suggestive pretrial identifications.65 We now decide it does not. Our conclusion is
driven by the fundamental differences between identifications derived from state action
prior to trial and those that occur in the courtroom. A pretrial identification ordinarily
involves only the police and the witness, and how the identification is later evaluated at
trial depends largely on those participants’ recollections of it. An in-court identification,
in contrast, occurs in the presence of the judge, the jury, and the lawyers. The
circumstances under which the identification is made are apparent. Defense counsel has
the opportunity to identify firsthand the factors that make the identification suggestive
and to highlight them for the jury.66 We also note that there are other ways, though not


       65
              This court and the court of appeals have both declined to reach the issue of
an allegedly suggestive in-court identification after finding that a consistent pretrial
identification was proper. See Viveros v. State, 606 P.2d 790, 793 (Alaska 1980)
(“Because we have concluded that the pre-trial identification was proper, it is
unnecessary to consider whether the in-court identification was permissible in the wake
of an impermissible pre-trial identification.”); Dunbar v. State, 677 P.2d 1275, 1278 n.1
(Alaska App. 1984) (“Our holding that the photographic lineup was not impermissibly
suggestive . . . disposes of [the defendant’s] claim with respect to the in-court
identification.”).
       66
               See People v. Rodriguez, 480 N.E.2d 1147, 1151 (Ill. App. 1985) (“Where
a witness first identifies the defendant at trial, defense counsel may test the perceptions,
memory and bias of the witness, contemporaneously exposing weaknesses and adding
                                                                              (continued...)
                                            -31-                                       7110

used in this case, in which the risks of in-court misidentifications can be either minimized
in practice or pointed out to the jury. Expert witnesses can testify about the problems
inherent in first-time in-court identifications;67 the trial court may grant a defendant’s
request for an in-court lineup or to be seated somewhere other than counsel table for the
identification.68
              We recognize that this is a close question, and by our decision today we do
not mean to foreclose the possibility that a first-time in-court identification could be
unnecessarily suggestive. For example, courts have found due process violations where
the prosecutor improperly coached the witness into making an in-court identification.69


       66
        (...continued)
perspective in order to lessen the hazards of undue weight or mistake.”). Here, Young’s
attorneys cross-examined Anzalone vigorously on the circumstances of the identification
and his failure to identify Young earlier.
       67
               In this case, Young sought to introduce expert testimony about the
fallibility of eyewitness identifications, but the superior court refused to allow it on
grounds that the State had not received adequate notice. Young did not challenge that
decision on appeal.
       68
              See, e.g., United States v. Thompson, 524 F.3d 1126, 1136 (10th Cir. 2008)
(“[A]lthough the district court offered Mr. Thompson the opportunity to use an in-court
line-up or photos to lessen the suggestiveness of the in-court identification, he was not
constitutionally entitled to such methods and, in any event, did not take advantage of
them.”); United States v. Domina, 784 F.2d 1361, 1369 (9th Cir. 1986) (“There is no
constitutional entitlement to an in-court line-up or other particular methods of lessening
the suggestiveness of in-court identification, such as seating the defendant elsewhere in
the room. These are matters within the discretion of the court.”).
       69
             See United States v. Greene, 704 F.3d 298, 307 (4th Cir. 2013) (holding
that due process was violated “where the phrasing of a question suggest[ed] the desired
response” and “the witness understandably may have felt pressure to find something in
the defendant that reminded her of the bank robber,” thereby presenting “a suggestive
                                                                         (continued...)
                                           -32-                                       7110

In this case, however, Anzalone volunteered his identification of Young. The prosecutor
simply asked him whether he could “give us any description of the person that you saw,”
to which Anzalone answered, “He’s in the courtroom today.” The prosecutor asked, “Do
you recognize him?” and Anzalone responded, “He’s sitting at the defense table.”
              We emphasize that the due process protections that have been developed
around the admissibility of eyewitness identifications, and which we clarify today, are
intended to correct for unnecessarily suggestive police conduct during its investigation,
and that courtrooms have a number of other safeguards — impartial judge and jury,
competent defense counsel, the rules of evidence, the State’s burden of proof — that are
intended to ensure due process.70 While recognizing that the suggestiveness and
reliability of first-time in-court identifications present many of the same issues as those
that affect pretrial identifications, we are not prepared to extend the same rules to both.
We conclude that the superior court did not err when it allowed Anzalone to identify
Young in court as the driver.




       69
         (...continued)
situation in which it is not clear whether the witness’s own recollections, or outside
pressures, are driving the testimony”); Bennett v. Miller, 419 F. App’x 18, 20 (2d Cir.
2011) (“[The witness] never identified [the defendant] prior to trial; he twice failed to
make an in-court identification while on the stand; and only after he watched from the
galley when the prosecutor identified [the defendant] as the shooter did [the witness]
undertake to make an in-court identification.”).
       70
            See Perry v. New Hampshire, 132 S. Ct. 716, 728-29 (2012) (listing “other
safeguards built into our adversary system that caution juries against placing undue
weight on eyewitness testimony of questionable reliability,” including the right to
confront witnesses, the right to counsel, eyewitness-specific jury instructions, the
evidence rules excluding relevant but unfairly prejudicial evidence, and expert
testimony).
                                           -33-                                      7110

              3.	    Because the Brathwaite test does not adequately protect the right
                     to due process under the Alaska Constitution, we adopt a new
                     approach to deciding the admissibility of eyewitness
                     identification evidence in future cases.
              Although the result in Young’s case is unaffected by a prospective change
in the law, we are convinced that Alaska’s existing test for the admission of eyewitness
identifications does not go far enough in protecting the right to due process under the
Alaska Constitution. We generally refrain from issuing advisory opinions,71 but at times
we set aside this judicial policy of self-restraint to correct or clarify important aspects of
the law.72 In the exercise of our general “supervisory power to formulate standards for
the enforcement of criminal law in the courts of this state”73 and our more specific
“supervisory powers over state courts pertaining to the admissibility of evidence,”74 we

       71	
              Larson v. State, 254 P.3d 1073, 1078 (Alaska 2011).
       72
               See, e.g., Lyons v. Midnight Sun Transp. Servs., Inc., 928 P.2d 1202,
1204-05 (Alaska 1996) (finding that “any possible error resulting from the use of [a]
sudden emergency instruction” was harmless but “tak[ing] this opportunity to disapprove
of the instruction’s further use,” with an in-depth discussion of the issue); Moreau v.
State, 588 P.2d 275, 283-84 (Alaska 1978) (holding that a codefendant voluntarily
waived his Sixth Amendment right to individual counsel but requiring trial courts to
apply stricter standards for dual representation in future cases, modeled after Minnesota
precedent); Thurlkill v. State, 551 P.2d 541, 544-45 & n.9 (Alaska 1976) (finding no
reversible error in a presentence report’s reliance on unverified police contacts but
instructing trial courts in future cases to expressly state that they are not relying on those
contacts in sentencing, and also “urg[ing] that the probation personnel act responsibly
in this area”).
       73
             Simms v. State, 464 P.2d 527, 528 (Alaska 1970) (exercising supervisory
power to advise trial courts about limiting jurors’ access to materials beyond what was
admitted in evidence).
       74
             Roman v. State, 570 P.2d 1235, 1243-44 (Alaska 1977) (exercising
supervisory power to require that conditions of parole authorizing warrantless searches
                                                                         (continued...)
                                            -34-	                                       7110

today announce a new test for the admissibility of eyewitness identification testimony
that we believe is consistent with the due process protections of Alaska’s constitution.
             In so doing we necessarily depart from Manson v. Brathwaite and the
Alaska cases that relied on it as the touchstone. “We do not lightly overrule our past
decisions.”75 However, “stare decisis is a practical, flexible command that balances our
community’s competing interests in the stability of legal norms and the need to adapt
those norms to society’s changing demands.”76 With these considerations in mind, “we
will overrule a prior decision only when ‘ “clearly convinced that the rule was originally
erroneous or is no longer sound because of changed conditions, and that more good than
harm would result from a departure from precedent.” ’ ”77 We are convinced that this is
the case with respect to the Brathwaite test.
                    a.     Changed conditions justify replacing the Brathwaite test.
             The “changed conditions” that justify abandoning a prior decision include
where “related principles of law have so far developed as to have left the old rule no
more than a remnant of abandoned doctrine, [or] facts have so changed or come to be
seen so differently, as to have robbed the old rule of significant application.”78
Developments in the science related to the reliability of eyewitness identifications, and

      74
        (...continued)
“be specified by the Parole Board and not left to the discretion of individual parole
officers”).
      75
             State v. Dunlop, 721 P.2d 604, 610 (Alaska 1986).
      76
             State v. Carlin, 249 P.3d 752, 757 (Alaska 2011) (alteration omitted)
(quoting Pratt &Whitney Canada, Inc. v. Sheehan, 852 P.2d 1173, 1175 (Alaska 1993)).
      77
             Pratt & Whitney, 852 P.2d at 1176 (quoting Dunlop, 721 P.2d at 610).
      78
            Id. (alteration in original) (quoting Planned Parenthood v. Casey, 505 U.S.
833, 855 (1992)).
                                          -35-                                      7110

courts’ responses to those developments, have significantly weakened our confidence in
the Brathwaite test as a tool for preventing the admission of unreliable evidence at trial,
and therefore its capacity for protecting the due process rights afforded by the Alaska
Constitution.79
              The State aptly observes that doubts about the reliability of eyewitness
identifications are neither “revelatory nor recent.” The United States Supreme Court
noted even before Brathwaite that “[t]he vagaries of eyewitness identification are well-
known; the annals of criminal law are rife with instances of mistaken identification,” and
“[t]he hazards of such testimony are established by a formidable number of instances in
the records of English and American trials.”80 But “the hazards of such testimony” are
even more well documented since Brathwaite.
              Brathwaite was decided in 1977, and “[t]he modern era of eyewitness
identification research began” more or less contemporaneously, “in the 1970s.”81 But
“[t]he past few decades have seen an explosion of additional research that has led to
important insights into how vision and memory work, what we see and remember best,




       79
               In Perry v. New Hampshire, the United States Supreme Court reaffirmed
its reliance on Brathwaite under the United States Constitution. 132 S. Ct. 716, 723-25
(2012). But while “[t]he Federal Constitution protects the due process rights of all
Americans, . . . federal law does not preclude the Alaska Constitution from providing
more rigorous protections for the due process rights of Alaskans.” Doe v. State, Dep’t
of Pub. Safety, 92 P.3d 398, 404 (Alaska 2004).
       80
              United States v. Wade, 388 U.S. 218, 228 (1967).
       81
            NAT’L ACAD. OF SCI., IDENTIFYING THE CULPRIT: ASSESSING EYEWITNESS
IDENTIFICATION 16 (2014) [hereinafter IDENTIFYING THE CULPRIT].
                                           -36-                                      7110

and what causes these processes to fail.”82 The Supreme Court of New Jersey
comprehensively surveyed the literature in a 2011 opinion that we find particularly
persuasive. The court assigned a special master to consider the scientific evidence on
eyewitness identifications and, after receiving the master’s report, summarized:
“Virtually all of the scientific evidence considered on remand emerged after
[Brathwaite],” and, while the 1970s “produced only four published articles in
psychology literature containing the words ‘eyewitness’ and ‘identity’ in their
abstracts[, . . .] more than two thousand studies related to eyewitness identification have
been published in the past thirty years.”83
              The State contends that we should not consider scientific evidence that was
not subjected to the adversarial process at trial. We “recognize that evaluation of
scientific information at the appellate level is without the advantage of
cross-examination.”84 Other states’ high courts have followed different procedural paths
when modifying their standards for evaluating eyewitness identifications. The special
master appointed by the New Jersey Supreme Court “to evaluate scientific and other
evidence about eyewitness identifications . . . presided over a hearing that probed
testimony by seven experts and produced more than 2,000 pages of transcripts along
with hundreds of scientific studies,” then issued an extensive report on which the court




