                   IN THE SUPREME COURT OF IOWA

                                  No. 18–0002

                            Filed April 24, 2020


STATE OF IOWA,

      Appellee,

vs.

EARL BOOTH-HARRIS,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Des Moines County, John G.

Linn, Judge.



      A defendant seeks further review of a court of appeals decision

rejecting his due process challenge to a police photo array identification

procedure and the court’s failure to grant relief on his claim that trial

counsel was ineffective for failing to request different jury instructions on

eyewitness identifications reflecting scientific research.   DECISION OF

COURT OF APPEALS AFFIRMED IN PART AND VACATED IN PART;

DISTRICT COURT JUDGMENT AFFIRMED.



      Mark C. Smith, State Appellate Defender (until withdrawal), and Nan

Jennisch, Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.
                                      2

WATERMAN, Justice.

      In this appeal, a defendant convicted of first-degree murder based

in part on eyewitness testimony seeks a new trial on two grounds. First,

he contends the police used unduly suggestive photographic identification

procedures and the district court erred by failing to grant his motion to

suppress the resulting identification.     Second, he contends his trial

counsel was ineffective for failing to request more robust jury instructions

on eyewitness identifications that reflect modern scientific research. The

district court, without objection, had given the Iowa State Bar Association

(ISBA)   Uniform    Criminal   Jury   Instruction   200.45   on   eyewitness

identification.   We transferred the case to the court of appeals, which

affirmed his conviction while preserving his ineffective-assistance-of-

counsel claims for possible postconviction proceedings. We granted the

defendant’s application for further review.

      On our review, we decline the defendant’s invitation to change our

constitutional precedent to further limit the admissibility of eyewitness

identifications following police photo arrays.      We determine that the

double-blind procedures used in this case, with an appropriate admonition

given the witness, were not unduly suggestive. Unlike the court of appeals,

we determine the record is adequate to decide the ineffective-assistance-

of-counsel claim challenging ISBA Instruction 200.45, and we reject the

claim on the merits. For the reasons explained below, we affirm the district

court’s judgment of conviction.

      I. Background Facts and Proceedings.

      The trial testimony established the following facts. On February 16,

2015, in Burlington, Iowa, an argument broke out between Deonte Carter

and Terrance Polk in the front yard of Rita Lewis’s home. Carter accused

Polk of breaking into his home and stealing a pair of sneakers. Lewis told
                                    3

the men to take their fight elsewhere, and the disputants dispersed. Polk

and Carter then communicated through Facebook and set a time and place

to fight.

       That afternoon, Carter, along with his cousin, Donnell Watson, and

friend, Edward DeWitt, arrived at the park on 7th and Elm in Burlington.

Polk showed up with several men who had accompanied him earlier at the

Lewis house. All of the men were the same race. Carter and his group

were approached by a shooter wearing a black stocking cap whom Watson

later identified as Earl Booth-Harris. The shooter and Carter engaged in

a brief exchange of words with Carter telling the shooter, “[D]o what you

gotta do.” The shooter opened fire, hitting Carter multiple times. Watson

ran away when the shooting started. When it stopped, he returned and

found Carter on the ground bleeding from bullet wounds. DeWitt called

911. Watson found a .40 caliber gun on the ground next to Carter and

took it to Lewis’s house. Police recovered that weapon later. Carter died

due to gunshot wounds to his chest, abdomen, and back. Carter was shot

by a .45 caliber gun.

       The same day, Booth-Harris presented to a hospital in Monmouth,

Illinois, for a gunshot wound to his leg. Booth-Harris was shot with a .40

caliber gun. In an interview with the police at the hospital, Booth-Harris

stated that he was in the area of the shooting and saw an argument

involving several men. He told police he heard gunshots and ran and while

running away was shot. Booth-Harris told the police that he went home,

changed clothes, and contacted his father, who took him to the Illinois

hospital. Booth-Harris feared going to the hospital in Burlington where he

might be shot. Booth-Harris denied participating in the shooting.

       On the day of the shooting, Watson gave a statement to police and

was presented with a photo array. A photo of Polk was included because
                                          4

police suspected he was the shooter. This array did not include a photo

of Booth-Harris. Watson did not identify anyone in these photos as the

shooter. Watson was next presented with a single photo of Booth-Harris.1

He denied knowing who Booth-Harris was.

        Two days later, Watson was again interviewed and shown photo

arrays prepared by Detective Josh Tripp.                Detective Tripp “pick[ed]

photographs of subjects that look[ed] similar to the suspect that [they]

ha[d] at the time.” Detective Tripp personally picked six photographs out

of ten to twelve that he believed looked the most similar. Sergeant Chad

McCune, who was not involved in the investigation and did not know who

was a suspect, presented the photo array in a double-blind protocol.

Sergeant McCune read to Watson a photographic admonition, which

Watson signed before looking at the photos. The admonition states,

        You are about to view a photographic line-up. The person who
        committed the crime may or may not be included in it. While
        looking at the photographs, keep an open mind that the
        individuals may not appear exactly as they did on the date of
        the crime. Their hairstyles, facial hair, clothing, etc. may have
        changed. Also, photographs may not always depict the true
        complexion of a person, who may be lighter or darker than
        shown in the photo. The officer showing you the photographs
        has no knowledge of the incident. In the line-up process, the
        photographs will be shown to you one at a time and are not in
        any specific order. Take as much time as you need to look at
        each photograph. Even if you identify an individual, the
        officer will continue to show you all of the photographs. The
        officer is not allowed to tell you whether your choice, if you
        make one, is a suspect in the investigation. Do not tell other
        witnesses that you have or have not identified anyone.




        1When   presented with the picture of Booth-Harris, Officer Derek Schwandt
testified,
               Q. Why did you show him the picture then? A. Well, we just had
        a shooting in Burlington and there’s a subject with a gunshot wound. We
        don’t know if he’s a victim. We don’t know if he’s a suspect. We don’t
        know if he’s a bystander, so at that time, we’re not sure what his
        involvement was.
                                     5

A photo of Booth-Harris was included in this second array, and Watson

identified him as likely being the shooter after quickly dismissing the other

five photographs. Watson commented that he wanted to say Booth-Harris

was the shooter, but he stated his eyes were smaller in the photo than

they were the day of the shooting; however, Watson noted favorably the

“strong jaw structure” of Booth-Harris and indicated that was the “only

thing he could kind of see.” Watson also called attention to Booth-Harris’s

eyebrows, stating that the eyebrows of the shooter were thicker. At this

point, Watson said he had a fifty percent certainty and initialed the

picture. Watson told the officer, “[Y]’all can like take another picture and

show me.”

      The officers informed Watson that they were going to try to find more

recent photos.   While Watson was still at the station, Detective Tripp

prepared another array. Sergeant McCune again administered the array

and again read the admonition to Watson, which he signed. Watson again

quickly dismissed the other photographs, and he identified Booth-Harris

as the shooter. When asked about his level of certainty, Watson this time

said he was seventy percent certain. Watson commented about “feelin’

like” it was him.    After an exchange between Watson and Sergeant

McCune, in which Sergeant McCune stated that “feelin’ like it” means more

than seventy percent, Watson ended by stating he had one hundred

percent certainty.

      A search of Booth-Harris’s home yielded evidence used at trial.

Blood drops outside led into the home. A black stocking cap and bloody

t-shirt were found inside the home. A .45 caliber shell casing was located

on the ground outside the back door. The casing matched the .45 caliber

casings at the scene of the shooting, indicating they were fired from the

same gun. Additionally, live .45 caliber rounds were recovered from Booth-
                                          6

Harris’s home. An expert identified the live rounds as the same brand of

casings as those at the shooting and opined the casings at the scene of the

shooting and those at the Booth-Harris house were likely manufactured

around the same time.

       Booth-Harris was charged with murder in the first degree, in

violation of Iowa Code section 707.2 (2015), a class “A” felony. Booth-

Harris filed a motion to suppress the identification, arguing the procedure

was impermissibly suggestive and a violation of his due process rights.

The district court denied the motion to suppress. Watson testified at trial

and identified Booth-Harris as the shooter. Booth-Harris was found guilty

of first-degree murder and was sentenced to life in prison without the

possibility of parole. Booth-Harris appealed, raising two issues. First,

Booth-Harris claimed the district court erred in denying his motion to

suppress Watson’s in-court identification because the out-of-court

identification was impermissibly suggestive and unreliable.                 Second,

Booth-Harris claimed his trial counsel was ineffective for failing to request

jury instructions similar to those adopted in State v. Henderson, 27 A.3d

872 (N.J. 2011). 2

       We transferred the case to the court of appeals, which affirmed
Booth-Harris’s conviction while preserving for possible postconviction

relief action his “due process claim raised under the Iowa Constitution and

his claim defense counsel should have requested a different eyewitness

identification instruction.”      We granted Booth-Harris’s application for

further review.



       2Booth-Harris’s trial counsel offered no expert testimony on the reliability of

eyewitness identifications, and his appellate counsel makes no claim Booth-Harris
received constitutionally deficient representation based on the lack of such expert
testimony.
                                           7

       II. Standard of Review.

       We review constitutional challenges to eyewitness testimony

de novo. State v. Taft, 506 N.W.2d 757, 762 (Iowa 1993). As we recently

reiterated,

       “When a defendant challenges a district court’s denial of a
       motion to suppress based upon the deprivation of a state or
       federal constitutional right, our standard of review is de novo.”
       We examine the whole record and “make ‘an independent
       evaluation of the totality of the circumstances.’ ” “Each case
       must be evaluated in light of its unique circumstances.”

State v. Fogg, 936 N.W.2d 664, 667 (Iowa 2019) (quoting State v. Coffman,

914 N.W.2d 240, 244 (Iowa 2018)).

       Claims of ineffective assistance of counsel are reviewed de novo.

State v. Harrison, 914 N.W.2d 178, 188 (Iowa 2018).

       III. Analysis.

       A. The Motion to Suppress.                 We begin with Booth-Harris’s

argument that the district court erred in denying his motion to suppress

Watson’s pretrial identification of him as Carter’s killer.              Booth-Harris

contends the pretrial photographic identification procedures violated his

due process rights under the Federal and Iowa Constitutions. 3 See U.S.