       82
              Id. at 69.
       83
            State v. Henderson, 27 A.3d 872, 892 (N.J. 2011); see also REPORT OF THE
SPECIAL MASTER, State v. Henderson, A-8-08, at 8-14 (N.J. June 18, 2010),
https://www.judiciary.state.nj.us/pressrel/HENDERSON%20FINAL%20BRIEF%20.
PDF%20(00621142).PDF.
       84
              State v. Erickson, 574 P.2d 1, 6 (Alaska 1978).
                                           -37-                                      7110

heavily relied.85 Other courts, acknowledging the scientific consensus, have not required
that the science be tested again in a trial-like process. The Massachusetts Supreme
Judicial Court convened a “Study Group” in 2011 to determine how it could improve its
model jury instructions for the evaluation of eyewitness identifications.86 In 2015 the
court “review[ed] the scholarly research, analyses by other courts, amici submissions,
and the Study Group Report and comments” and adopted new standards.87 The supreme
courts of Connecticut,88 Hawai’i,89 Oregon,90 Utah,91 and Wisconsin,92 while noting

       85
              Henderson, 27 A.3d at 877.
       86
               See Commonwealth v. Walker, 953 N.E.2d 195, 208 n.16 (Mass. 2011)
(convening study group “to consider how we can best deter unnecessarily suggestive
procedures and whether existing model jury instructions provide adequate guidance to
juries in evaluating eyewitness testimony”); see also SUPREME JUDICIAL COURT STUDY
GROUP ON EYEWITNESS EVIDENCE, REPORT AND RECOMMENDATIONS TO THE JUSTICES
(2013), http://www.mass.gov/courts/docs/sjc/docs/eyewitness-evidence-report- 2013.pdf.
       87
              Commonwealth v. Gomes, 22 N.E.3d 897, 905, 909-10 (Mass. 2015).
       88
                State v. Guilbert, 49 A.3d 705, 720-22 (Conn. 2012) (holding that expert
testimony should be allowed on the reliability of eyewitness identifications; relying both
on “[t]he extensive and comprehensive scientific research, as reflected in hundreds of
peer reviewed studies and meta-analyses, [which] convincingly demonstrates the
fallibility of eyewitness identification testimony and pinpoints an array of variables that
are most likely to lead to a mistaken identification,” and on the fact that courts
nationwide have followed this science in revising their approaches to eyewitness
testimony).
       89
               State v. Cabagbag, 277 P.3d 1027, 1035-38 (Haw. 2012) (describing other
states’ adoption of new standards for the evaluation of eyewitness testimony but
concluding that “[m]ost significantly, the impetus for a change in our approach lies in the
empirical research that reveals that people generally do not understand all of the factors
that affect the reliability of an eyewitness identification”).
       90
              State v. Lawson, 291 P.3d 673, 685 (Or. 2012) (en banc) (“Based on our
                                                                        (continued...)
                                           -38-                                      7110

judicial trends, have also relied directly on the scientific research to explain why their
standards should be modified.
              We consider it unnecessary to retest the validity of the scientific evidence
on which these other high courts rely. We are not relying on disputed scientific evidence
to disturb or affirm the verdict in this case, but rather identifying factors for trial courts’
future use — factors other courts have found highly relevant to their constitutional
guarantees of due process. We adopted the Brathwaite test of reliability in 1979 without
reference to whether its assumptions were scientifically valid.93 In the decades that
followed we applied a “totality of the circumstances” test that included the Biggers



       90
         (...continued)
extensive review of the current scientific research and literature, we conclude that the
scientific knowledge and empirical research concerning eyewitness perception and
memory has progressed sufficiently to warrant taking judicial notice of the data
contained in those various sources as legislative facts that we may consult for assistance
in determining the effectiveness of our existing test for the admission of eyewitness
identification evidence.”).
       91
              State v. Clopten, 223 P.3d 1103, 1108 (Utah 2009) (concluding that a
cautionary instruction was not enough of a safeguard and that expert testimony on
eyewitness identifications should generally be admitted as well; relying directly on
scientific research, though noting: “That the empirical data is conclusive on these
matters is not disputed by either party in this case and has not been questioned by this
court in [its] decisions [since 1986, when the court first acknowledged the inherent
weaknesses of eyewitness identification]”).
       92
             State v. Dubose, 699 N.W.2d 582, 591-92 (Wis. 2005) (deciding that
showups are inherently suggestive; revisiting reliance on Biggers and Brathwaite in light
of subsequent “extensive studies on the issue of identification evidence, research that is
now impossible for us to ignore”).
       93
             Holden v. State, 602 P.2d 452, 456 (Alaska 1979) (quoting Manson v.
Brathwaite, 432 U.S. 98, 114 (1977)).
                                             -39-                                        7110

factors because the Supreme Court had decided those factors were relevant.94 As our
sister courts find reason to be dissatisfied with Brathwaite and the Biggers factors, it is
appropriate that we take note of their concerns and use their reasoning to inform our own
constitutional analysis. We find highly significant the extent to which other courts have
reviewed the evidence, accepted it as valid, and filtered it through their own
constitutional analyses.
                Ultimately, the movement away from the Brathwaite test in other
jurisdictions, in reliance on advances in the relevant research, convinces us that
conditions have changed.95 We conclude that “the legal landscape is very different than
it was” when we decided to follow Brathwaite 37 years ago, and “[t]his new diversity
of opinions among the high courts of states throughout the country is another reason to
conclude that the ‘changed conditions’ element of the test for overruling precedent is
satisfied.”96




       94
                See, e.g., Vessell v. State, 624 P.2d 275, 279 (Alaska 1981).
       95
              See, e.g., State v. Carlin, 249 P.3d 752, 758, 761 (Alaska 2011)
(considering “the growing number of states that have rejected” a proposition of law in
holding that “the ‘changed conditions’ element of the test for overruling precedent is
satisfied”); Tegoseak v. State, 221 P.3d 345, 359 (Alaska App. 2009) (“The year 2005
appears to have been a turning point of sorts in the judicial recognition of the growing
body of research into the psychological dynamics of eyewitness identification.”).
       96
              Carlin, 249 P.3d at 760-61; see also Charles v. State, 326 P.3d 978, 984
n.58 (Alaska 2014) (“Our conclusion today that Judd was erroneous is bolstered by
changed conditions. . . . [I]n Judd we were persuaded in part to adopt the Linkletter
criteria because of their universal acceptance. . . . But after Griffith it is no longer true
that the weight of authority supports Linkletter for direct review retroactivity.” (internal
citations omitted)).
                                            -40-                                       7110

              We also conclude that “more good than harm would result from a departure
from” the Brathwaite test.97 “It is indisputable that a primary goal, perhaps the
paramount goal, of the criminal justice system is to protect the innocent accused against
an erroneous conviction,”98 and we cannot doubt that mistaken eyewitness identifications
lead to wrongful convictions.99       Justice Sotomayor, dissenting in Perry v. New
Hampshire, noted that “[t]he empirical evidence demonstrates that eyewitness
“misidentification is ‘ “the single greatest cause of wrongful convictions in this
country.” ’ ”100 Even the majority opinion in Perry “d[id] not doubt either the
importance or the fallibility of eyewitness identifications.”101 And the risks posed by the
admission of unreliable identifications is magnified by the effect eyewitness testimony
has on the jury: as Justice Brennan noted, “[T]here is almost nothing more convincing


       97
              Carlin, 249 P.3d at 757. In making this determination, we “balance the
benefits of adopting a new rule against the benefits of stare decisis: providing guidance
for the conduct of individuals, creating efficiency in litigation by avoiding the relitigation
of decided issues, and maintaining public faith in the judiciary.” Id. at 761-62.
       98
              Shaw v. State, Dep’t of Admin., 861 P.2d 566, 570 (Alaska 1993).
       99
              See, e.g., Samuel R. Gross et. al., Exonerations in the United States 1989
Through 2003, 95 J. CRIM. L. & CRIMINOLOGY 523, 542 (2005) (“The most common
cause of wrongful convictions is eyewitness misidentification.”); Tegoseak, 221 P.3d at
360 (“The changing attitude of the legal system is attributable to the fact that ‘the
development of forensic DNA testing in the 1990s [uncovered] definitive cases of the
conviction of innocent people in the United States’, and that ‘[e]yewitness identification
error was at the heart of the evidence used to convict the vast majority of these innocent
people.’ ” (alterations in original) (quoting Kevin Johnson, States Change Police Line­
ups After Wrongful Convictions, USA TODAY, Sept. 17, 2009)).
       100
            132 S. Ct. 716, 738-39 (2012) (Sotomayor, J., dissenting) (quoting State v.
Henderson, 27 A.3d 872, 885 (N.J. 2011)).
       101
              Id. at 728.
                                            -41-                                        7110

than a live human being who takes the stand, points a finger at the defendant, and says
‘That’s the one!’ ”102
              In sum, we are convinced that the Brathwaite test does not adequately
assess the reliability of eyewitness identifications and thus allows the admission of very
persuasive evidence of doubtful reliability. In the belief that a new approach — based
on a better understanding of the factors affecting the reliability of eyewitness
identifications — will lead to the exclusion of unreliable evidence and thereby reduce the
risk of wrongful convictions, we conclude that breaking away from our long reliance on
the Brathwaite test will do more good than harm.103
                     b.	   The scientific understanding of the factors affecting
                           eyewitness identifications has evolved since Brathwaite.
              The science of human memory developed since Brathwaite shows that
memory does not function like a videotape, on which events are simply stored linearly
to be recalled later in the same linear way.104 Instead, there are three major stages of
memory and recall. First, in the acquisition stage, “the event is perceived by a witness,
and information is entered into the memory system”; second, in the retention stage,
“some time passes before a witness tries to remember the event”; finally, in the retrieval




       102
            Watkins v. Sowders, 449 U.S. 341, 352 (1981) (Brennan, J., dissenting)
(emphasis omitted) (quoting ELIZABETH LOFTUS, EYEWITNESS TESTIMONY 19 (1979)).
       103
               See Henderson, 27 A.3d at 928 (“At the core of our system of criminal
justice is the ‘twofold aim . . . that guilt shall not escape or innocence suffer.’ ”
(alteration in original) (quoting Berger v. United States, 295 U.S. 78, 88 (1935))).
       104
            See ELIZABETH F. LOFTUS       ET AL.,   EYEWITNESS TESTIMONY: CIVIL AND
CRIMINAL § 2:2 (5th ed. 2014).
                                          -42-	                                     7110

stage, “the witness tries to recall the stored information.”105 Eyewitness memory is
malleable, and many factors can affect the reliability of a memory at each stage of the
process of recalling it.106 And as the court of appeals noted in Tegoseak v. State, a
mistaken identification at the beginning of a criminal investigation can “become” the
witness’s memory for purposes of all subsequent identifications; the erroneous picture
displaces the fact.107
              Scientific literature often divides the factors that can affect the reliability
of eyewitness identifications into two categories: “system variables,” which are
manipulable and can be influenced by the criminal justice system (such as the
instructions given a witness during a lineup); and “estimator variables,” which cannot
be influenced by the criminal justice system because they are related to environmental
conditions and personal characteristics (such as the stress of the moment).108 In replacing
the Biggers factors with a list that draws on these two categories of variables, we follow
most closely the New Jersey and Oregon supreme courts’ decisions in State v.




       105
              Id.
       106
             Id.; Steven Penrod et al., The Reliability of Eyewitness Testimony: A
Psychological Perspective, in THE PSYCHOLOGY OF THE COURTROOM 119, 122-46
(Norbert L. Kerr & Robert M. Bray eds., 1982).
       107
              221 P.3d 345, 355 (Alaska App. 2009) (citing Gary L. Wells & Deah S.
Quinlivan, Suggestive Eyewitness Identification Procedures and the Supreme Court’s
Reliability Test in Light of Eyewitness Science: Thirty Years Later, 33 LAW & HUM.
BEHAVIOR 1-24 (2009)).
       108
            Gary L. Wells, Applied Eyewitness–Testimony Research: System Variables
and Estimator Variables, 36 J. PERSONALITY & SOC. PSYCHOL. 1546, 1548 (1978);
IDENTIFYING THE CULPRIT, supra note 81, at 119.
                                            -43-                                       7110

Henderson109 and State v. Lawson.110 Like those courts, we recognize that the science
of eyewitness identifications is “probabilistic”; it cannot say for certain whether any
particular identification is accurate but rather identifies the variables that are relevant to
evaluating the risk of a misidentification.111
                      System Variables
                             i.      Blind administration112
              Was the lineup or photo array administered “blind”?                    When the
administrator of an identification procedure knows who the suspect is, the administrator
may subconsciously affect the reliability of the witness’s identification.113 Such


       109
              27 A.3d 872, 894-910 (N.J. 2011).
       110
              291 P.3d 673, 685-88 (Or. 2012) (en banc).
       111
              See Henderson, 27 A.3d at 894 (“[E]yewitness identification research
remains probabilistic, meaning that science cannot say whether an identification in an
actual case is accurate or not. Instead, science has sought to answer, in the aggregate,
which identification procedures and external variables are tied to an increased risk of
misidentification.”); Lawson, 291 P.3d at 685 (“We recognize that the scientific research
is ‘probabilistic’ — meaning that it cannot demonstrate that any specific witness is right
or wrong, reliable or unreliable, in his or her identification. . . . [But] it is imperative that
law enforcement, the bench, and the bar be informed of the existence of current scientific
research and literature regarding the reliability of eyewitness identification . . . .”).
       112
              See Henderson, 27 A.3d at 896-97; Lawson, 291 P.3d at 686.
       113
              See Lawson, 291 P.3d at 706 (“To guard against [unintentional] influence,
experts recommend that all identification procedures be conducted by a ‘blind’
administrator — a person who does not know the identity of the suspect.”); see also
Sarah M. Greathouse & Margaret Bull Kovera, Instruction Bias and Lineup Presentation
Moderate the Effects of Administrator Knowledge on Eyewitness Identification, 33 LAW
& HUM. BEHAV. 70, 71 (2009) (“[P]olice officers may leak their hypotheses by
consciously or unconsciously communicating to witnesses which lineup member is the
suspect.”).
                                              -44-                                         7110

influences are referred to as “interpersonal expectancy effects”:114 “the tendency for
experimenters to obtain results they expect . . . because they have helped to shape that
response.”115   In the eyewitness identification context, this can occur when the
administrator of a lineup or photo array knows which person is the suspect and,
consciously or not, gives cues to the witness that affect the witness’s choice.116 The
phenomenon is not limited to overt or explicit suggestion; “[e]ven small changes in the
experimenter’s body posture or expression have been shown to affect participants’
responses,” though the witness is often unaware that it is happening.117




      114
            See, e.g., Jacqueline L. Austin et al., Double-Blind Lineup Administration:
Effects of Administrator Knowledge on Eyewitness Decisions, in REFORM OF
EYEWITNESS IDENTIFICATION PROCEDURES 139, 139-40 (Brian L. Cutler, ed. 2013).
      115
               Robert Rosenthal & Donald B. Rubin, Interpersonal Expectancy Effects:
The First 345 Studies, 3 BEHAV. & BRAIN SCI. 377, 377 (1978) (“The overall probability
that there is no such thing as interpersonal expectancy effects is near zero.”). The court
of appeals illustrated this phenomenon in Tegoseak v. State with a description of the
investigation over a hundred years ago into the arithmetical abilities of a trick horse,
“Clever Hans,” who, it was determined, responded to unwitting visual cues from his
master. 221 P.3d 345, 351 n.7 (Alaska App. 2009).
      116
              See Austin et al., supra note 114, at 139-42. “When the administrator
knows the suspect’s identity . . . , the witness may be more likely to choose the suspect
regardless of the suspect’s guilt.” Id. at 142.
      117
              Ryann M. Haw & Ronald P. Fisher, Effects of Administrator-Witness
Contact on Eyewitness Identification Accuracy, 89 J. APPLIED PSYCHOL. 1106, 1110
(2004); see also id. at 1107; Steven E. Clark et al., Lineup Administrator Influences on
Eyewitness Identification Decisions, 15 J. EXPERIMENTAL PSYCHOL.: APPLIED 63, 72-74
(2009).
                                          -45-                                      7110

              To prevent these influences on the identification procedure, studies
recommend that it be administered “blind.”118 “Double-blind administrators do not know
who the actual suspect is. Blind administrators are aware of that information but shield
themselves from knowing where the suspect is located in the lineup or photo array.”119
                            ii.    Pre-identification instructions120
              Was the witness instructed before the identification procedure that the
suspect may or may not be present in the lineup, showup, or array, and that the witness
need not make an identification? A witness’s expectation that a lineup will include the
suspect may affect the identification’s reliability. Studies attest to the phenomenon of
“relative judgment,” in which “the witness seems to be choosing the lineup member who




       118
             See, e.g., Clark, supra note 117, at 74 (noting, however, that “the lineup
administration can influence the outcome even when blind administrator is used”); Haw
& Fisher, supra note 117, at 1110-11; Gary L. Wells et al., Eyewitness Identification
Procedures: Recommendations for Lineups and Photospreads, 22 LAW &HUM. BEHAV.
603, 627-29 (1998).
       119
              State v. Henderson, 27 A.3d 872, 896 (N.J. 2011). Double-blind
administration (where the administrator does not know which subject is the suspect) is
not always a realistic option due to resource constraints and limited personnel. In
Henderson, the New Jersey Supreme Court took note of the “envelope method,” in
which “an officer who knows the suspect’s identity places single lineup photographs into
different envelopes, shuffles them, and presents them to the witness.” Id. at 897. During
the witness’s deliberations, “[t]he officer/administrator then refrains from looking at the
envelopes or pictures while the witness makes an identification.” Id.
       120
             See State v. Lawson, 291 P.3d 673, 706 (Or. 2012) (en banc) (“Studies
show that the likelihood of misidentification is significantly decreased” when witnesses
are given such instructions and “[t]here appears to be little downside to giving [them].”);
see also Henderson, 27 A.3d at 897.
                                           -46-                                      7110

most resembles the witness[’s] memory relative to other lineup members.”121
Accordingly, studies show that misidentification is less likely if the witness is informed
that the suspect might not be in the lineup. For example, two meta-analyses compared
the effect of different instructions in lineups in which the perpetrator was present and
lineups in which he was not.122 Both studies concluded that failing to inform a witness
that the perpetrator might not be present, when the perpetrator in fact was not, led to
more incorrect identifications; that is, a witness tended to select the person who best
resembled the one in the witness’s memory.123 By contrast, one of the studies found that


      121
              Gary L. Wells, The Psychology of Lineup Identifications, 14 J. APPLIED
SOC. PSYCHOL. 89, 92 (1984) (emphasis in original); see also Nancy K. Steblay, Lineup
Instructions, in REFORM OF EYEWITNESS IDENTIFICATION PROCEDURES 65, 74 (Brian L.
Cutler ed., 2013) (summarizing studies) (“One well-documented secondary strategy [of
identification] is relative judgment, that is, the comparison of lineup members with one
another to select the one who looks most like the offender relative to the other lineup
members.” (citing Wells, The Psychology of Lineup Identifications, supra)).
      122
             A “meta-analysis” is “a synthesis of all obtainable data collected in a
specified topical area.” Roy S. Malpass et al., The Need for Expert Psychological
Testimony on Eyewitness Identification, in EXPERT TESTIMONY ON THE PSYCHOLOGY OF
EYEWITNESS IDENTIFICATION 3, 15 (Brian L. Cutler ed., 2009).
      123
              See Steven E. Clark, A Re-Examination of the Effects of Biased Lineup
Instructions in Eyewitness Identification, 29 LAW & HUM. BEHAV. 395, 396-97 (2005);
Nancy Mehrkens Steblay, Social Influence in Eyewitness Recall: A Meta-Analytic
Review of Lineup Instruction Effects, 21 LAW & HUM. BEHAV. 283, 294 (1997)
(summarizing studies and stating that “the available data support the hypothesis that
biased instructions significantly affect eyewitness lineup identification performance”).
The United States Department of Justice made a suggestion for similar instructions in its
1999 research report. U.S. DEP’T OF JUSTICE, NAT’L INST. OF JUSTICE, EYEWITNESS
EVIDENCE: A GUIDE FOR LAW ENFORCEMENT 32 (1999) [hereinafter EYEWITNESS
EVIDENCE]; see also Tegoseak v. State, 221 P.3d 345, 358 (Alaska App. 2009)
(“[Witnesses] tend to select the person who looks most like their memory of the culprit,
even when none of the photos matches their memory exactly.”).
                                          -47-                                      7110

instructing witnesses that the lineup might not contain the perpetrator had “minimal
effect” on identifications when the perpetrator was present;124 the other found that such
instructions increased correct identifications of the perpetrator.125        Both studies
emphasized the context of the latter finding: in the real world, the police may not know
whether a suspect is in fact the perpetrator, and the identification will be affected by a
host of other variables.126 Accordingly, “no good can come from biased instructions.”127
                            iii.	   The composition of lineups and
                                    photographic arrays128
              Were there at least five subjects in the lineup or array besides the suspect?
Did the suspect stand out in any way from the “fillers”? Lineups and photo arrays can
be constructed in ways that affect their reliability. Most obviously, reliability is
compromised if the suspect noticeably stands out from the “fillers” who make up the rest
of the group.129 As a compounding factor, a lineup that suggests a result to the witness


       124	
              Steblay, supra note 123, at 288-89.
       125	
              Clark, supra note 123, at 418.
       126	
              Clark, supra note 123, at 420; Steblay, supra note 123, at 295-96.
       127	
              Clark, supra note 123, at 420.
       128
              See State v. Lawson, 291 P.3d 673, 686 (Or. 2012) (en banc) (“The known-
innocent subjects used as lineup fillers should be selected first on the basis of their
physical similarity with the witness’s description of the perpetrator; if no description of
a particular feature is available, then the lineup fillers should be chosen based on their
similarity to the suspect.”); see also State v. Henderson, 27 A.3d 872, 897-99 (N.J.
2011).
       129
            Roy S. Malpass et al., Lineup Construction and Lineup Fairness, in 2
HANDBOOK OF EYEWITNESS PSYCHOLOGY: MEMORY FOR PEOPLE 155, 156 (Rod C.L.
Lindsay et al. eds., 2007) (“Decades of empirical research suggest that mistaken
                                                                    (continued...)
                                           -48-	                                     7110

may artificially inflate the witness’s confidence in the identification because of its
apparent ease.130
             Courts also conclude, based on the research, that lineups or arrays should
include a minimum number of “fillers” in order to ensure an adequate test of the
witness’s recall and to reduce the chance that an identification is the result of
guesswork.131   Although there is no “magic number” of fillers,132 many sources
recommend a minimum of five per single suspect.133 By the same logic and to reduce the
possibility that a witness will err by guessing, each lineup or photo array should include
only one suspect.134




(...continued)

eyewitness identifications are more likely to occur when the suspect stands out in a

lineup.”).