Const. amend. XIV; Iowa Const. art. I, § 9. Booth-Harris has the burden
of proving that the identification procedures were unconstitutionally

suggestive or unreliable. State v. Neal, 353 N.W.2d 83, 86 (Iowa 1984).

       We apply a long-standing, two-part analysis to challenges to out-of-

court identifications, the same test set by the United States Supreme Court

and utilized by most other states. Taft, 506 N.W.2d at 762; J.P. Christian

       3The court of appeals determined that Booth-Harris failed to preserve error on his
due process claim under the Iowa Constitution because he did not argue for a different
standard in his motion to suppress. Booth-Harris argues that error was preserved in his
motion to suppress because he alleged due process claims under the Federal and Iowa
Constitutions, and the district court ruled on them. We agree with Booth-Harris that
error was preserved.
                                      8

Milde, Bare Necessity: Simplifying the Standard for Admitting Showup

Identifications, 60 B.C. L. Rev. 1771, 1806, 1823 (2019) (stating “[t]he

majority of state high courts apply the federal standard that the Supreme

Court reiterated in [Manson]” and collecting cases that “follow the [Manson]

test and apply the [Neal v.] Biggers[, 409 U.S. 188, 93 S. Ct. 375 (1972),]

factors with little or no divergence”); Lawrence Rosenthal, Eyewitness

Identification and the Problematics of Blackstonian Reform of the Criminal

Law, 110 J. Crim. L. & Criminology 181, 205–06 & nn.132–133 (2020)

[hereinafter Rosenthal, Eyewitness Identification] (identifying forty-one

states and the District of Columbia that utilize the test articulated in

Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243 (1977), and noting

“[m]ost courts, when invited to depart from Manson as a matter of state

law, have declined to do so”). “First, we decide whether the procedure used

for the identification was impermissibly suggestive.” Taft, 506 N.W.2d at

762. If we determine the procedure was impermissibly suggestive, we turn

to the second step to decide whether “under the totality of [the]

circumstances the suggestive procedure gave rise to a very substantial

likelihood of irreparable misidentification.”     Id. (alteration in original)

(quoting State v. Whetstine, 315 N.W.2d 758, 764 (Iowa 1982)).

      Under the second step, the critical question is whether the out-of-

court identification was reliable. Id. We have endorsed the prevailing five-

factor test for assessing reliability of out-of-court identification procedures

adopted from Biggers:

      (1) the opportunity of the witness to view the perpetrator at
      the time of the crime, (2) the witness’ degree of attention,
      (3) the accuracy of the witness’ prior description of the
      perpetrator, (4) the level of certainty demonstrated by the
      witness at the confrontation, and (5) the length of time
      between the crime and the confrontation.
                                             9

Id. at 763; Manson, 432 U.S. at 114, 97 S. Ct. at 2253; Biggers, 409 U.S.

at 199–200, 93 S. Ct. at 382. “When unnecessarily suggestive pretrial out-

of-court identification procedures conducive to mistaken identification

that are incapable of repair are used, the Due Process Clause requires

exclusion of the testimony of the identification.” State v. Folkerts, 703

N.W.2d 761, 763 (Iowa 2005). There is no Due Process Clause violation

as long as the identification has sufficient aspects of reliability. State v.

Webb, 516 N.W.2d 824, 830 (Iowa 1994). If Booth-Harris cannot satisfy

our two-part test, “the identification evidence and its shortcomings or

credibility are for the jury to weigh.” Neal, 353 N.W.2d at 87.

       Booth-Harris urges us to modify our approach to eyewitness

identification evidence given empirical research showing the accuracy and

trustworthiness of eyewitness identifications are limited by estimator

variables and system variables. 4 Booth-Harris asserts that the current

test does not account for these variables and that some of the Biggers

factors are at odds with the research. Booth-Harris asks us to incorporate

these system and estimator variables when determining whether an

identification is unduly suggestive and unreliable and to abandon the

second step of our test. We decline to alter our test under the Iowa or
Federal Due Process Clauses. The two-part test remains our law.

       We acknowledge the evolving social science research without

concluding that it serves as “a basis for establishing fixed principles of


       4“Estimator   variables” are the factors related to reliability that are “connected to
the event, witness, or perpetrator—items over which the justice system has no control.”
State v. Lujan, 459 P.3d 992, 1001 (Utah 2020). Examples of estimator variables are the
conditions such as lighting or distance that may have affected the witness’s view, any
stress or duress that the witness incurred, weapon focus, witness characteristics,
perpetrator characteristics, and memory deterioration factors. Id. “System variables” are
defined as “factors controlled by the court or law enforcement” such as the use of double-
blind identification procedures, detailed instructions for the witness before conducting
the identification procedure, and a proper lineup. Id.
                                     10

constitutional law.” See State v. Lujan, 459 P.3d at 992, 999 (Utah 2020).

This research has not persuaded the United States Supreme Court or the

overwhelming majority of other state supreme courts to alter or abandon

the two-part test.   Our adherence to stare decisis is supported by the

recent decisions of the Utah and Wisconsin Supreme Courts that retreated

from their earlier decisions relying on the scientific research to alter the

test for admissibility of eyewitness identifications under state due process

provisions.

      In Lujan, the Utah Supreme Court clarified an earlier opinion that

had expanded on the Biggers factors for the admissibility of eyewitness

identification testimony under the due process clause of the Utah

Constitution. Id. at 997–99 (discussing State v. Ramirez, 817 P.2d 774

(Utah 1991)). The unanimous Lujan court stated,

      The Ramirez opinion looked only to evolving social science in
      its articulation of the reliability factors that it identified. It
      based the factors on “well-respected and essentially
      unchallenged empirical studies” as laid out in State v. Long,
      721 P.2d 483 (Utah 1986), even while conceding that the
      holding in Long “was not squarely based on the state
      constitution.” The opinion established this “more empirically
      based approach” solely because the court “judge[d] this to be
      a more appropriate approach.”
             These sorts of considerations—rooted in evolving social
      science and legal scholarship—may be appropriate grounds
      for our provision of “guidance” on the reliability of eyewitness
      identification testimony. But such evolving grounds are not a
      basis for establishing fixed principles of constitutional law.
      And our decision in Ramirez nowhere offered an originalist
      basis for constitutionalizing the reliability factors set forth in
      that opinion.

Id. at 999 (alteration in original) (citations omitted) (quoting Ramirez, 817

P.2d at 780). Lujan held the Ramirez factors could provide guidance under

the rules of evidence but could no longer serve as a constitutionally
                                     11

required test for admissibility under the state due process clause. Id. at

999–1000. We agree.

         We join the Lujan court in recognizing the development in the

research and the use of estimator and system variables, but we echo that

“research in this field is ongoing.” Id. at 1001. As such, we agree with the

Utah Supreme Court that other methods such as the evidentiary

“rulemaking process lends itself nicely to adaptation over time in response

to developments in scientific and legal scholarship in this important field.”

Id. at 995. “[A]s our understanding of the factors that affect the reliability

of eyewitness testimony develops, our application and understanding of

our rules of evidence can likewise evolve.” Id. at 1001.

         Similarly, in State v. Roberson, the Wisconsin Supreme Court

rejected the defendant’s argument that a victim’s identification of the

defendant should be suppressed because it began with law enforcement

showing the victim a single Facebook photograph of the defendant. 935

N.W.2d 813, 815–16 (Wis. 2019). The Wisconsin Supreme Court expressly

overruled its prior decision that departed from the United States Supreme

Court     decisions   in   Manson   and      Biggers     and    “was    based   on

misunderstanding       [those   decisions]     in      regard   to     out-of-court

identifications and on topical social science.” Id. at 822. The Roberson

court aptly held that given the tendency of scholars to embody the

subjective beliefs of the time period, “social science research cannot be

used to define the meaning of a constitutional provision.” Id. at 820. We

agree.

         This is not to suggest that social science does not play a role in

challenging the admissibility of eyewitness testimony under Iowa Rule of

Evidence 5.403 or through expert testimony or modified jury instructions.

The ISBA Jury Instruction Committee is welcome to evaluate revisions to
                                         12

Iowa Uniform Jury Instruction 200.45. We anticipate that a new task force

will evaluate revisions to the Iowa Rules of Evidence.              Meanwhile, as

always, defense counsel can cross-examine witnesses and argue the

weight to be given their testimony. Counsel may also consider introducing

expert testimony regarding the social science research. But we decline to

defer to social science to raise our constitutional bar to admissibility. We

trust Iowa juries to give the testimony appropriate weight.

       1. The photographic identification procedures were not impermissibly

suggestive. Turning to the first step in our analysis, we must determine

whether the photographic identification procedures were impermissibly

suggestive. “It must be conceded that even the most well-designed and

well-applied pretrial identification procedure will be, to some extent,

suggestive.” State v. Walton, 424 N.W.2d 444, 447 (Iowa 1988).

       The officers showed Watson a photo of Booth-Harris on three

occasions.    First, on the day of the shooting after Watson viewed the

photographic array that included Polk’s photograph and made no

identification, 5 officers showed Watson a photo of Booth-Harris in a single-

photographic display. Watson did not identify Booth-Harris at that time.

Second, two days later, Watson was shown a photographic array that
included Booth-Harris’s photo when he stated he was fifty percent sure

that Booth-Harris was the shooter but could not say so definitively given

the way his eyes looked. Lastly, that same day, the officers showed Watson

another photographic array that included a more recent photo of Booth-

Harris, and Watson identified him as the shooter.

       Booth-Harris      contends     the     single-photographic     display    was

impermissibly suggestive by making him stand out and appear familiar to

       5Booth-Harris’sphoto was not shown to Watson in the first photographic array on
February 16, 2015, and he did not identify any of those individuals as the shooter.
                                       13

Watson when Booth-Harris appeared again in the subsequent two

photographic arrays. He claims it was unnecessary for the officers to show

Watson his photograph in a single array given that there were no exigent

circumstances and a photographic array could have been prepared and

presented to Watson instead.      Booth-Harris relies heavily on State v.

Lawson, 291 P.3d 673 (Or. 2012) (en banc).