      130
              See David F. Ross et al., When Accurate and Inaccurate Eyewitnesses Look
the Same: A Limitation of the ‘Pop-Out’ Effect and the 10- to 12-Second Rule, 21
APPLIED COGNITIVE PSYCHOL. 677, 687 (2007); Gary L. Wells & Amy L. Bradfield,
Measuring the Goodness of Lineups: Parameter Estimation, Question Effects, and Limits
to the Mock Witness Paradigm, 13 APPLIED COGNITIVE PSYCHOL. S27, S30 (1999) (“In
short, the task of making an identification from a biased lineup probably appears to be
an easy one, thereby leading the eyewitnesses to be more confident in their decision even
while being more likely to make an error.”).
      131
             See Henderson, 27 A.3d at 898.
      132
             See id. (quoting testimony from Dr. Gary L. Wells).
      133
              See Roy S. Malpass et al., supra note 129, at 157-58; see also EYEWITNESS
EVIDENCE, supra note 123, at 29. In Young’s case, an investigating detective testified
that photo arrays, in his experience, generally include “five other people that look
basically like [the suspect].”
      134
             EYEWITNESS EVIDENCE, supra note 123, at 29.
                                          -49-                                      7110

              There is significant debate about the desirability of sequential identification
procedures — where suspects are viewed one at a time — as opposed to simultaneous
identification procedures, like lineups and photo arrays, where suspects are viewed as a
group. 135 Some scholars believe that the sequential procedure reduces the impact of
“relative judgment,” thereby increasing accuracy.136         Others find this conclusion
premature.137 Current research on simultaneous versus sequential procedures seems
insufficient to preclude either.




       135
             The State points to this difference in its arguments that the science of
eyewitness identifications is inconclusive.
       136
            See, e.g., Nancy Steblay et al., Eyewitness Accuracy Rates in Sequential
and Simultaneous Lineup Presentations: A Meta-Analytic Comparison, 25 LAW &HUM.
BEHAV. 457, 459-60, 462-64, 468 (2001).
       137
              See, e.g., Roy S. Malpass et al., Public Policy and Sequential Lineups, 14
LEGAL & CRIMINOLOGICAL PSYCHOL. 1, 11 (2009) (“Attempts to find alternative
technologies are laudable, and the work on the sequential lineup is pioneering. However,
research has not shown it to be better than what it intends to replace.”); Laura Mickes et
al., Receiver Operating Characteristic Analysis of Eyewitness Memory: Comparing the
Diagnostic Accuracy of Simultaneous Versus Sequential Lineups, 18 J. EXPERIMENTAL
PSYCHOL.: APPLIED 361, 374-75 (2012) (observing that some initial evidence “suggests
that switching from the simultaneous lineup procedure to the sequential lineup procedure
may be moving in the wrong direction [and] [o]nly time will tell whether this ends up
being the typical empirical result”); .
                                            -50-                                       7110

                             iv.    Feedback and recording confidence138
              What feedback, if any, did the witness receive about the identification
procedure from the administrator? What expressions of confidence, if any, did the
witness make at the time of the identification? An administrator’s unconscious cues risk
influencing an eyewitness identification after as well as before the witness has selected
a suspect. Witnesses who receive confirmatory feedback express “significantly more . . .
confidence in their decision compared with participants who received no feedback,”139
and such feedback can lead witnesses to “significantly inflate their reports to suggest
better witnessing conditions at the time of the crime, stronger memory at the time of the
lineup, and sharper memory abilities in general.”140 Studies suggest that confirmatory

       138
              See State v. Henderson, 27 A.3d 872, 899-900 (N.J. 2011) (observing that
because of the malleability of an eyewitness’s confidence level and the effect that
feedback can have on reliability, it is good practice for the administrator of an
identification procedure to make an immediate record of any expression of confidence
by the witness before giving the witness any feedback); State v. Lawson, 291 P.3d 673,
687 (Or. 2012) (en banc).
       139
              Amy Bradfield Douglass & Nancy Steblay, Memory Distortion in
Eyewitnesses: A Meta-Analysis of the Post-Identification Feedback Effect, 20 APPLIED
COGNITIVE PSYCHOL. 859, 863 (2006).
       140
                Id. at 864-65; see also Gary L. Wells & Amy L. Bradfield, “Good, You
Identified the Suspect”: Feedback to Eyewitnesses Distorts Their Reports of the
Witnessing Experience, 83 J. APPLIED PSYCHOL. 360, 374 (1998) (“A confirming­
feedback remark not only inflates eyewitnesses’ recollections of how confident they were
at the time, it also leads them to report that they had a better view of the culprit, that they
could make out details of the face, that they were able to easily and quickly pick him out
of a lineup, that his face just ‘popped out’ to them, that their memorial image of the
gunman is particularly clear, and that they are adept at recognizing faces of strangers.”);
IDENTIFYING THE CULPRIT, supra note 81, at 91 (“The nature of law enforcement
interactions with the eyewitness before, during, and after the identification plays a role
in the accuracy of eyewitness identifications and in the confidence expressed in the
                                                                                (continued...)
                                             -51-                                        7110

feedback has an effect even when it comes 48 hours after an identification,141 and the
effect is powerful across other variables.142
                           v.     Showups143
             Was the witness identified in a showup? A “showup” is an identification
procedure in which a witness is presented with a single suspect and asked if the suspect
is the person who committed the crime.144 Alaska courts have long restricted the use of
showups as an identification procedure to where it is necessary under the
circumstances.145 The problems with showups are apparent: in contrast to lineups and


(...continued)
accuracy of those identifications by witnesses.”); see also Tegoseak v. State, 221 P.3d
345, 356-57 (Alaska App. 2009) (discussing how “the comments of a police investigator
can alter a witness’s perception or memory,” specifically how long they viewed the
perpetrator, how good their view was, how closely they paid attention, and even “their
recollection of their degree of certainty” at the time of the crime (emphasis omitted)).
      141
             Gary L. Wells et al., Distorted Retrospective Eyewitness Reports as
Functions of Feedback and Delay, 9 J. EXPERIMENTAL PSYCHOL.: APPLIED 42, 49-50
(2003).
      142
             See Jeffrey S. Neuschatz et al., The Effects of Post-Identification Feedback
and Age on Retrospective Eyewitness Memory, 19 APPLIED COGNITIVE PSYCHOL. 435,
449 (2005) (describing study in which “the post-identification feedback effect did not
vary with age or retention interval, which indicates how powerful the effect truly is”).
      143
              See Lawson, 291 P.3d at 707-08 (“Showups are widely regarded as
inherently suggestive — and therefore less reliable than properly administered lineup
identifications — because the witness is always aware of who police officers have
targeted as a suspect,” though “some research indicates that, when conducted properly
and within a limited time period immediately following an incident, showups can be
equally as reliable as lineups.”); see also Henderson, 27 A.3d at 902-03.
      144
             See Anderson v. State, 123 P.3d 1110, 1112 (Alaska App. 2005).
      145
             See, e.g., Howe v. State, 611 P.2d 16, 17-18 (Alaska 1980); see also
                                                                    (continued...)
                                           -52-                                    7110

photo arrays, which allow a witness with a faulty memory to pick someone other than
the suspect, every positive identification in a showup implicates the suspect.146 Showups
seemingly provide little protection against witnesses who are inclined to guess, as
witnesses participating in showups tend to base their identifications on clothing.147
Research shows that an innocent suspect who resembles the actual perpetrator is more
likely to be incorrectly identified in a showup than in a lineup.148
              Showups can be reliable when they are conducted immediately after a
crime, when the witness’s memory is freshest; but research shows that the likelihood of
a misidentification increases significantly with showups as little as two hours after the
event.149




(...continued)
Anderson, 123 P.3d at 1116-17 (“As courts have frequently noted, show-ups are
inherently suggestive. . . . [But] in cases where a show-up is necessary, these factors
[indicating suggestiveness] do not, by themselves, make that show-up a violation of the
suspect’s rights under the due process clause.”).
       146
              See Lawson, 291 P.3d at 707-08 (“[B]ecause showups involve a lone
suspect, every witness who guesses will positively identify the suspect, and every
positive identification is regarded as a ‘hit.’ For that reason, misidentifications that occur
in showups are less likely to be discovered as mistakes.”).
       147
            See Jennifer E. Dysart et al., Show-ups: The Critical Issue of Clothing Bias,
20 APPLIED COGNITIVE PSYCHOL. 1009, 1019-21 (2006); see also Nancy Steblay et al.,
Eyewitness Accuracy Rates in Police Showup and Lineup Presentations: A Meta-
Analytic Comparison, 27 LAW & HUM. BEHAV. 523, 538 (2003).
       148
              Steblay et al., supra note 147 at 536-37.
       149
             See A. Daniel Yarmey et al., Accuracy of Eyewitness Identifications in
Showups and Lineups, 20 LAW & HUM. BEHAV. 459, 464-65 (1996) (“[A]fter [two
hours] a one-person lineup was four times as likely to lead to a false identification of the
innocent suspect than if that same suspect was in a six-person lineup . . . .”).
                                            -53-                                        7110

                            vi.    Multiple viewings150
              Was the witness exposed to the suspect after the crime but before making
the identification?151 Did the witness fail to identify the suspect in an earlier procedure?
The reliability of an identification may suffer if the witness has viewed the suspect more
than once during the investigation. This concern arises in part because witnesses
struggle to determine whether their memory comes from their original observation of the
perpetrator or a later one. Studies describe this as “source confusion” or “source
monitoring” error.152 It arises in a number of different contexts.
              For example, “mugshot exposure” occurs when a witness is repeatedly
exposed to a suspect’s photograph. The witness may fail to identify the suspect on the
first presentation but on the second will recognize the photo; including the same photo
in a second presentation can thus raise the risk of misidentification.153 A similar effect,
“mugshot commitment,” occurs when a witness identifies a suspect from a photograph
and the same photograph is included in a later identification procedure; studies show that