       In Lawson, the Oregon Supreme Court outlined the existing

research and eight system variables, or the best practices surrounding the

eyewitness identification procedures. Id. at 686–87. First, the research

recommends that the identification procedures be conducted by a “blind”

administrator who does not know the identity of the suspect and therefore

cannot purposely or unintentionally suggest that information to the

witness.    Id. at 686.      Secondly, it recommends preidentification

instructions that tell the witness that a suspect may or may not be in the

lineup or photo array and that it is acceptable to not make an

identification. Id. It notes that such an instruction significantly decreases

the likelihood of misidentification.    Id.   Third, “lineup fillers should be

selected first on the basis of their physical similarity with the witness’s

description of the perpetrator” and then based on their similarity to the

suspect if there is no description. Id.

       Fourth, the research favors a sequential showing of the photographs

one at a time over a simultaneous viewing of the photos as a group because

witnesses are more likely to make an absolute judgment rather than a

relative judgment.    Id.   Fifth, the research states that showups, or

procedures when the officer presents the witness with a single suspect for

identification, are generally less reliable because the witness then knows

who the police believe is a suspect. Id. However, the Lawson court noted

that
                                    14
       [w]hen conducted properly and within a limited time period
       immediately following an incident, a showup can be as reliable
       as a lineup. A showup is most likely to be reliable when it
       occurs immediately after the witness has observed a criminal
       perpetrator in action because the benefit of a fresh memory
       outweighs the inherent suggestiveness of the procedure.

Id.   Sixth, the research warns that “[v]iewing a suspect multiple times

throughout the course of an investigation can adversely affect the

reliability of any identification that follows those viewings.” Id. Seventh,

Lawson identifies    concerns with suggestive wording and leading

questions. Id. at 687. And lastly, eighth, research warns that “[p]ost-

identification confirming feedback tends to falsely inflate witnesses’

confidence in the accuracy of their identifications, as well as their

recollections concerning the quality of their opportunity to view a

perpetrator and an event.” Id.

       Most of Lawson’s identified best practices for conducting eyewitness

identification procedures were followed by the officers here.     Sergeant

McCune, who administered the second and third photograph arrays, was

not involved in the criminal investigation and did not know who the

suspect was. In each of those subsequent photographic arrays, Sergeant

McCune read the photographic identification admonition form to Watson,

and he signed it. The form reflects the best practice since it instructs the

witness that the person who committed the crime may or may not be

included in the photographic array, to “keep an open mind that the

individuals may not appear exactly as they did on the date of the crime,”

and to take as much time as necessary to look at each photograph. The

people used as “lineup fillers” were chosen by another detective because

they looked the most similar to the suspect.         For each array, the

photographs were shown sequentially, one at a time. Watson quickly ruled

out the five other photographs (in the first array), but paused on
                                     15

photograph four, which was Booth-Harris. In the second array, Watson

identified Booth-Harris again and stated the eyes were a closer match to

the shooter’s.

      Although the officers showed Watson a single photograph of Booth-

Harris, at that time, they did not consider him to be a suspect, and they

did not know if he had a connection to the crime.            Booth-Harris’s

photograph was not presented to Watson as a potential shooter; it was

merely used to ask Watson if he knew who Booth-Harris was.              This

occurred on the same day as the crime. This single-photographic array is

not sufficient to taint the identification procedure as impermissibly

suggestive.

      Neal is instructive. 353 N.W.2d 83 (Iowa 1984). In Neal, the victim

had been abducted and sexually abused one evening but was able to

escape her captor. Id. at 85. Shortly after the assault, and while the victim

was in the hospital, the police showed her a set of photographs that did

not include the defendant’s picture. Id. at 87. She made no identification.

Id. Six days later, the police showed her five mugshots, and “[a]lthough

she would not make a positive identification, she did point out [the

defendant] as most closely resembling her assailant.” Id. Approximately

two weeks later, a second array of four photos was prepared that contained

a more recent photo of the defendant. Id. at 89. This time, the victim

positively identified the defendant as her assailant. Id.

      The defendant in Neal asserted that the second photo array was

tainted by the fact that the victim had already been exposed to him

through the image from the first photo array.       Id.   He claimed it was

possible that she was identifying him based on the image from the first

photo array rather than from the image of the person who assaulted her.

Id. We held that the “defendant’s first picture did not mislead the victim
                                    16

into making the subsequent identification” because she did not make an

identification during the first photo array and there were distinct

differences between the images such that the second photo, which more

closely resembled how the defendant looked around the time of the

assault, portrayed a different hairstyle and a more mature individual. Id.

      As in Neal, we do not find that the first photo misled Watson into

making the subsequent identification. Watson did not initially identify

Booth-Harris in the single photograph array, and he was careful not to

select an individual whose facial features did not match his memory of the

shooter.   The photograph in the second array additionally showed a

different angle and portion of Booth-Harris’s face to reflect the portion of

the shooter’s face that Watson saw.      Watson took care not to identify

anyone until the facial features matched his memory of the shooter. See

State v. Rawlings, 402 N.W.2d 406, 408 (Iowa 1987) (holding that the

identification was not impermissibly suggestive despite the fact that the

defendant was the only individual whose picture was repeated in the two

arrays because “[a] reasonable effort to harmonize the lineup is normally

all that is required”). Further, at trial, Watson stated that he had lied to

the police about not knowing Booth-Harris when he was shown the single

photograph array.

           Q. Well, isn’t it a fact that you saw [Officer] Derek
      Schwandt at the police station on February 16th? A. I guess
      so.
            Q. Did you tell the truth to [Officer] Derek Schwandt
      about what happened that afternoon? A. No.
            Q. What did you not tell him the truth about? A. The
      picture lineup.
            Q. I’m sorry? A. The picture lineup.
             Q. What do you mean, the picture lineup? A. Like,
      when they was showing me the pictures and stuff like that, I
      lied about the person who it was.
                                      17
              Q. What lie did you tell? A. That I didn’t know who it
      was.

The credibility of Watson’s identifications was for the jury to decide.
      Additionally, Booth-Harris contends the photographic identification

procedures were impermissibly suggestive due to Watson’s inflation of his

level of certainty that Booth-Harris was the killer from seventy percent to

one hundred percent after Sergeant McCune’s prompting.                    Even

“[a]ssuming, without deciding, that the photographic identification

procedure employed by the police here was ‘suggestive,’ it does not

necessarily follow that the procedure was ‘impermissibly’ suggestive.”

State v. Mark, 286 N.W.2d 396, 404 (Iowa 1979). We discourage officers

from urging the witness to increase their level of certainty. But we decline

to find that Sergeant McCune’s comments after Watson had identified

Booth-Harris require exclusion of the identification. Again, the jury could

evaluate     Watson’s   credibility   in   light   of   Sergeant   McCune’s

postidentification comments.

      The person that created the photo arrays, Detective Tripp, was not

the same individual who showed the arrays to Watson, Sergeant McCune.

In fact, Sergeant McCune was not involved in the investigation; did not

know which of the photographs depicted the suspect; and, therefore, could

not have signaled whether or not Watson correctly identified the suspect.

As stated, Sergeant McCune’s lack of involvement with, or knowledge of,

the case was purposeful and in line with the best practices. Since Sergeant

McCune did not know whether or not Booth-Harris was the suspect, his

potential encouragement that Watson increase his level of confidence in

his identification was not impermissibly suggestive. The availability of

video evidence of their interaction further ensured the jury could make its
                                     18

own determination on the reliability of Watson’s level of certainty in his

identification.

      For the above reasons, we do not find that Watson’s identification of

Booth-Harris as the shooter was impermissibly suggestive.

      2. The photographic identification procedures were reliable.        To

assess reliability under the second factor of our analysis, we turn to the

five-factor Biggers test.

      (1) the opportunity of the witness to view the perpetrator at
      the time of the crime, (2) the witness’ degree of attention,
      (3) the accuracy of the witness’ prior description of the
      perpetrator, (4) the level of certainty demonstrated by the
      witness at the confrontation, and (5) the length of time
      between the crime and the confrontation.

Taft, 506 N.W.2d at 763.     Veering from the Biggers test, Booth-Harris

contends that the identification was unreliable for a variety of reasons:

Watson did not initially identify him in the single-photographic display, it

was a high-stress situation, Watson could not see Booth-Harris’s face or

did not get a good look at him, weapon focus can affect reliability, Watson’s

certainty does not amount to reliability, there was a time delay between

the incident and the identification, and Watson’s drug use negatively

impacted the accuracy of the identification.

      As stated above, we reject Booth-Harris’s invitation to abandon the

Biggers factors. We will review each factor in turn. Watson had ample

opportunity to view the shooter. Watson’s attention was focused on the

individual who he saw with a gun before he ran away when shots were

fired. Watson acknowledged that his view of the shooter’s face was from

his nose to his forehead, and he particularly focused on the shooter’s eyes.

Watson’s description of the shooter was largely accurate with the exception

of his height estimate. Watson identified Booth-Harris as the shooter in

two of the three arrays, and he indicated his level of certainty in the
                                      19

identification each time. Additionally, Watson identified Booth-Harris’s

photograph and pointed out how the facial features matched that of the

shooter whereas he quickly dismissed the other photographs in the array.

Lastly, only two days passed between the incident and the positive

identification. See Mark, 286 N.W.2d at 406 (holding that a timespan of

one week between the incident and the identification was insufficient to

defeat the reliability of the identification). Altogether, under the totality of

the circumstances, the five factors weigh in favor of reliability.

      We acknowledge that “[t]he reliability of eyewitness identification

can be affected by a number of variables.” State v. Doolin, ___ N.W.2d ___,

___ (Iowa 2020) (filed today).    The additional factors that Booth-Harris

argues should be considered when assessing reliability all go to the weight

of Watson’s identification, not admissibility. The fact that it was a high-

stress situation and that Watson was under the influence of drugs is

insufficient to exclude his identification. “Most evidence can be called into

question in some way; however, that does not give the . . . court the ability

to preclude admission. We have cross-examination for a reason; evidence

often is tested in that way.” Roberson, 935 N.W.2d at 828. The jury is

responsible for weighing the evidence. As such,

      [w]e are content to rely upon the good sense and judgment of
      [our] juries, for evidence with some element of
      untrustworthiness is customary grist for the jury mill. Juries
      are not so susceptible that they cannot measure intelligently
      the weight of identification testimony that has some
      questionable feature.

Mark, 286 N.W.2d at 405 (quoting Manson, 432 U.S. at 116, 97 S. Ct. at

2254). “The jury may be an imperfect vehicle for assessing eyewitness

evidence, but it is the vehicle for resolving guilt or innocence found in the

Constitution. We can have little confidence that a judge-made substitute
                                       20

will do better.” Rosenthal, Eyewitness Identification, 110 J. Crim. L. &

Criminology at 243.