       150
              See State v. Henderson, 27 A.3d 872, 900-01 (N.J. 2011) (holding that due
to the negative effects that can result from multiple viewings, “law enforcement officials
should attempt to shield witnesses from viewing suspects or fillers more than once”);
Lawson, 291 P.3d at 686-87.
       151
             It is only exposure through state action that would constitute a “system
variable” for purposes of the trial court’s analysis of admissibility. Other exposures
would be “estimator variables.”
       152
             E.g., Kenneth A. Deffenbacher et al., Mugshot Exposure Effects:
Retroactive Interference, Mugshot Commitment, Source Confusion, and Unconscious
Transference, 30 LAW & HUM. BEHAV. 287, 289 (2006).
       153
              Id. at 299.
                                           -54-                                       7110

in this circumstance the witness is more likely to remain “committed” to the suspect
originally selected even if the identification was incorrect.154
                     Estimator Variables
                            i.      Stress 155
              Did the witness view the perpetrator under particularly stressful
conditions? Stress is one of the so-called “estimator variables” — variables that are
intrinsic to the event or the witness and not subject to later manipulation. The level of
stress a witness experiences at the time of the crime may affect the accuracy of a later
identification.156 While the science shows that moderate levels of stress can help improve
accuracy of perception, it also shows that high levels of stress can negatively affect the
accuracy of both the witness’s identification of the suspect and the witness’s memory of
other details of the crime.157 Acknowledging the “negative effect of stress on the


       154
             See id. at 290-91; Gunter Koehnken et al., Forensic Applications of
Line-Up Research, in PSYCHOLOGICAL ISSUES IN EYEWITNESS IDENTIFICATION 205, 219
(Siegfried Ludwig Sporer et al. eds., 1996).
       155
               See Henderson, 27 A.3d at 904 (“[H]igh levels of stress are likely to affect
the reliability of eyewitness identifications. There is no precise measure for what
constitutes ‘high’ stress, which must be assessed based on the facts presented in
individual cases.”); Lawson, 291 P.3d at 687.
       156
               See, e.g., IDENTIFYING THE CULPRIT, supra note 81, at 94 (“High levels of
stress or fear can affect eyewitness identification. . . . Under conditions of high stress,
a witness’ ability to identify key characteristics of an individual’s face (e.g., hair length,
hair color, eye color, shape of face, presence of facial hair) may be significantly
impaired.”).
       157
             Kenneth A. Deffenbacher et al., A Meta-Analytic Review of the Effects of
High Stress on Eyewitness Memory, 28 LAW & HUM. BEHAV. 687, 699, 703 (2004)
(finding “considerable support for the hypothesis that high levels of stress negatively
impact both accuracy of eyewitness identification as well as accuracy of recall of crime­
                                                                           (continued...)
                                            -55-                                        7110

reliability of eyewitness identifications” may help jurors counteract the “common
misconception that faces seen in highly stressful situations can be ‘burned into’ a
witness’s memory.”158
                            ii.    Weapons focus159
              Was a weapon, or another unusual or distracting object, visible during the
time the witness was viewing the perpetrator? When an extraordinary detail captures a
witness’s attention, the witness’s ability to perceive other details may be compromised,
undermining the reliability of an identification.160 The “weapons focus effect” is one “in
which witnesses who observe a criminal with a visible weapon tend to remember less
about the criminal’s physical features and clothing than do witnesses who see the



(...continued)
related details”); Charles A. Morgan III et al., Accuracy of Eyewitness Memory for
Persons Encountered During Exposure to Highly Intense Stress, 27 INT’L J.L. &
PSYCHIATRY 265, 274-75 (2004) (finding that data “provide[d] robust evidence that
eyewitness memory for persons encountered during events that are personally relevant,
highly stressful, and realistic in nature may be subject to substantial error”); see
Tegoseak v. State, 221 P.3d 345, 355 (Alaska App. 2009) (“[T]he witness will often
grossly over-estimate the amount of time the perpetrator was in their view — especially
if the witness was under stress or anxiety at the time [the witness] observed the events.”).
       158
              Lawson, 291 P.3d at 701.
       159
              See Henderson, 27 A.3d at 904-05 (“When a visible weapon is used during
a crime, it can distract a witness and draw his or her attention away from the culprit.”);
see also Commonwealth v. Gomes, 22 N.E.3d 897, 920 & n.7 (Mass. 2015).
       160
              See Gary L. Wells & Deah S. Quinlivan, Suggestive Eyewitness
Identification Procedures and the Supreme Court’s Reliability Test in Light of
Eyewitness Science: 30 Years Later, 33 LAW & HUM. BEHAV. 1, 10-12 (2009); see also
IDENTIFYING THE CULPRIT, supra note 81, at 93 (“The presence of an unusual object at
the scene of a crime can impair visual perception and memory of key features of the
crime event.”).
                                           -56-                                       7110

criminal either empty-handed or with a neutral object.”161 While the effect may be small,
one study found it noteworthy.162 The weapons focus effect may interact with other
variables, such as a short duration of view (addressed below), to make an identification
even less reliable.163 And studies demonstrate that even objects that are nonthreatening
but incongruous — such as a stalk of celery — can have the same distracting effect.164
                           iii.   Duration of view165
             How long was the witness able to see the perpetrator? While there is no
minimum amount of time necessary for a witness’s observation of a suspect to result in
an accurate identification, longer viewings are more likely to lead to accurate
identifications.166 Relatedly, however, studies show that witnesses tend to overestimate

      161
            Kerri L. Pickel, Remembering and Identifying Menacing Perpetrators:
Exposure to Violence and the Weapon Focus Effect, in 2 HANDBOOK OF EYEWITNESS
PSYCHOLOGY: MEMORY FOR PEOPLE 339, 347-53 (Rod C.L. Lindsay et al. eds., 2007).
      162
             See Nancy Mehrkens Steblay, A Meta-Analytic Review of the Weapon
Focus Effect, 16 LAW & HUM. BEHAV. 413, 415-17, 420-21 (1992) (noting average
decrease in accuracy of about 10% in weapon-present conditions over weapon-absent
conditions).
      163
              See id. at 421 (“[S]ituations in which a witness observes a threatening
object play a central role in an event of short duration.”).
      164
             See Pickel, supra note 161, at 353-54 (discussing studies).
      165
             See State v. Lawson, 291 P.3d 673, 687 (Or. 2012) (en banc) (“Longer
durations of exposure (time spent looking at the perpetrator) generally result in more
accurate identifications.”); see also State v. Henderson, 27 A.3d 872, 905 (N.J. 2011).
      166
             See IDENTIFYING THE CULPRIT, supra note 81, at 97-98 (noting that meta­
analyses “have found that relatively long exposure durations produce greater accuracy”);
Colin Tredoux et al., Eyewitness Identification, in 1 ENCYCLOPEDIA OF APPLIED
PSYCHOL. 875, 877 (Charles Spielberger ed., 2004) (“The duration of the witness’s
exposure to the offender is related to later recognition performance, such that limiting
                                                                          (continued...)
                                          -57-                                     7110

the amount of time they had to view an incident, especially if conditions were stressful
or involved other stimuli.167
                            iv.    Environmental conditions of view168
              What environmental conditions, such as distance and lighting, may have
affected the witness’s ability to view the perpetrator? Environmental conditions under
which a witness views a perpetrator have an effect on the reliability of the identification.
For example, a witness’s identification will be less reliable when the perpetrator is seen
from farther away or under worse lighting conditions; studies have examined these
effects.169 People have difficulty estimating distances, which makes self-reports of
proximity somewhat suspect.170 Other factors, such as weather conditions, can affect a
witness’s ability to perceive. And as with other variables, environmental factors interact
with others: for example, studies demonstrate that witnesses who received confirmatory


(...continued)

exposure time generally reduces witness accuracy.”).

       167
              See Elizabeth F. Loftus et al., Time Went by So Slowly: Overestimation of
Event Duration by Males and Females, 1 APPLIED COGNITIVE PSYCHOL.3, 10-12 (1987);
A. Daniel Yarmey, Retrospective Duration Estimations for Variant and Invariant Events
in Field Situations, 14 APPLIED COGNITIVE PSYCHOL. 45, 52-53 (2000).
       168
              See Lawson, 291 P.3d at 687 (“The basic environmental conditions of
distance and lighting, combined with any aspect of the viewing environment — fog,
heavy rain or other weather conditions, cracked or dirty windows, glare, reflection,
shadow, or even physical obstructions within the witness’s line of sight — can
potentially impair an eyewitness’s ability to clearly view an event or a perpetrator.”); see
also Henderson, 27 A.3d at 906.
       169
            See, e.g., R.C.L. Lindsay et al., How Variations in Distance Affect
Eyewitness Reports and Identification Accuracy, 32 LAW & HUM. BEHAV. 526, 526-28,
532-35 (2008).
       170
              Id. at 533.
                                           -58-                                       7110

feedback may report that the viewing conditions were more favorable than they actually
were, meaning that self-reporting may become both more confident and less reliable over
time.171
                            v.     Witness characteristics172
              Were there any characteristics of the witness, such as mental and physical
health, age, vision, or alcohol or drug use, that may have compromised the witness’s
ability to see and identify the perpetrator? The witness’s own personal characteristics
affect the accuracy of an identification. Physical and mental condition and visual acuity
are relevant, but there are other factors as well, such as alcohol impairment173 and age —
especially for the elderly and the very young.174


       171
              See Wells & Bradfield, supra note 140, at 372-75.
       172
              See Lawson, 291 P.3d at 687 (“Although different witnesses and fact
patterns may implicate different variables, some common variables that affect the ability
to perceive and remember include visual acuity, physical and mental condition (illness,
injury, intoxication, or fatigue), and age.”); see also Henderson, 27 A.3d at 906.
       173
              See Jennifer E. Dysart et al., The Intoxicated Witness: Effects of Alcohol on
Identification Accuracy from Showups, 87 J. APPLIED PSYCHOL. 170, 174 (2002)
(finding, perhaps not surprisingly, that intoxicated witnesses were “more likely than
sober [witnesses] to make a false identification from a target-absent showup”).
       174
               See James C. Bartlett & Amina Memon, Eyewitness Memory in Young and
Older Adults, in 2 HANDBOOK OF EYEWITNESS PSYCHOLOGY:MEMORY FOR PEOPLE 309,
332-34 (Rod C.L. Lindsay et al. eds., 2007) (explaining that though older eyewitnesses
generally have less accurate identifications, the effect may be absent, or even reversed,
for highly educated and verbally skilled seniors or those under the age of 70); Joanna D.
Pozzulo & R.C.L. Lindsay, Identification Accuracy of Children Versus Adults: A
Meta-Analysis, 22 LAW & HUM. BEHAV. 549, 563-65 (1998). Research also suggests
that the relative ages of the witness and the target of the identification may also matter,
finding that young witnesses are better at identifying young targets than older targets.
Bartlett & Memom, supra, at 321-26; Melissa Boyce et al., Belief of Eyewitness
                                                                             (continued...)
                                           -59-                                      7110

                            vi.    Perpetrator characteristics175
              Was the perpetrator disguised or otherwise difficult to describe? Has the
suspect’s appearance changed since the crime? The characteristics of the perpetrator
also affect the reliability of eyewitness identification. Witnesses are better at identifying
individuals with distinctive facial features than those without.176 As one would expect,
studies show that disguises reduce the accuracy of identifications.177 Masks, sunglasses,
hats, hoods, and other things that hide the hair and hairline affect witnesses’ ability to
accurately identify a perpetrator.178 And changes in the perpetrator’s appearance between
the time of the incident and the time of the identification (growing a beard, for example)
may do the same.179