         The Roberson court correctly noted that “not all showings of a single

photo are infected by improper police influence causing a very substantial

likelihood of misidentification.     Each identification must be evaluated

based on its own facts.” 935 N.W.2d at 826. After applying the Biggers

factors, the Roberson court determined that the single photographic array

did not result in a substantial likelihood of misidentification and “the jury

should decide whether [the defendant] was correctly identified.”        Id. at

827–28. Similarly, we do not believe that there is a substantial likelihood

of irreparable misidentification under the totality of the circumstances

here.

         We conclude the photo array identification was not impermissibly

suggestive and unreliable.      Therefore, the district court did not err in

denying Booth-Harris’s motion to suppress Watson’s photo array

identification of him.

         B. Uniform Jury Instruction.

         We now turn to Booth-Harris’s ineffective-assistance-of-counsel

claim.      The district court submitted Iowa’s uniform instruction on

eyewitness identification to the jury.      See Iowa State Bar Ass’n, Iowa

Criminal Jury Instruction 200.45. Booth-Harris asserts on appeal that

his trial counsel breached his duty by failing to request a more thorough

eyewitness identification instruction that incorporated system and

estimator variables and that he was prejudiced as a result. We disagree,

and we determine that Booth-Harris’s trial counsel did not provide

constitutionally deficient representation by failing to request a different

jury instruction.
                                     21

      To prevail on an ineffective-assistance-of-counsel claim, Booth-

Harris must prove that his trial counsel (1) failed to perform an essential

duty and (2) prejudice resulted. State v. Clay, 824 N.W.2d 488, 495 (Iowa

2012) (describing the two-prong test for ineffective-assistance-of-counsel

claims set out in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984)). We presume counsel performed competently unless

the claimant proves otherwise by a preponderance of the evidence. Id.

Counsel’s performance is measured objectively against the prevailing

professional norms after considering all the circumstances. Id.

      “Trial counsel has no duty to raise an issue that lacks merit . . . .”

State v. Ortiz, 905 N.W.2d 174, 184 (Iowa 2017); see also State v. Graves,

668 N.W.2d 860, 881 (Iowa 2003) (same).          Counsel has a duty to be

“familiar with the current state of the law.” State v. Hopkins, 576 N.W.2d

374, 379–80 (Iowa 1998). But “[w]e do not expect counsel to anticipate

changes in the law, and counsel will not be found ineffective for a lack of

‘clairvoyance.’ ” Millam v. State, 745 N.W.2d 719, 722 (Iowa 2008). As

such, “[i]n situations where the merit of a particular issue is not clear from

Iowa law, the test ‘is whether a normally competent attorney would have

concluded that the question . . . was not worth raising.’ ” Id. (alteration in

original) (quoting Graves, 668 N.W.2d at 881).         The record must be

adequate to enable us to resolve an ineffective-assistance-of-counsel claim

on direct appeal. State v. Ary, 877 N.W.2d 686, 704 (Iowa 2016).

      To establish the second prong of the test, prejudice, “the claimant

must prove by a reasonable probability that, but for counsel’s failure to

perform an essential duty, the result of the proceeding would have been

different.” Id. at 705. This does not require a showing that counsel’s

conduct “more likely than not altered the outcome in the case,” but rather

that “the probability of a different result is ‘sufficient to undermine [our]
                                      22

confidence in the outcome’ of the trial.” Id. (alteration in original) (quoting

Graves, 668 N.W.2d at 882).

      We begin our analysis with the text of ISBA Criminal Jury

Instruction 200.45, which states,

      The reliability of eyewitness identification has been raised as
      an issue. Identification testimony is an expression of belief or
      impression by the witness.        Its value depends on the
      opportunity the witness had to see the person at the time of
      the crime and to make a reliable identification later.
            In evaluating the identification testimony of a witness,
      you should consider the following:
            1. If the witness had an adequate opportunity to see
      the person at the time of the crime. You may consider such
      matters as the length of time the witness had to observe the
      person, the conditions at that time in terms of visibility and
      distance, and whether the witness had known or seen the
      person in the past.
             2. If an identification was made after the crime, you
      shall consider whether it was the result of the witness’s own
      recollection.   You may consider the way in which the
      defendant was presented to the witness for identification, and
      the length of time that passed between the crime and the
      witness’s next opportunity to see the defendant.
             3. Any identification made by picking the defendant out
      of a group of similar individuals is generally more reliable than
      one which results from the presentation of the defendant
      alone to the witness.
            4. Any occasion in which the witness failed to identify
      the defendant or made an inconsistent identification.

Iowa State Bar Ass’n, Iowa Criminal Jury Instruction 200.45 (2015). The

instruction’s comment notes that it is “provided for use when appropriate

under State v. Tobin, 338 N.W.2d 879 (Iowa 1983).”

      Booth-Harris contends that this model instruction is insufficient

and that his counsel should have requested an alternative instruction or

a modified model instruction that better informs the jury about system

and estimator variables and educates them on memory recollection. He

cites to other jurisdictions that have criticized the use of the federal
                                         23

framework and instead encouraged and ultimately incorporated such

enhanced instructions.        See Commonwealth v. Gomes, 22 N.E.3d 897

(Mass. 2015); Henderson, 27 A.3d 872; 6 N.J. Criminal Model Jury

Instructions, Identification: In-Court and Out-of-Court Identifications

(2012), https://www.njcourts.gov/attorneys/criminalcharges.html.

        However, despite the research relied upon by the Massachusetts and

New Jersey courts, there is a growing body of academic literature that

questions the efficacy of certain provisions in such jury instructions on

eyewitness identifications. In fact, recent studies have shown that the

more comprehensive jury instructions like New Jersey’s Henderson

instruction can actually overcorrect the problem. See Abigail Twenter,

Striking     the   Right   Balance:   Mitigating   the   Effects    of   Eyewitness

Misidentification in Missouri, 75 J. Mo. B. 14, 16 (2019) (noting the studies

that support this theory). Results of a study that tested the efficacy of the

instruction in a simulated murder trial with 335 mock jurors “indicated

[that] the [Henderson] jury instruction was more likely to indiscriminately

increase the rate of exonerations for all defendants, not just those who are

innocent.” Id. “Ideally, an instruction should help jurors discriminate

good eyewitness testimony from bad,” but studies that have tested the

effect of the Henderson instruction have shown it does not accomplish this

goal.    Elizabeth F. Loftus, Eyewitness Science and the Legal System,

14 Ann. Rev. L. & Soc. Sci. 1, 6 (2018).

        As one scholar noted, these studies, such as the one that found that


        6A commentator recently observed that “Henderson’s protections may prove
illusory.” Rosenthal, Eyewitness Identification, 110 J. Crim. L. & Criminology at 201,
222–23. On remand, the Henderson trial court “conducted a hearing, made findings
regarding each of the relevant systems and estimator variables, and then denied the
motion to suppress [the witness’s] identification.” Id. at 201. The New Jersey
intermediate appellate court upheld that ruling, and the New Jersey Supreme Court
denied Henderson’s petition seeking further review. Id.
                                      24
      the reduction in the conviction rate occurred for both the
      strong and the weak case . . . suggest that scholars need to
      keep working to find new ways to improve the jury
      instructions so that they do not merely induce general
      skepticism but also improve sensitivity.

Id.; see also Nicholas A. Kahn-Fogel, The Promises and Pitfalls of State

Eyewitness Identification Reforms, 104 Ky. L.J. 99, 119 (2015–2016) (“Yet

there are reasons to believe that even the most detailed instructions might

be insufficient to cause jurors to incorporate fully the results of scientific

research into their decision-making. . . .        [T]his research has not

demonstrated superior outcomes with detailed instructions, and leading

scientists have concluded that it remains an ‘open question’ whether

detailed instructions can have a significant impact on juries.”); Rosenthal,

Eyewitness Identification, 110 J. Crim. L. & Criminology at 218 (“[S]tudies

of the jury instructions utilized in New Jersey since the Henderson decision

indicate that the new instructions cause mock jurors to become more

skeptical of all eyewitness identifications, regardless of the strength of the

evidence.”); John T. Wixted & Gary L. Wells, The Relationship Between

Eyewitness Confidence and Identification Accuracy: A New Synthesis, 18

Psychol. Sci. Pub. Int. 10, 11–13 (2017) (casting doubt on part of

New Jersey’s Henderson instruction and similar instructions adopted by

Massachusetts, Connecticut, and other states that suggest eyewitness

confidence is generally an unreliable indicator of accuracy because

research   indicates   those   jury   instructions   fail   to   “appropriately

communicate the high information value of an initial statement of

confidence obtained from a pristine identification procedure”). Another

scholar recently surveyed research studies, concluding the Henderson jury

instructions are less effective than expected.

            Nor did we observe a significant impact on the verdict
      and non-verdict measures in interaction with case strength,
      indicating that Henderson instructions did not produce
                                     25
      sensitivity to eyewitness identification evidence.        These
      findings are in contrast to the Henderson Court’s assumption
      that the new researched-based case-specific instructions
      would help jurors to objectively evaluate eyewitness evidence.
      In fact, results indicate that Henderson instruction might not
      only fail to induce sensitivity but also might induce skepticism
      among jurors instead. These results are consistent with
      previous research findings ([Athan P.] Papailiou et al., [The
      Novel New Jersey Eyewitness Instruction Induces Skepticism
      but Not Sensitivity, PLoS ONE 10(12) (Dec. 2015)];
      [Marlee Kind] Dillon et al., [Henderson Instructions: Do They
      Enhance Evidence Evaluation?, 17(1) J. of Forensic Psych.
      Res. & Prac. 1 (2017)]; [Angela M.] Jones et al., [Comparing the
      Effectiveness of Henderson Instructions and Expert Testimony:
      Which Safeguard Improves Jurors’ Evaluations of Eyewitness
      Evidence?, 13 J. of Experimental Criminology 29 (2017)];
      [Angela M.] Jones & [Steven D.] Penrod, [Improving the
      Effectiveness of the Henderson Instruction Safeguard Against
      Unreliable Eyewitness Identification, 24(2) Psych., Crime & L.
      177 (2017)]). While the former two studies found that
      Henderson instructions led to an overall skepticism, the two
      latter studies found lack of any effect on the verdict. These
      studies also examined the effectiveness of Henderson
      instructions     on    different    samples     (undergraduates,
      community members), using different media (video,
      transcript), and types of crime (from robbery to murder) and
      different timing of the instructions (before or after eyewitness
      testimony), always with null findings. Altogether, the results
      suggest that Henderson instructions are not as effective as
      they were meant to be.