(...continued)
Identification Evidence, in 2 HANDBOOK OF EYEWITNESS PSYCHOLOGY: MEMORY FOR
PEOPLE 501, 512 (Rod C.L. Lindsay et al. eds., 2007) (“People are better at identifying
those who are closer to them in age[]. . . . [Thus,] [p]erhaps people should only use age
as a factor in deciding whether to believe an eyewitness if there is a large age difference
between the witness and the suspect.”).
       175
              See Henderson, 27 A.3d at 907; Lawson, 291 P.3d at 688.
       176
              See Peter N. Shapiro & Steven Penrod, Meta-Analysis of Facial
Identification Studies, 100 PSYCHOL. BULL. 139, 145 (1986) (“[D]istinctive targets [are]
easier to recognize than ordinary looking targets.”).
       177
            Brian L. Cutler et al., Improving the Reliability of Eyewitness Identification:
Putting Context into Context, 72 J. APPLIED PSYCHOLOGY 629, 635 (1987).
       178
             See, e.g., Brian L. Cutler, A Sample of Witness, Crime, and Perpetrator
Characteristics Affecting Eyewitness Identification Accuracy, 4 CARDOZO PUB.L.POL’Y
& ETHICS J. 327, 332 (2006).
       179
          K.E. Patterson & A.D. Baddeley, When Face Recognition Fails, 3 J.
EXPERIMENTAL PSYCHOL.: HUM. LEARNING & MEMORY 406, 410, 414 (1977).
                                            -60-                                       7110

                            vii.    Race and ethnicity bias180
              Are the witness and the perpetrator of different races or ethnicities?
Research also convincingly demonstrates that witnesses are much more likely to
accurately identify members of their own race or ethnicity than members of others, and
that eyewitness identification is therefore likely to be less reliable if witness and
perpetrator are of different races.181
                            viii.   Memory decay/retention interval182
              How much time passed between the crime and the identification procedure?
Research has not identified a precise time after which a witness’s identification is
unreliable, but the more time that passes between the initial confrontation and the
identification, the more reliability suffers.183 And studies show that memory decay is




       180
              See Henderson, 27 A.3d at 907; Lawson, 291 P.3d at 688.
       181
               IDENTIFYING THE CULPRIT, supra note 81, at 96 (“The race and ethnicity of
a witness as it relates to that of the perpetrator is another important estimator variable.”);
see generally Christian A. Meissner & John C. Brigham, Thirty Years of Investigating
the Own-Race Bias in Memory for Faces: A Meta-Analytic Review, 7 PSYCHOL., PUB.
POL’Y, & L. 3, 4-13, 27 (2001) (concluding that, because own-race bias presents a
significant risk of false identifications, the issue is of “great practical importance”).
       182
               See Lawson, 291 P.3d at 705 (“Estimating the effect of memory
decay . . . turns in large part on the strength and quality of the initial memory
encoded . . . . Consequently, memory decay must be viewed in conjunction with other
variables, such as cross-racial identification, weapon-focus, degree of attention, distance,
lighting, and duration of initial exposure.”); see also Henderson, 27 A.3d at 907.
       183
              Kenneth A. Deffenbacher et al., Forgetting the Once-Seen Face: Estimating
the Strength of an Eyewitness’s Memory Representation, 14 J.EXPERIMENTAL PSYCHOL:
APPLIED 139, 142 (2008) (“[M]emory strength will be weaker at longer retention
intervals than at briefer ones.”).
                                            -61-                                        7110

exponential rather than linear; that is, an eyewitness’s memory vanishes more rapidly as
time goes by.184
                           ix.   Co-witnesses185
             Did the witness discuss the identification or receive information about the
suspect from co-witnesses or other non-state actors? The actions of third parties, like
those of law enforcement personnel, can affect the reliability of eyewitness
identifications.186 Studies show that feedback from other witnesses can influence a
witness’s memory of an event and that such feedback can cause witnesses to form false




      184
              See, e.g., IDENTIFYING THE CULPRIT, supra note 81, at 98 (“[T]he amount
of time that passes from the initial observation and encoding of a memory to a future
time when the initial observation must be recalled from memory[] can affect
identification accuracy.”); Deffenbacher, supra note 183, at 147-48 (describing findings
of a “meta-analysis of 53 facial memory studies”).
      185
             See Henderson, 27 A.3d at 907-09 (citing studies showing that “[c]o­
witness feedback may cause a person to form a false memory of details that he or she
never actually observed.”).
      186
              See Elin M. Skagerberg, Co-Witness Feedback in Line-Ups, 21 APPLIED
COGNITIVE PSYCHOL. 489, 494-95 (2007); see also IDENTIFYING THE CULPRIT, supra
note 81, at 93.
                                         -62-                                     7110

memories of details.187 Further, feedback from other witnesses delivered indirectly —
through a third party — can influence the reliability of an identification.188
                                          ***
             This evolved understanding of the factors affecting eyewitness
identifications shows convincingly that the Brathwaite test does not adequately assess
reliability. First, though purporting to test reliability, the Brathwaite test does not
consider many of the factors now known to affect it; the test relies primarily on the five
Biggers factors, which include “the opportunity of the witness to view the criminal at the
time of the crime, the witness’ degree of attention, the accuracy of his prior description
of the criminal, the level of certainty demonstrated at the confrontation, and the time
between the crime and the confrontation.”189 While the State argues that this list is not
exclusive and while some other courts have noted other factors,190 we are directed to no




      187
            Helen M. Paterson & Richard I. Kemp, Comparing Methods of
Encountering Post-Event Information: The Power of Co-Witness Suggestion, 20 APPLIED
COGNITIVE PSYCHOL. 1083, 1095-98 (2006); John S. Shaw, III et al., Co-Witness
Information Can Have Immediate Effects on Eyewitness Memory Reports, 21 LAW &
HUM. BEHAV. 503, 516-18 (1997); Rachel Zajac & Nicola Henderson, Don’t It Make My
Brown Eyes Blue: Co-Witness Misinformation About a Target’s Appearance Can Impair
Target-Absent Line-up Performance, 17 MEMORY 266, 275-77 (2009).
      188
             See Paterson & Kemp, supra note 187, at 1097-98; Shaw, supra note 187,
at 518-21.
      189
            Manson v. Brathwaite, 432 U.S. 98, 114 (1977) (discussing Neil v. Biggers,
409 U.S. 188, 199-200 (1972)).
      190
            See Suzannah B. Gambell, The Need to Revisit the Neil v. Biggers Factors:
Suppressing Unreliable Eyewitness Identifications, 6 WYO. L. REV. 189, 207-14 (2006)
(summarizing jurisdictions examining factors in addition to the five Biggers factors
under Brathwaite).
                                           -63-                                     7110

appellate decision in Alaska that has relied on any factors other than the listed five.191
Adhering to the Brathwaite test means that trial courts are unlikely to consider many
system and estimator variables now known to affect the reliability of eyewitness
identifications.
              Second, three of the five Biggers factors used in the Brathwaite test — the
witness’s degree of attention, opportunity to view, and level of certainty — rely on the
witness’s own subjective perceptions.192 But many factors affect the accuracy of self-
reporting, as discussed above, and witnesses may be unaware of them. The Brathwaite
test is weakened by its heavy dependence on self-reporting with no means of gauging
that reporting’s reliability.193
              With respect to an eyewitness’s level of certainty, the relationship between
certainty and accuracy is not straightforward and is significantly affected by other
characteristics of both the identification and the witness.194 As discussed above, an


       191
              See, e.g., Walker v. State, 652 P.2d 88, 95 (Alaska 1982); Vessell v. State,
624 P.2d 275, 279 (Alaska 1981); Howe v. State, 611 P.2d 16, 18 (Alaska 1980); Holden
v. State, 602 P.2d 452, 456 (Alaska 1979); Young v. State, 331 P.3d 1276, 1280-81
(Alaska App. 2014); White v. State, 773 P.2d 211, 215 (Alaska App. 1989); Dunbar v.
State, 677 P.2d 1275, 1278 (Alaska App. 1984); State v. Contreras, 674 P.2d 792, 820
(Alaska App. 1983), rev’d on other grounds sub nom. Contreras v. State, 718 P.2d 129
(Alaska 1986).
       192
               Wells & Quinlivan, supra note 160, at 9 (explaining that “[p]sychological
scientists are highly skeptical of [subjective] retrospective self-reports because of well-
known tendencies for such reports being at odds with objective facts”).
       193
              See id. (“At another level, psychological scientists find it somewhat odd
that an eyewitness, whose credibility as a witness is being assessed, would be asked to
report on his or her own credibility.”).
       194
           See Gary L. Wells & Elizabeth A. Olson, Eyewitness Testimony, 54 ANN.
REV. PSYCHOL. 277, 283-84 (2003).
                                           -64-                                      7110

eyewitness’s certainty can be increased by feedback from law enforcement personnel or
other witnesses;195 and studies show that “[t]his certainty-inflation effect is greater for
eyewitnesses who make mistaken identifications than it is for those who make accurate
identifications, resulting in a significant loss in the certainty-accuracy relation.”196 This
is additionally problematic because eyewitnesses’ certainty in their identifications may
be of great weight to jurors,197 who, like the witnesses themselves, are not likely to be
aware of the factors that can affect the relationship between confidence and accuracy.198




       195
              See supra Section IV.A.3.b.viii.
       196
              Wells & Olson, supra note 194, at 283; see also Amy L. Bradfield et al.,
The Damaging Effect of Confirming Feedback on the Relation Between Eyewitness
Certainty and Identification Accuracy, 87 J. APPLIED PSYCHOL. 112, 117 (2002) (“Our
results indicate that confirming feedback significantly diminishes the strength of the
certainty-accuracy relation, thereby reducing the usefulness of retrospective certainty
reports as cues to identification accuracy. The strength of the certainty-accuracy relation
was diminished because confirming feedback inflated the retrospective certainty reports
of inaccurate witnesses but not the reports of accurate witnesses.”).
       197
              See Michael R. Leippe et al., Cueing Confidence in Eyewitness
Identifications: Influence of Biased Lineup Instructions and Pre-Identification Memory
Feedback Under Varying Lineup Conditions, 33 LAW & HUM. BEHAV. 194, 194 (2009)
(summarizing studies and concluding that, “[a]mong other insights, several conclusions
may be drawn from the research,” including that “factfinders tend to overestimate the
accuracy of eyewitnesses who express confidence in their identifications”).
       198
             See Tanja Rapus Benton et al., Eyewitness Memory Is Still Not Common
Sense: Comparing Jurors, Judges and Law Enforcement to Eyewitness Experts, 20
APPLIED COGNITIVE PSYCHOL.115, 119-20 (2006) (concluding that “large discrepancies
between juror and expert knowledge were found for . . . the accuracy-confidence
relation,” among other factors, and that only 50% of jurors were aware of the malleability
of confidence as a factor affecting eyewitness identifications).
                                            -65-                                       7110

             The science also shows that a highly suggestive procedure can reinforce a
mistaken identification in a witness’s mind.199 As described above, factors contributing
to a finding of unnecessary suggestiveness could themselves make identifications
unreliable by giving witnesses an artificially inflated belief in the accuracy of their
erroneous identifications.200 Because the Brathwaite test assesses reliability only after
the defendant has shown that the procedure was unnecessarily suggestive, the test could
have the perverse effect of making it more likely an improperly suggestive identification
procedure will be found reliable and admissible, because the suggestiveness itself has
made the witness more certain.201
                    c.	    The new test, consistent with the due process clause of
                           Alaska’s constitution, for determining the admissibility of
                           eyewitness identification evidence affected by suggestive
                           state procedures
             Young argues that we should adopt a rule of per se exclusion for eyewitness
identifications that are affected by system variables, that is, those that are subject to
influence by the State. He argues that this approach will better deter improper police
practices and protect defendants’ constitutional rights. While per se exclusion would
result in the greatest protection against the effects of unreliable eyewitness
identifications, we agree with the State that a rule of per se exclusion, “requir[ing]
suppression of reliable evidence any time a law enforcement officer missteps,”202 goes
too far. We have rejected such a rule in the past, “both because it runs counter to the


      199
             See Wells & Quinlivan, supra note 160, at 9-14.

      200
             See id. at 16-17.

      201
              See id.; Tegoseak v. State, 221 P.3d 345, 356-57 (Alaska App. 2009)

(noting the same analytical flaw).
      202
             See State v. Henderson, 27 A.3d 872, 878 (N.J. 2011).
                                          -66-	                                    7110

clear weight of authority in Alaska and the federal system, and because it results in the
unnecessary exclusion of much reliable evidence.”203
              Instead, the test we announce today acknowledges the evolution in our
understanding of factors that affect the reliability of eyewitness identifications, thereby
protecting defendants’ rights to due process under the Alaska Constitution, while at the
same time taking into account law enforcement’s need for eyewitness evidence. It
closely follows the framework set out by the Supreme Court of New Jersey in State v.
Henderson.204
              First, to be entitled to an evidentiary hearing on the issue, the defendant
must present “some evidence of suggestiveness that could lead to a mistaken
identification.”205 This proffer must “be tied to a system — and not an estimator —
variable,”206 consistent with the principle of due process law that only state action
triggers constitutional protections.207 We emphasize that a defendant need not show that
a procedure was “unnecessarily suggestive” in order to get a hearing; that the
identification involved a system variable is itself enough to trigger that process.




       203
              See Viveros v. State, 606 P.2d 790, 792 n.1 (Alaska 1980).

       204
              27 A.3d at 919-22.

       205
              Id. at 920.

       206
              Id.

       207
              See Nichols v. Eckert, 504 P.2d 1359, 1362 (Alaska 1973) (“For [the due
process] clause to apply there must be state action and the deprivation of an individual
interest of sufficient importance to warrant constitutional protection.”).
                                           -67-                                       7110

              At the hearing the State must present evidence that the identification is
nonetheless reliable.208 The superior court’s ensuing analysis of reliability should
consider all relevant system and estimator variables under the totality of the
circumstances.209 Although the variables to consider include those discussed above, we
emphasize that the list is non-exclusive; the scientific understanding of eyewitness
memory continues to evolve.210 Because of this, trial courts should not hesitate to take
expert testimony that explains, supplements, or challenges the application of these
variables to different fact situations.
              Although the defendant must only identify a relevant system variable in
order to obtain a hearing, the defendant retains the burden of proving at that hearing a
“very substantial likelihood of irreparable misidentification.”211 If the defendant meets
this burden, the trial court should suppress the evidence — both the pretrial identification
and any subsequent in-court identification by the witness.212 If the defendant does not
meet the burden, however, the court should admit the evidence and provide the jury with
an instruction appropriate to the context of the case, which we discuss in greater detail
below.213



       208
              See Henderson, 27 A.3d at 920.

       209
              Id.

       210
               Id. at 922 (“We recognize that scientific research relating to the reliability
of eyewitness evidence is dynamic; the field is very different today than it was in 1977,
and it will likely be quite different thirty years from now.”).
       211
              Id. at 920.
       212
              Id.
       213
              See id.
                                            -68-                                       7110

              “Of course, nothing has altered the State’s burden of proving at trial the
identity of the accused as the person who committed the charged offense beyond a
reasonable doubt.”214
              4.	    Jury instructions should take into account this new test for the
                     reliability of eyewitness identifications.
              If eyewitness identification is a significant issue in a case, the trial court
should issue an appropriate jury instruction that sets out the relevant factors affecting
reliability. The Supreme Court in Perry v. New Hampshire, though retaining the
Brathwaite test, took “account of other safeguards built into our adversary system that
caution juries against placing undue weight on eyewitness testimony of questionable
reliability,” noting especially “[e]yewitness-specific jury instructions, which many
federal and state courts have adopted, . . . [that] warn the jury to take care in appraising
identification evidence.”215 We agree that jury instructions specific to eyewitness
identifications are necessary for the jury’s proper understanding of the issue.
              While it is “the province of the jury to determine credibility of
witnesses,”216 “the reliability of eyewitness identifications frequently is not a matter
within the knowledge of an average juror.”217 Many of the factors that affect reliability
“are counterintuitive and, therefore, not coterminous with ‘common sense.’ ”218 “Thus,

       214
              State v. Henderson, 77 A.3d 536, 544-45 (N.J. Super. Ct. App. Div. 2013).

       215
              132 S. Ct. 716, 728-29 (2012) (internal citations omitted).

       216
              Galauska v. State, 532 P.2d 1017, 1018 (Alaska 1975).

       217
              State v. Guilbert, 49 A.3d 705, 731 (Conn. 2012).

       218
               Young v. Conway, 698 F.3d 69, 79 (2d Cir. 2012) (noting, as factors

affecting reliability, “the perpetrator’s wearing a disguise, the presence of a weapon, the
stress of the situation, the cross-racial nature of the crime, the passage of time between
                                                                              (continued...)
                                           -69-	                                      7110

while science has firmly established the ‘inherent unreliability of human perception and
memory,’ this reality is outside ‘the jury’s common knowledge,’ and often contradicts
jurors’ ‘commonsense’ understandings.”219
              We refer the issue of eyewitness-specific jury instructions to the Criminal
Pattern Jury Instructions Committee and ask that it draft a model instruction appropriate
for use in future cases, consistent with the principles we announce today.
       B.	    It Was Error Not To Give A Specific Jury Instruction On The
              Reliability Of Eyewitness Identifications, But The Error Was
              Harmless.
              Young argues that the superior court erred when it refused to give a jury
instruction specific to the reliability of eyewitness identifications. Although trial courts
are generally constrained to apply the law as it is rather than the law as they believe it
should be, we agree that such an instruction should have been given in Young’s case.
              Alaska Rule of Criminal Procedure 30(b) states that “[t]he court shall
instruct the jury on all matters of law which it considers necessary for the jury’s
information in giving their verdict”; “[w]hether or not a requested jury instruction should
be given lies in the discretion of the trial court.”220 “ ‘[A]s long as the instructions
actually given by the trial court adequately set forth the applicable law, a more elaborate




       218
          (...continued)
observation and identification, and the witness’s exposure to defendant through multiple
identification procedures”).
       219
            United States v. Brownlee, 454 F.3d 131, 142 (3d Cir. 2006) (quoting
Rudolf Koch, Note, Process v. Outcome: The Proper Role of Corroborative Evidence
in Due Process Analysis of Eyewitness Identification Testimony, 88 CORNELL L. REV.
1097, 1099 n.7 (2003)).
       220	
              Snyder v. State, 930 P.2d 1274, 1280 (Alaska 1996).
                                           -70-	                                      7110

explanation of the defendant’s theory of the case’ is not required unless it ‘would
substantially aid the jury in arriving at a just verdict.’ ”221
              At trial, Young proposed two jury instructions specific to eyewitness
evidence. The first discussed the burden of proof on identity and summarized factors
other courts have found to affect the reliability of eyewitness identifications, including
reference to the court of appeals’ opinion in Tegoseak v. State.222 The second proposed
instruction was modeled after one approved by the United States Court of Appeals for
the District of Columbia Circuit in United States v. Telfaire.223 The superior court
declined to give either instruction. It found that Tegoseak was not controlling because
its summary of the factors affecting the reliability of eyewitness identifications was dicta,
that Young’s draft instruction was “more argument than . . . a proposition of law,” and
that the proposed instruction would be redundant since the pattern instructions discuss
the burden of proof and witness credibility generally. The superior court refused to give
the Telfaire instruction for the same reasons. In affirming these rulings, the court of
appeals relied on its prior decisions in which it had “affirmed convictions where the trial
court gave the pattern instruction instead of a more focused instruction on eyewitness
identification.”224



       221
             Robart v. State, 82 P.3d 787, 795 (Alaska App. 2004) (alteration omitted)
(quoting Lee v. State, 760 P.2d 1039, 1041 (Alaska App. 1988)).
       222
              221 P.3d 345 (Alaska App. 2009).
       223
              469 F.2d 552, 558-59 (D.C. Cir. 1972).
       224
              Young v. State, 331 P.3d 1276, 1281 (Alaska App. 2014) (citing McGee v.
State, 614 P.2d 800, 804 (Alaska 1980); Dayton v. State, 598 P.2d 67, 68 (Alaska 1979);
Larson v. State, 656 P.2d 571, 575-76 (Alaska App. 1982); Williams v. State, 652 P.2d
478, 480 (Alaska App.1982)).
                                             -71-                                      7110

              The principle cited by the court of appeals originated in a 1977 opinion,
Buchanan v. State.225 In Buchanan, a defendant was charged with attempted sexual
abuse of a minor, and the victim identified him in a pretrial lineup.226 The superior court
instructed the jury “that the state ha[d] the burden of proving accurate identification
beyond a reasonable doubt,” rejecting the defendant’s requested instruction that went
“beyond the court’s instruction in that it focuse[d] attention on possible inadequacies of
a witness’ identification, such as the time intervening, the opportunity for the witness to
observe in the first instance, and possible external influences on the witness’
testimony.”227 We found no error in the court’s decision because the instruction “given
by the court embodied correct statements of the controlling law on the subject of
identification.”228
              As described above, however, the understanding of the factors affecting the
reliability of eyewitness identifications has evolved significantly since Buchanan229 in
ways that are “largely unfamiliar to the average person, and, in fact, many . . . are
counterintuitive.”230 We can no longer say with confidence that the pattern witness




       225
              561 P.2d 1197 (Alaska 1977).
       226
              See id. at 1200. At the time, the statute defined the crime as “lewd and
lascivious acts toward a child.” Id. at 200 (citing former AS 11.15.134).
       227
              Id. at 1207.
       228
              Id.
       229
            Buchanan was decided in March 1977. 561 P.2d at 1197. The United
States Supreme Court decided Manson v. Brathwaite three months later. See 432 U.S.
98 (1977).
       230
              State v. Guilbert, 49 A.3d 705, 723 (Conn. 2012).
                                           -72-                                      7110

credibility instruction is adequate to explain the potential unreliability of eyewitness
identifications.
              Furthermore, eyewitness identification was a significant issue in Young’s
case: he presented an alibi defense, and the State countered with eyewitnesses who
claimed to have seen him behind the wheel of the shooters’ vehicle. Young challenged
the admissibility of two of the identifications. And the State’s closing argument relied
heavily on the eyewitnesses’ testimony.
              In these circumstances, an instruction alerting the jury to the potential
fallibility of eyewitness identifications was “necessary for the jury’s information in
giving their verdict.”231 And while it is true that the instructions Young proposed were
“not perfect statements of Alaska law in this area,” they “certainly sufficed to draw the
matter . . . to the judge’s attention.”232
              We cannot say, however, that the failure to give Young’s requested jury
instructions “appreciably affect[ed] the verdict” against him.233 First, the State’s case did
not rest on identification by a single witness; the State presented three independent
witnesses with different perspectives and no apparent connections to each other,
including one who had known Young before the crime.