Radim Koníček, Assessment of Eyewitness Testimony Accuracy: Effect of

Different Type of Instructions on Delivering Guilty or Not Guilty Verdicts 68

(April 27, 2018) (unpublished Master’s thesis, Masaryk University) (on file

with author). Another scholar more broadly observed:

      [T]he data are noisy, sometimes inconsistent, and provide
      nothing approaching a clear indication that reforms that
      reduce the risk of suggestion are likely to have a meaningful
      effect on the rate of false identifications—much less benefits
      that exceed their costs. The data are chaotic, and the state of
      our knowledge about eyewitness identification reform remains
      primitive.

Rosenthal, Eyewitness Identification, 110 J. Crim. L. & Criminology at 216.

      Given the evolving research and debate in this area, trial counsel did

not provide constitutionally deficient representation by failing to request
                                    26

an alternative instruction or additions to the uniform instruction. When

the researchers themselves are uncertain about the best practice for jury

instructions, and when some recent research rejects utilizing the very type

of instructions that Booth-Harris now desires, we cannot expect counsel

to predict which side will prevail. Counsel did not breach his duty by

failing to object to the ISBA Instruction 200.45, an instruction we have

never held misstates the law.

      We reiterate that “we are slow to disapprove of the uniform jury

instructions.” State v. Ambrose, 861 N.W.2d 550, 559 (Iowa 2015); see

also State v. Beets, 528 N.W.2d 521, 523 (Iowa 1995) (per curiam) (same);

State v. Monk, 514 N.W.2d 448, 450 (Iowa 1994) (en banc) (same); State v.

McMullin, 421 N.W.2d 517, 518 (Iowa 1988) (“[W]e normally approve the

submission of uniform instructions . . . .”); State v. Weaver, 405 N.W.2d

852, 855 (Iowa 1987) (same); State v. Jeffries, 313 N.W.2d 508, 509 (Iowa

1981) (same); State v. Whiteside, 272 N.W.2d 468, 471 (Iowa 1978) (same);

Ness v. H.M. Iltis Lumber Co., 256 Iowa 588, 594, 128 N.W.2d 237, 240

(1964) (same); McMaster v. Hutchins, 255 Iowa 39, 45, 120 N.W.2d 509,

512 (1963) (same). The uniform instructions are valuable to the bench

and bar.

             “While we normally approve the submission of uniform
      instructions,” we are free to find a “particular instruction is
      faulty.” Everyone knows this. What some readers may fail to
      fully appreciate, however, is the tremendous service the
      members of the ISBA Jury Instruction Committee do for our
      justice system. Without the uniform instructions, trial judges
      and lawyers statewide would be burdened reinventing the
      wheel researching and drafting ad hoc jury instructions every
      trial. The variances in the wording of instructions would
      increase exponentially, further burdening appellate review. It
      is far better to have a committee of dedicated trial judges and
      lawyers craft uniform instructions to spare their colleagues
      that time and trouble. If an appellate court concludes a
      particular jury instruction is erroneous, or if our court
      changes the law in a manner requiring a revision, then
      corrections to the uniform instruction can be readily made
                                      27
      and implemented statewide. The value of our current process
      is well understood by the bench and bar.

Ambrose, 861 N.W.2d at 563 (Waterman, J., concurring) (quoting
McMullin, 421 N.W.2d at 518).

      Of course, the ISBA Jury Instructions Committee is welcome to

revisit Instruction 200.45 and recommend changes to the instruction for

the ISBA Board of Governors to adopt or decline.             “[T]he court is not

required to give any particular form of an instruction; rather, the court

must merely give instructions that fairly state the law as applied to the

facts of the case.”   State v. Marin, 788 N.W.2d 833, 838 (Iowa 2010),

overruled on other grounds by Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699,

708 & n.3 (Iowa 2016). We hold that the ISBA Criminal Jury Instruction

200.45 does not misstate the law.

      We hold that Booth-Harris’s trial counsel had no duty to object to

Instruction 200.45 or to request a different instruction on eyewitness

identifications.   Because Booth-Harris failed to prove the first element

required to prevail on an ineffective-assistance-of-counsel claim, a breach

of duty, we end our analysis there. See Graves, 668 N.W.2d at 869 (“A

defendant’s inability to prove either element is fatal.”).

      IV. Disposition.

      For the foregoing reasons, we affirm the court of appeals decision in

part and vacate in part.      We affirm the district court’s judgment of

conviction and denial of the motion to suppress.

      DECISION OF COURT OF APPEALS AFFIRMED IN PART AND

VACATED IN PART; DISTRICT COURT JUDGMENT AFFIRMED.

      All justices concur except Appel, J., who dissents.
                                      28

                                             #18–0002, State v. Booth-Harris

APPEL, Justice (dissenting).

        The comfortable conventional canard is this: “Juries are not so

susceptible that they cannot measure intelligently the weight of

identification testimony that has some questionable feature.” Manson v.

Brathwaite, 432 U.S. 98, 116, 97 S. Ct. 2243, 2254 (1977). From the

beginning, this proposition was doubtful, but we now know after decades

of scientific evidence that the opposite is true. Studies have shown that

our wonderfully honest jurors often hold intuitive views about the

accuracy of eyewitness testimony that are simply incorrect. Cindy Laub &

Brian H. Bornstein, Juries and Eyewitnesses, in Encyclopedia of

Psychology and Law 390, 390–92 (Brian L. Cutler ed., 2008); see Jules

Epstein, Irreparable Misidentifications and Reliability: Reassessing the

Threshold for Admissibility of Eyewitness Identification, 58 Vill. L. Rev. 69,

90 (2013) [hereinafter Epstein, Irreparable Misidentification] (citing a 2011

study surveying over 1800 people in the United States that showed that

63% agreed the memory works like a video camera where we can review

and inspect the event later and 47.6% agreed that once experiencing an

event and a memory is formed it does not change). The jurors need our

help.

        In fact, because it is one of the most powerful pieces of evidence that

can be presented to a jury, eyewitness testimony is the leading cause of

wrongful convictions. Richard A. Wise et al., How to Analyze the Accuracy

of Eyewitness Testimony in a Criminal Case, 42 Conn. L. Rev. 435, 441

(2009) [hereinafter Wise et al., Criminal Eyewitness Testimony]. With the

significant role eyewitness testimony plays in our criminal justice system,

we must adapt our legal system to our scientific understanding in order to
                                     29

ensure that convictions are not being obtained based on eyewitness

misidentifications.

      Our system of justice currently tolerates an unacceptably high risk

of misidentification. The due process standard developed decades ago by

the United States Supreme Court under the United States Constitution,

and uncritically applied by this court under the Iowa Constitution,

requires only a “modicum of potential reliability” for admission of

eyewitness identification. Epstein, Irreparable Misidentification, 58 Vill. L.

Rev. at 71. As a corollary to the very low standard of admissibility, we

endorse the convenient and self-satisfying illusion that the adversarial

system and cross-examination provide jurors with the kind of information

needed to intelligently weigh the evidence in a fashion sufficient to afford

a defendant a fair trial.

      But we now know better. For reasons beyond my comprehension,

the eyewitness science is not harnessed by the majority. But our system

today utilizes what amounts to stone-aged principles. The declaration that

“this is how it has always been done” is inadequate. As the great Oliver

Wendell Holmes observed,

      It is revolting to have no better reason for a rule of law than
      that so it was laid down in the time of Henry IV. It is still more
      revolting if the grounds upon which it was laid down have
      vanished long since and the rule simply persists from blind
      imitation of the past.

Oliver Wendell Holmes, The Path of the Law, address dedicating a new hall

at Boston University School of Law (January 8, 1897), in 10 Harv. L. Rev.

457, 469 (1897), as quoted in Varnum v. Brien, 763 N.W.2d 862, 877 (Iowa

2009).

      Further, our criminal justice system should not be a conveyor belt

designed efficiently to produce convictions, affirmed on appeal, in
                                      30

sufficient number to meet the perceived demands of law and order. A court

system that singularly focuses on achieving convictions bends toward a

brand of state authoritarianism that should not be acceptable in a

democratic society.

        Instead, we must zealously pursue with grit and determination twin

goals: that the guilty are convicted and the innocent go free. See Berger v.

United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633 (1935). In order to

achieve these twin goals, it is imperative that we fashion our legal rules to

conform to our developing scientific knowledge on the critically important

question of eyewitness identification. That is what I have tried to do in

Doolin and in this opinion.

        If we applied a legal structure that is consistent with and based upon

what we know about eyewitness identification, the conviction in this case

would be reversed. I therefore respectfully dissent.

        I. Introduction.

        There is no need here to repeat the extensive overview of the

evolution of eyewitness testimony science given in State v. Doolin, ___

N.W.2d ___ (Iowa 2020) (Appel, J., dissenting), which I incorporate by

reference. There is, however, a body of science that relates directly to the

deficiencies presented in the identification of Earl Booth-Harris that did

not receive extended treatment in Doolin. First, I review that eyewitness

science below.

        Second, I review the facts of the eyewitness identification in this

case.    As will be seen, from the very beginning there were important

estimator and system variables that significantly decreased the overall

reliability of the identification later made by Donnell Watson. Further, the

identification process in this case was unnecessarily suggestive in several

respects. In short, the identification was highly unreliable.
                                      31

      Third, I examine the principles of due process under the United

States and Iowa Constitutions. I discuss how the Iowa Constitution can

provide greater protections for Iowans when facing possible eyewitness

testimony.    Under the Iowa Constitution, we can incorporate widely

accepted scientific knowledge and utilize those developments to create a

system that advances the goal of a fundamentally fair criminal justice

system even if the United States Supreme Court declines to do so under

the United States Constitution. I conclude that fundamental fairness, in

light of the science, requires a new due process approach to the admission

of evidence of eyewitness identification.