       231
              Alaska R. Crim. P. 30(b).
       232
              Des Jardins v. State, 551 P.2d 181, 189 (Alaska 1976).
       233
               Evans v. State, 574 P.2d 24, 25-26 (Alaska 1978) (holding that failure to
give informer instruction was harmless). Young contends that “[i]n certain cases,
focused instructions on how to evaluate eyewitness identification evidence are necessary
to safeguard the presumption of innocence,” citing United States v. Telfaire, 469 F.2d
552, 555 (D.C. Cir. 1972). While we agree with Young’s premise, this is not such a
case. Telfaire dealt with “the uncorroborated testimony of a single witness.” Id. at 554.
In this case, given the other eyewitnesses and corroborating evidence, the error in failing
to give an eyewitness identification instruction was not of constitutional dimension.
                                             -73-                                      7110

              Second, in jury voir dire, cross-examination, and closing arguments,
Young’s attorneys raised and emphasized many of the concerns that would have been
addressed by the proposed instructions.234 In addition to criticizing the individual
identifications specifically, Young’s attorneys addressed a number of system and
estimator variables, including the possibility that suggestion by law enforcement officers
could result in a sincerely believed but false memory; the tendency of human memory
to “fill in the holes” with things not actually witnessed; and the tendency of a witness to
overstate the favorableness of the conditions under which the crime was viewed.
Young’s counsel discussed in voir dire a highly publicized case of wrongful conviction
by eyewitness misidentification and referred to the case again in closing.235
              Finally, the State’s case against Young relied on other evidence besides the
testimony of eyewitnesses, including his possession of both the gun and the key to the
SUV allegedly involved in the shooting and the testimony of several witnesses that the
assailants’ SUV was Young’s.
              For these reasons, we conclude that the failure to give a jury instruction
specific to eyewitness identification, though error, was harmless.




       234
              Cf. Buchanan, 561 P.2d at 1207 n.28 (noting “that all of the factors to
which the instruction alluded were referred to by Buchanan’s counsel in his final
argument to the jury”); Riley v. State, 60 P.3d 204, 208 (Alaska App. 2002) (holding that
flaws in jury instructions can be cured by the arguments of the parties).
       235
            The facts of that case are also discussed in Tegoseak v. State, 221 P.3d 345,
352-53 (Alaska App. 2009).
                                           -74-                                      7110

       C.	    The Superior Court Did Not Abuse Its Discretion By Denying Young’s
              Motion For Mistrial.
              Young also claims that the court of appeals erred when it affirmed the
superior court’s denial of his motion for mistrial due to what the court of appeals found
to be a discovery violation by the State: its failure to inform the defense that Arauz gave
a statement to Detective Elzey on the night of the shooting, identifying Young as one of
the shooters. We agree that the superior court did not abuse its discretion in denying a
mistrial, though our analysis differs from that of the court of appeals.
              Alaska Rule of Criminal Procedure 16(b)(1)(A)(i) requires the State to
disclose to the defendant “[t]he names and addresses of persons known by the
government to have knowledge of relevant facts and their written or recorded
statements.” In denying a mistrial, the superior court held that this rule did not apply to
Arauz’s statement to Detective Elzey because the statement had not been written or
recorded; the superior court also found a lack of prejudice. The court of appeals
disagreed with the superior court on whether the State’s failure to disclose violated Rule
16(b)(1)(A)(i), holding that it did.236 But the court of appeals nevertheless affirmed
Young’s conviction, holding that the superior court did not err in concluding that Young
had failed to show a “plausible way in which his defense was prejudiced” by the State’s
failure to disclose.237
              We agree with the court of appeals that there was a discovery violation.
The police reports that were disclosed to the defense stated that Arauz had not been able
to identify Young on the day of the shooting, which was the exact opposite of the




       236
              Young v. State, 331 P.3d 1276, 1283 (Alaska App. 2014).
       237
              Id.
                                           -75-	                                     7110
reality.238 As the court of appeals observed, to allow the State to avoid disclosing witness
statements under circumstances like these — by the simple expedient of promising the
witness that the statement will not be recorded — would “violate[] both the text and
spirit of Criminal Rule 16, which is designed to prevent precisely this type of unfair
surprise.”239
                We addressed the remedy for such discovery violations in Bostic v. State,
in which we held that “a defendant is presumptively prejudiced when confronted with
a Criminal Rule 16(b)(1)(A)(i) violation,” and that “[t]he burden rests on the State to
show that the defendant has not been prejudiced in the manner he specifically claims.”240
                Young claimed he was prejudiced because he was pursuing an alibi defense
that relied on discrediting Arauz, the only eyewitness who knew Young by sight. He
committed to his alibi defense in opening statements, when his attorney told the jury,
“You will also hear evidence as to where Mr. Young was that day”; “[t]he individuals
[who] were there that day did not see Mr. Young”; and “by the end of the presentation
of the evidence, you will hear the inconsistencies and the substantial nature of the
inconsistencies . . . by these witnesses.” Later, when seeking a mistrial, Young’s
attorneys told the court that one of their considerations in advising Young to pursue an
alibi defense was their perception of Arauz as “an individual [who is] adamant when he’s
interviewed [immediately after the shooting] that he couldn’t see a thing, nothing, and
then thereafter, about a month later, being called in, and . . . he was shown that lineup
right before he went in to testify [at the grand jury].” Relying on that timeline and the
prospect of impeaching Arauz, Young’s attorneys steered the cross-examination of

       238
                Id.
       239
                Id.
       240
                805 P.2d 344, 349 (Alaska 1991).
                                           -76-                                       7110

Arauz toward demonstrating that he first realized Young was a suspect when he arrived
at the grand jury, weeks after the shooting.241 They pursued this line of questioning until
brought up short by new information: that Arauz had, in fact, identified Young the day
of the crime. The defense attorneys argued that had they known of Arauz’s same-day
identification they “may have changed [their] entire theory of the case to run
justification” as a defense rather than alibi; in support of such a defense they cited
evidence that someone in the second vehicle behind the targeted Buick may have fired
at the pursuing silver SUV, as well as “multiple other ballistics evidence that hasn’t been
matched to anyone.”
              This was a specific claim of prejudice that the State was required to rebut.242
We note that the court of appeals framed the defendant’s initial burden of claiming
prejudice in terms of plausibility: “Although the State bears the burden of disproving
that the defendant was prejudiced by a mid-trial discovery violation, the defendant must
first set forth some plausible way in which his defense was prejudiced.”243 While we
agree that a claim of prejudice must be plausible before the State is required to rebut it,
we emphasize that the defendant does not bear any evidentiary burden in raising the
presumption.244 The defendant’s claim of prejudice need only be facially plausible in the

       241
             Young’s attorney asked Arauz, “Then you go to the grand jury, right? And
you’re shown a photo lineup, weren’t you? . . . And so now you know that the State is
suspecting [Young] . . . .”
       242
              See Bostic, 805 P.2d at 349.
       243
              Young, 331 P.3d at 1283 (emphasis added).
       244
              The court of appeals observed that “Young did not make an offer of proof
or ask to present information to the court in camera to establish that he had evidence to
support the [justification] defense.” Id. We agree that the stronger and better-supported
the specific claim of prejudice, the more difficult it will be for the State to rebut it. But
                                                                               (continued...)
                                            -77-                                       7110

context of the case; as we held in Bostic, to “burden . . . the non-offending party . . . with
[having to show] proof that the violation resulted in the prejudice he specifically claims,
rather than requiring the offending party to show that the violation did not result in such
prejudice, is manifestly unjust.”245
              In response to Young’s motion for mistrial, the State focused on what it
termed the “minimal” effect of the new evidence on Young’s alibi defense; it contended
that the defense’s “ability to cross-examine and point out that [Arauz] had changed his
story, that he had originally lied to the police, was still there.” The State argued that the
defense’s claim that it “would have . . . used a different theory of the case [was] a
stretch” given that Young knew long before trial that Arauz had identified him at the
grand jury and still opted against a justification defense.
              Both the superior court and the court of appeals, in explaining why they
found no prejudice, noted the fundamental inconsistency between a justification defense
and the alibi defense Young actually put on.246 But the fundamental inconsistency
between the two theories is the major part of the prejudice Young claimed; if the
defenses were not inconsistent, he would not have been significantly prejudiced by
having to switch from one to the other mid-trial. And the brief continuance, while
helping to address some of Young’s claims of prejudice,247 could not cure the prejudice


       244
         (...continued)
whether the presumption of prejudice arises does not depend on an offer of proof or an
in camera evidentiary presentation by a defendant, like Young, who has made a specific
claim of prejudice.
       245
              Bostic, 805 P.2d at 347.
       246
              Young, 331 P.3d at 1283.
       247
              For example, Young claimed that he needed more information about
                                                                  (continued...)
                                            -78-                                        7110

of having committed irrevocably to one defense without knowing all its weaknesses. As
we explained in Bostic, “A continuance would have given [the defendant] only more
time to agonize over how to unring a bell that should never have been rung in the first
place.”248
             We conclude, however, that the State successfully rebutted Young’s
specific claim of prejudice. As the prosecutor pointed out, the primary revision to the
story of Arauz’s identification was with regard to its timing. Young knew Arauz had
failed to identify him on the day of the crime; what he did not know was that Arauz
reversed course later the same day rather than three weeks later at the grand jury. The
defense could still impeach Arauz by pointing out “that he had changed his story, that
he had originally lied to the police.” The untimely disclosure did not prevent Young’s
attorneys from arguing to the jury that Arauz had fabricated his identification.
             We understand Young’s argument that there is a significant difference
between a spontaneous same-day identification and one made only after the police have
identified the suspect. But the question is whether knowing the different timeline before
trial would have prompted Young to abandon his alibi defense in favor of an unlikely
alternative. The State’s evidence, as described by the court of appeals, “showed that
Young had been driving a silver SUV and firing shots at a car that was trying to get




       247
        (...continued)
Arauz’s same-day identification in order to effectively cross-examine him about it.
       248
              Bostic, 805 P.2d at 348. We noted in Bostic that, in contrast to a
continuance, “[a] mistrial is a tailored remedy, which would allow both [the defendant]
to restructure his defense in light of the sudden revelation of information which he was
entitled to have all along, and the state to put on relevant evidence in its possession,
should it deem the evidence too important to proceed without it.” Id.
                                          -79-                                     7110

away.”249 On the basis of the information and arguments presented by both parties, the
superior court reasonably concluded that Young was unlikely to have pursued a
justification defense regardless of when he learned of Arauz’s same-day identification.
The loss of that option was Young’s primary claim of prejudice and the one on which he
focuses his appeal. Because the State rebutted the prejudice that Young specifically
claimed, the superior court did not abuse its discretion when it denied Young’s mistrial
motion.
V.    CONCLUSION
             We AFFIRM the court of appeals’ decision affirming Young’s conviction
on the alternate grounds that admitting Gazewood’s eyewitness identification and failing
to give an eyewitness-specific jury instruction, though errors, were harmless.




      249
             Young, 331 P.3d at 1283.
                                         -80-                                     7110