      Finally, I discuss whether defense counsel was ineffective in not

requesting a science-based eyewitness identification instruction to aid the

jury in this case. The Iowa State Bar Association (ISBA) instruction on

eyewitness identification, based on a case from the 1970s, has not been

modified to reflect the over forty years of research in the areas of cognition,

recall, and perception. The ISBA eyewitness identification jury instruction

became obsolete about twenty years ago.

      The time for a change in the instruction has not simply arrived: it

has long since passed. A competent criminal attorney who has followed

the development of the law would know that and should have requested

an appropriate modern eyewitness identification instruction that can be

found in the caselaw and scholarly literature. I conclude that the failure

to seek a science-based eyewitness identification instruction amounted to

ineffective assistance of counsel.

      II. Variables & the Identification.

      A. Eyewitnesses, Juries, and the Science.

      1. Introduction. As noted in the Doolin dissent, many states, though

not yet Iowa, have started to embrace the vast and extensive knowledge of
                                           32

eyewitness science in their judicial system. See, e.g., Young v. State, 374

P.3d 395, 417–26 (Alaska 2016); State v. Guilbert, 49 A.3d 705, 720–25

(Conn. 2012); Brodes v. State, 614 S.E.2d 766, 770–71 (Ga. 2005); State

v. Cabagbag, 277 P.3d 1027, 1034–39 (Haw. 2012); Commonwealth v.

Gomes, 22 N.E.3d 897, 907–17 (Mass. 2015); State v. Henderson, 27 A.3d

872, 896–913 (N.J. 2011); State v. Lawson, 291 P.3d 673, 685–88 (Or.

2012) (en banc); State v. Long, 721 P.2d 483, 488–91 (Utah 1986). 7

       It is virtually undisputed that over the past four decades, “serious

concerns have been raised about the potential unreliability of eyewitness

identification evidence.”        Gary L. Wells et al., Policy and Procedure

Recommendations for the Collection and Preservation of Eyewitness

Identification Evidence, 44 Law & Hum. Behav. 3, 4 (2020) [hereinafter

Wells et al., Policy & Procedures].               When it comes to eyewitness

identifications, an “[a]ccurate eyewitness identification requires that a

witness to a crime correctly sense, perceive, and remember objects and

events that occurred and recall them later.”                   Nat’l Acad. of Scis., 8

Identifying the Culprit: Assessing Eyewitness Identification 9 45 (2014)

[hereinafter Nat’l Acad. of Scis., Identifying the Culprit]. Accordingly, the

accuracy of the witness’s identification depends on the limits of the
witness’s “sensation, perception, and memory.”                 Id.   Current research

provides greater and more thorough insight into how these systems can


       7For  more states and cases embracing scientific research when evaluating
eyewitness testimony see Doolin, ___ N.W.2d at ___ n.1.
       8The National Academy of Sciences is a private, nonprofit society, established by
an Act of Congress in 1863 charged with providing “independent, objective advice to the
nation on matters related to science and technology” and “committed to furthering
science in America.” Mission, Nat’l Acad. of Scis., http://www.nasonline.org/about-
nas/mission/ [https://perma.cc/WK7W-K36D].
       9In  preparing the report, the committee heard from numerous experts,
practitioners, and stakeholders and reviewed relevant, published and unpublished,
works in the relevant scientific arena. Nat’l Acad. of Scis., Identifying the Culprit at 2.
                                     33

misdirect, misperceive, and fail the witness. In addition to the science

outlined in the Doolin dissent, there are several other points of scientific

consensus that have a bearing in the case before us.

      2. Perception, memory, and noise.      Both vision and memory are

contaminated by noise—factors that lead to uncertainty by the observer

about whether a particular signal is present. Id. at 47. In vision, noise

can be in the form of lighting, glares, shadows, obstructions, loud or

distracting sounds, and other sources relevant and not relevant to the

sensory content. Id.

      Specific to vision, when a person views an object, person, or event,

a complex process in the form of light refraction, photoreceptors, and

sensory processing occur. Id. at 50 (outlining the process and research).

While some factors are inherent to the visual system of the perceiver,

others are dependent upon the viewing conditions, such as time of

exposure and lighting. Both work together to influence the quality and

accuracy of the information gained by the observer. Id. at 50–51. Even

further, the National Academy of Sciences asserted that under the typical

viewing conditions associated with a typical crime, “[the] source of noise

may place severe limitations on the ability of the observer to sense key

pieces of information that are not present at the center of gaze.” Id. at 51.

      Similar to vision, memory is susceptible to noise. Encoding memory,

storing memory, and remembering does not occur in a vacuum, unaffected

by the outside environment. Id. at 59–60. Instead, the fidelity of our

memories face compromise at various stages in the process. “Without

awareness, we regularly encode events in a biased manner and

subsequently forget, reconstruct, update, and distort the things we believe

to be true.” Id. at 60. As such, the memory of an eyewitness is malleable

and requires care in testing.          Brandon L. Garrett, Eyewitness
                                     34

Identifications and Police Practices: A Virginia Case Study, 2 Va. J. Crim.

L. 1, 3 (2014).

        3. Estimator variables. Factors independent of the criminal justice

system are referred to estimator variables and empirical studies explain

that a wide range of those variables may have a significant effect on

eyewitness accuracy. Clifford S. Fishman & Anne T. McKenna, 7 Jones on

Evidence § 61:10 (7th ed.), Westlaw (database updated July 2019).

Estimator variables are for augmenting or discounting the credibility of

witnesses. Gary L. Wells, Applied Eyewitness-Testimony Research: System

Variables and Estimator Variables, 36 J. Personality & Soc. Psychol. 1546,

1546 (1978). I turn to the estimator variables most pertinent to the Booth-

Harris identification, focusing on those impacting vision and memory, and

how they discount the credibility of the eyewitness.

        a. Perpetrator characteristics—disguise, familiarity, and own-race

bias.    Disguises negatively impact identification accuracy.      Jamal K.

Mansour et al., Impact of Disguise on Identification Decisions and

Confidence with Simultaneous and Sequential Lineups, 36 Law & Hum.

Behav. 513, 513–14 (2012) [hereinafter Mansour et al., Disguise and

Identification] (discussing the various ways disguises can impact

identification, such as imparting less identifying information, highlighting

that disguises influence attention allocation by the witness and can

decrease the amount of information able to be encoded). The Mansour

study supported the postulation that the more disguised the target’s face

was the less likely a study participant was to make an accurate lineup

decision. Id. at 523. Additionally, the likelihood of erroneous identification

depended not only on the degree of disguise but also on what parts of the

face are disguised. Id. at 523–24. Disguises function as a type of noise
                                      35

influencing a witness’s ability to fully take in and process information. See

Nat’l Acad. of Scis., Identifying the Culprit at 69.

      Adding to the complexity of identifications, depending on the

observer’s familiarity with the face, their ability to recognize the person

varies. Angus F. Chapman et al., How Robust Is Familiar Face Recognition?

A Repeat Detection Study of More Than 1000 Faces, Royal Soc’y Open Sci.,

2,   10   (2018),    https://royalsocietypublishing.org/doi/pdf/10.1098/

rsos.170634; Nat’l Acad. of Scis., Identifying the Culprit at 68. In fact,

people are “remarkably poor” at matching unfamiliar faces. Ahmed M.

Megreya & A. Mike Burton, Unfamiliar Faces Are Not Faces: Evidence from

a Matching Task, 34 Memory & Cognition 865, 865 (2006). In Wade, the

Supreme Court cautioned that the identification of a stranger is

“proverbially untrustworthy.” United States v. Wade, 388 U.S. 218, 228,

87 S. Ct. 1926, 1933 (1967).

      Cross-race identification—identification of individuals outside of

one’s own racial group—is consistently worse than own-race identification.

Michael P. Seng & William K. Carroll, Eyewitness Testimony: Strategies

and Tactics § 2:23 (2d ed.), Westlaw (database updated Nov. 2019);

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, 3 (2001) (reviewing results of thirty years of research on

own-race bias in the memory of faces); Andrew E. Taslitz, “Curing” Own

Race Bias: What Cognitive Science and the Henderson Case Teach About

Improving Jurors’ Ability to Identify Race-Tainted Eyewitness Error, 16

N.Y.U. J. Legis. & Pub. Pol’y 1049, 1052 & n.18 (2013) (discussing the

extensive research regarding “own race bias” and how the effect results in

eyewitnesses of one race being more likely to misidentify innocent persons

when the innocent person is of another race).
                                            36

       b. Duration of exposure. Longer exposure duration—time available

to view the perpetrator—is generally associated with a witness’s ability to

subsequently identify the perpetrator. Gary L. Wells et al., Eyewitness

Evidence: Improving Its Probative Value, 7 Psychol. Sci. Pub. Int. 45, 53–

54 (2006) [hereinafter Wells et al., Eyewitness Evidence]. Legally, exposure

duration has long been thought of as a factor to be considered when

evaluating eyewitness testimony. 10                 Research confirms exposure’s

significance, finding “relatively long exposure duration produces greater

accuracy.” Nat’l Acad. of Scis., Identifying the Culprit at 97–98. Exposure

may interact with, and affect, other variables as well.

       c. Stress and attention.          The face of the perpetrator following a

traumatic event is often said to be “burned into someone’s memory” or in

making an identification, someone may claim that they’ll “never forget” the

face. Contrary to the popular belief that stress heightens one’s ability to

perceive and memorize, research actually suggests the opposite. Elizabeth

F. Loftus, Ten Years in the Life of an Expert Witness, 10 Law & Hum. Behav.

241, 254–55 (1986) [hereinafter Loftus, Ten Years]. Instead, high stress

or fear can affect eyewitness identification impacting both vision and

memory. Nat’l Acad. of Scis., Identifying the Culprit at 94; Loftus, Ten

Years, 10 Law & Hum. Behav. at 254–55 (explaining the Yerkes-Dodson

Law as a theoretical relationship between stress and memory finding low

stress and high stress impair attention); Wise et al., Criminal Eyewitness

Testimony 42 Conn. L. Rev. at 456, 505–06; Wells et al., Eyewitness


       10See   Manson, 432 U.S. at 108, 97 S. Ct. at 2250 (considering eyewitness
testimony that focused on the distance between the officer and seller, the duration of the
interaction, and lighting, ultimately noting that the officer “certainly was paying attention
to [the] identity [of] the seller”); Neil v. Biggers, 409 U.S. 188, 200, 93 S. Ct. 375, 382
(1972) (when considering the eyewitness identification the court considered the
“considerable period of time” the victim spent with her assailant and the lighting
conditions under each observation).
                                      37

Evidence, 7 Psychol. Sci. Pub. Int. at 52–53 (discussing a 2004 study on

active duty military personnel who experienced high-stress interrogations

with real physical confrontation and low-stress interrogations without

physical confrontation and concluding the low-stress interrogations

produced more accurate results).

         Another commonly held belief is that in stressful situations,

experiences become more vivid. In highly stressful conditions, vision and

memory can be affected, resulting in significant impairments in reporting

key characteristics of a face. Nat’l Acad. of Scis., Identifying the Culprit at

94. In stressful situations, an observer is faced with the choice to “select”

what they are to pay attention to, and they must do so in a short window

of time and without advance warning. Id. at 53. The noise surrounding

the environment creates competing interest that can hijack attentional

focus.     Id. at 54.   Attentional hijacking is particularly relevant when

encountering stimuli that provoke a strong emotional response, such as

fear and arousal. Id. at 55. Further, visual stimuli may trigger fear and

command attention, as is the case with a weapon. Id.

         When a person is aware that they are perceiving a significant event,

their attention is more focused, perception and their memory of the event

is improved.      Henry F. Fradella, Why Judges Should Admit Expert

Testimony on the Unreliability of Eyewitness Testimony, 2 Fed. Cts. L. Rev.

1, 10 (2007) [hereinafter Fradella, Expert Eyewitness Testimony]. Along

with significance, violence also impacts attention to the event. Id. (“Even

when witnesses understand that they are watching a significant event, ‘the

more violent the act, the lower the accuracy and completeness of

perception and memory.’ This is a function of the negative impact that

high levels of arousal and stress can produce.” (quoting Frederick Emerson

Chemay, Unreliable Eyewitness Evidence: The Expert Psychologist and the
                                          38

Defense in Criminal Cases, 42 La. L. Rev. 721, 728 (1985))). Discussing

the Yerkes-Dodson Law, Fradella noted, “When people are concerned

about personal safety, they tend to focus their attention on the details that

most directly affect their safety, such as ‘blood, masks, weapons, and

aggressive actions.’ ” Id. at 12 (quoting Curt R. Bartol & Anne M. Bartol,

Psychology and Law 221 (2d ed. 1994)). In drawing their attention towards

what may cause harm, they focus less on details of the crime scene.

       Research has shown that the presence of a weapon during a crime

captures the attention of witnesses and impedes their ability to attend to

other aspects of the event, such as the face of the perpetrator. Ani A.

Aharonian & Brian H. Bornstein, Stress and Eyewitness Memory, in

2 Encyclopedia of Psychology and Law 770 (Brian L. Cutler ed., 2008)

[hereinafter Aharonian & Bornstein, Stress and Eyewitness Memory]

(“Stress effects can also be complicated by the presence of a particularly

arousing, eye-catching aspect of the event, such as gore or a weapon.”);

Nat’l Acad. of Scis., Identifying the Culprit at 93; Fradella, Expert

Eyewitness Testimony, 2 Fed. Cts. L. Rev. at 12 (“The so-called weapons

effect describes crime situations in which a weapon is used, and witnesses

spend more time and psychic energy focusing on the weapon rather than

on other aspects of the event.”); 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, 11 (2009) [hereinafter Wells & Quinlivan, Suggestive

Eyewitness ID] (“Eyewitness experiments have consistently shown that the

presence of a weapon . . . leads to a reduced ability to recognize the face

of the culprit later.”). While recognizing research’s limitations 11 in how


       11Researchers are ethically limited to the amount of experimental stress that can

be induced in a subject. Even with highly arousing materials, participants in these
                                            39

stress, arousal, and recall influence one another, it does not mean that we

must be silent on what we do know. “[I]t is clear that, overall, high levels

of stress harm eyewitness memory in more ways than they help it.”

Aharonian & Bornstein, Stress and Eyewitness Memory at 770.

       d. Witness characteristics and condition. An eyewitness’s ability to

perceive and remember may be impacted by characteristics and conditions

of the witness themselves. Personal characteristics include intoxication,

injury, illness, age, and fatigue. Lawson, 291 P.3d at 687; Wells et al.,

Eyewitness Evidence, 7 Psychol. Sci. Pub. Int. at 54 (discussing how

intoxication has been shown to correlate with lower rates of correct

identification and how “alcohol myopia” results in less accuracy on target-

absent conditions). Research studying recall and cognition demonstrate

that cannabis intoxication affects memory.                Annelies Vredeveldt et al.,

Effect of Cannabis on Eyewitness Memory: A Field Study, 32 Applied

Cognitive Psychol. 420, 420 (2018) (discussing their study and findings of

cannabis use on identification, recall, and confidence). From the studies,

it appears that the effect of cannabis occurs in all stages of memory,

however, more research is needed to determine what stage of memory

cannabis intoxication affects the most. Id. at 421.

       e. Memory decay and contamination.                   Memory retrieval is the

“process by which stored information is accessed and brought into

consciousness, where it can be used to make decisions and guide actions.”

Nat’l Acad. of Scis., Identifying the Culprit at 65.              It is a complex and


studies are usually not personally threatened, they are bystanders rather than victims or
potential victims. These limitations likely influence stress, behavior, degree of attention,
and other factors that a victim of crime must undergo and process. Aharonian &
Bornstein, Stress and Eyewitness Memory at 770; see also Nat’l Acad. of Scis., Identifying
the Culprit at 94 (speaking about weapon effect and recognizing that it may not be possible
to sufficiently test the effects of stress and heightened stress in a laboratory setting due
to limitations on participants).
                                           40

dynamic system of encoding, 12 storing, 13 and remembering. 14 Id. at 59–

60. Memory declines over time, and once a memory is formed, it starts to

decay. See Nat’l Acad. of Scis., Identifying the Culprit at 60–61; Fradella,

Expert Eyewitness Testimony, 2 Fed. Cts. L. Rev. at 10; Gary L. Wells,

Applied Eyewitness-Testimony Research: System Variables and Estimator

Variables, 36 J. Personality & Soc. Psychol. 1546, 1552 (1978). The falsity

of stable and reliable memory was addressed in 1977 by Justice Marshall.

Manson, 432 U.S. at 131, 97 S. Ct. at 2261 (Marshall, J., dissenting) (“[T]he

fact is that the greatest memory loss occurs within hours after an event.

After that, the drop off continues much more slowly.”). Today, more than

forty years later, we know even more.

       Memory can be compromised at any stage in the process. Nat’l Acad.

of Scis., Identifying the Culprit at 60. Furthermore, quality may be affected.

Once compromised, information may “never be consolidated fully” to long-

term memory when exposure occurs under highly emotional conditions or

with highly emotional content. Id. at 61.

       Once memories are stored, there is still a possibility of modification.

Id. at 62 (“We forget, qualify, or distort existing memories as we acquire

new perceptual experiences and encode new content and associations into

memory.”).      Again, the emotional nature of the event factors into the

storage process.       Id. at 63–64 (noting that highly arousing emotional

stimuli, which tends to be more lasting than memories that are nonarousal



       12“[E]ncoding    refers to the process whereby perceived objects and events are
initially placed into storage.” Nat’l Acad. of Scis., Identifying the Culprit at 60.
       13“[S]torage refers to long-term retention of the information after encoding.” Nat’l
Acad. of Scis., Identifying the Culprit at 62.
       14Remembering     refers to retrieval by which the encoded and stored information is
brought into consciousness and is used for decision-making. Nat’l Acad. of Scis.,
Identifying the Culprit at 65.
                                           41

in stimuli, are more vivid, but are just as prone to errors and are held in

higher confidence).

       Because of this complex system, reliability is higher when the

identification is made within hours after the crime, and with any delay in

time after that, reliability decreases.           Wells & Quinlivan, Suggestive

Eyewitness ID, 33 Law & Hum. Behav. at 13 (explaining how with the

passage of time frames measured in minutes, hours, or days, more

memory loss occurs—described as the “forgetting curve”); see also Wise et

al., Criminal Eyewitness Testimony, 42 Conn. L. Rev. at 505 & n.340

(discussing the forgetting curve and retention interval).

       4. System variables.          The definition of system variables has

broadened over time to include “factors under the control of the justice

system that relate to (as opposed to influence) the accuracy of eyewitness

identifications. Wells et al., Policy & Procedures, 44 Law & Hum. Behav.

at 6. System variables were discussed in great length in Doolin, ___ N.W.2d

at ____. Only the system variables of concern here will be discussed. 15


       15Preidentification
                         instructions and blind administration will not be discussed.
During the Booth-Harris identification, Watson was read the photographic admonition
before each photo array was presented. The admonition stated,
       You are about to view a photographic line-up. The person who committed
       the crime may or may not be included in it. While looking at the
       photographs, keep an open mind that the individuals may not appear
       exactly as they did on the date of the crime. Their hairstyles, facial hair,
       clothing etc. may have changed. Also, photographs may not always depict
       the true complexion of a person, who may be lighter or darker than shown
       in the photo. The officer showing you the photographs has no knowledge
       of the incident. In the line-up process, the photograph will be shown to
       you one at a time and are not in any specific order. Take as much time as
       you need to look at each photograph. Even if you identify an individual
       the officer will continue to show you each photograph. The officer is not
       allowed to tell you whether your choice, if you make one, is a suspect in
       the investigation. Do not tell other witnesses that you have or have not
       identified anyone.
Also, the two arrays were conducted under a double-blind administration since the
administrator was not involved in the investigation and did not know the identity of the
                                           42

       a. Lineup construction. There is significant research and writing on

the proper construction of a lineup or photo array. Guidance has been

provided by the Department of Justice (DOJ), local police departments,

and scientific research generally. The most common police-arranged tool

for identification is the photo array. Nat’l Acad. of Scis., Identifying the

Culprit at 23. Importantly, the suspect must not stand out from the fillers

in the array. Third Circuit Task Force, 2019 Report of the United States

Court of Appeals for the Third Circuit Task Force on Eyewitness

Identifications, 92 Temp. L. Rev. 1, 35 (2019) [hereinafter Third Circuit

Task Force, 2019 Report]; Memorandum from Sally Q. Yates, Deputy Att’y

Gen., Dep’t of Justice, to Heads of Dep’t Law Enf’t Components, All Dep’t

Prosecutors        (Jan. 6,   2017)     [hereinafter      Yates     Memo],       https://

www.justice.gov/archives/opa/press-release/file/923201/download) (on

Eyewitness Identification: Procedures for Conducting Photo Arrays,

Procedures 3.2, 16 3.3. 17



suspect. See Doolin, ___ N.W.2d at ___ (further discussing preidentification instructions
and blind administration along with cited sources).
       16Fillersshould generally fit the witness’s description of the perpetrator,
       including such characteristics as gender, race, skin color, facial hair, age,
       and distinctive physical features. They should be sufficiently similar so
       that a suspect’s photograph does not stand out, but not so similar that a
       person who knew the suspect would find it difficult to distinguish him or
       her. When viewed as a whole, the array should not point to or suggest the
       suspect to the witness.
       17Where  the suspect has a unique feature, such as a scar, tattoo, or mole,
       or distinctive clothing that would make him or her stand out in a photo
       array, filler photographs should include that unique feature either by
       selecting fillers who have such a feature themselves or by altering the
       photographs of fillers to the extent necessary to achieve a consistent
       appearance.      If the suspect’s distinctive feature cannot be readily
       duplicated on the filler photographs, then the suspect’s feature can be
       blacked out and a similar black mark can be placed on the filler
       photographs. The administrator should document any alterations to
       either the fillers or the suspect’s photograph as well as the reason(s) for
       doing so.
                                           43

      b. Showups. 18 A showup occurs when a single suspect is shown to

a witness, typically live, and soon following the crime. In the scientific

community, showups, by their nature, are generally regarded as

suggestive. Third Circuit Task Force, 2019 Report, 92 Temp. L. Rev. at 41.

As the Supreme Court declared over fifty years ago, “It is hard to imagine

a situation more clearly conveying the suggestion to the witness that the

one presented is believed guilty by the police.” Wade, 388 U.S. at 234, 87

S. Ct. at 1936; accord Doolin, ___ N.W.2d at ___. When a witness is shown

a single photograph, there is an increased danger of error in identifying a

person.   See State v. Mark, 286 N.W.2d 396, 404 (Iowa 1979).                         See

generally Amy Luria, Showup Identifications: A Comprehensive Overview of

the Problems and a Discussion of Necessary Changes, 86 Neb. L. Rev. 515

(2008).

      c. Repeated exposure. Research supports that repeated viewings of

a suspect are risky due to mugshot exposure, unconscious transference,

and source confusion. Kenneth A. Deffenbacher et al., Mugshot Exposure

Effects: Retroactive Interference, Mugshot Commitment, Source Confusion,

and Unconscious Transference, 30 Law & Hum. Behav. 287, 287–88

(2006). Repeated exposure through a mugshot book, showup, or lineup,

increases the chance of being identified in a later identification even if an

initial identification did not occur in the first identification procedure.

Wells et al., Policy & Procedures, 44 Law & Hum. Behav. at 25 (citing

studies supporting the finding); see also Brandon L. Garrett, Eyewitnesses

and Exclusion, 65 Vand. L. Rev. 451, 470 (2012) [hereinafter Garrett,

Exclusion].




      18See   Doolin, ____ N.W.2d at ___ (discussing showups and related research).
                                            44

       d. Feedback to witness.            Outside information presented to the

witness can contaminate an identification. The DOJ issued guidance on

eyewitness       identifications    and    suggests     avoiding     “words,     sounds,

expressions, actions[,] or behaviors” suggesting who the suspect is. Yates

Memo, Procedure 8.1, at 5.              Should an identification be made, the

administrator should ask for a confidence statement. Id. Procedure 8.2,

at 5. If the witness provides a “vague” answer, the administrator should

ask for the witness to provide clarification.              Id. Procedure 8.3, at 5.

Investigator or administrator feedback may result in the witness being

more inclined to make an identification or may inflate the witness’s

confidence in their selection. Id. at 8.

       e. Level of confidence. 19 With the broadening of the definition of

system variables, confidence statements may now fall under system

variables because of their ability to be easily contaminated by events that

are under the control of system actors. Wells et al., Policy & Procedure, 44

Law & Hum. Behav. at 6. Under pristine identification procedures, 20 the

confidence that a witness expresses is usually a “highly reliable indicator

of accuracy.” John T. Wixted & Gary L. Wells, The Relationship Between

Eyewitness Confidence and Identification Accuracy: A New Synthesis, 18
Psychol. Sci. Pub. Int. 10, 11 (2017). Confidence correlates to pristine

conditions, when the memory is first tested, and before contamination

occurs. Id. at 13.


       19See   Doolin, ____ N.W.2d at ___ (regarding witness confidence and corresponding
research).
       20The  pristine lineup conditions identified were (1) including only one suspect per
lineup, (2) including a suspect that does not stand out in the lineup, (3) cautioning that
the suspect might not be in the lineup, (4) using double-blind testing, and (5) collecting
a confidence statement at the time of the identification. John T. Wixted & Gary L. Wells,
The Relationship Between Eyewitness Confidence and Identification Accuracy: A New
Synthesis, 18 Psychol. Sci. Pub. Int. 10, 20 (2017).
                                        45

       I now turn now to the facts of the case and apply these factors.

       B. The Flawed Identification.

       1. The limited opportunity to identify the shooter at the scene.

During his interview at the scene with Officer Fogle, Watson stated that

he, his cousin Deonte Carter, and Carter’s friend, Edward DeWitt, were

talking at the park when they noticed a large group of black males standing

on the corner of 8th and Elm. Except for Terrance Polk, Watson stated he

did not recognize any of the males in the other group.

       The group of men continued to talk when “the next thing he knew,”

a black male approached them.                Watson provided a very detailed

description of the clothing the male was wearing. Watson reported the

male was wearing a “dark colored windbreaker and a black hoodie

underneath with the hoodie pulled up, wearing blue jeans, brown boots,

and a black skull cap pulled over his forehead where [Watson] couldn’t see

his face.” He did however notice something at the man’s side: a gun. After

a brief exchange of words between the male and Carter, the male raised

the gun from his side, hesitated, and put it back down. Carter then said

to the man, “do what you’re gonna do,” and following those words, shooting

began.

       Watson stated that once the shooting started he took off running

and only returned after the shooting ended. He returned to a traumatic

and chaotic scene, with his cousin bleeding on the ground, and called 911.

       Watson was interviewed at the scene by the officers. While he was

not able to provide much of a physical description of the shooter, outside

of clothing, he could provide a description of the gun, a silver-colored gun

believed to be .40 or .45 caliber. 21      Watson was escorted to the police

       21When asked about how he estimated the caliber, Watson stated his estimation
was based on the shell casings surrounding the scene.
                                          46

station for further interviewing. In Officer Fogle’s report it is noted that he

asked Watson “several times” if he knew the shooter and Watson stated he

did not.

       Watson was able to provide a final description to Detective

Schwandt, stating the shooter was a black male, about 5’11”, 150 pounds,

twenty-one to twenty-two years old, and with a light beard. He provided

more information about the clothing the shooter was wearing, adding the

shooter was wearing a black hat with yellow letters. Also at this time,

Watson admitted to smoking marijuana before arriving at the park. The

detective could still smell the marijuana emanating from his person.

       Watson was shown a photo array soon after the shooting, and he

did not pick anyone out as the shooter. 22 Watson was then shown a stand-

alone picture of Booth-Harris. 23 He did not indicate that he knew Booth-

Harris, and he did not identify him as the shooter. So even when provided

with a one person showup, relatively shortly after the shooting, Watson

could not make the identification.

       Based upon the events that unfolded, it is clear that there were

troublesome estimator variables that potentially impacted his perception

and memory of the event. The shooter was well disguised in that Watson
stated he could not see his face. It is difficult to make a solid identification

when one cannot see the perpetrator’s face. Further, the shooter had a

weapon and pointed it once or twice during the short interaction, thus


        22 The police initially thought Polk was the shooter and had a picture of Polk in

the first array shown to Watson. Watson did not identify Polk as the shooter.
       23When asked why he presented the picture of Booth-Harris to the witness,

Detective Schwandt testified,
              Q. Why did you show him the picture then? A. Well, we just had a
       shooting in Burlington and there’s a subject with a gunshot wound. We don’t
       know if he’s a victim. We don’t know if he’s a suspect. We don’t know if he’s a
       bystander, so at that time we’re not sure what his involvement was.
                                           47

triggering weapons focus. The encounter was brief. Watson stated during

his interview two days later that everything happened quickly. It was a

stressful and emotional event and the person who approached Watson was

a stranger.

       The majority argues that Watson could see the shooter from the nose

to his forehead and the description of the shooter was largely accurate with

the   exception     of   the    height    estimate.       In    fact,   there   was    no

contemporaneous description of the shooter.                    The descriptions came

during the time Watson was viewing photographs.                         There was no

description about a sharp jawline until Watson was shown the photo of

Booth-Harris. The only description provided regarding facial features was

the light facial hair, an observation which is inconsistent with Watson’s

prior statement of being able to see the shooter’s nose and forehead. 24 The

eyes were described only during the viewing of the second and third photo

arrays. In short, in the immediate aftermath of the crime when memory

remains fresh, Watson described the shooter’s clothes, height, and weight,

not his face or facial features. That came later, and only when shown

pictures by police and only after a one person showup presentation of

Booth-Harris.
       These facts demonstrate that Watson did not have a clear view of

the face of the perpetrator, had a very limited opportunity to view what he

could see, and was exposed to the distraction of the presence of a weapon.

       2. The use of a highly disfavored suggestive showup. After being

shown the array including Polk, Watson was shown a stand-alone picture

of Booth-Harris. Detective Schwandt noted in his report that at the time


       24During the police briefing following the execution of the search warrant of Booth-
Harris’s home, Detective Moret, the detective who lead the search, heard that the shooter
wore “a mask covering part of his face.”
                                     48

he was “advised Earl Booth-Harris [was] currently at the Monmouth

hospital speaking to Det[ective] Tripp because he also had sustained a

gunshot wound to the leg during the incident.”

      At the time Booth-Harris’s photo was shown, the officer was

operating as if he may be a suspect. When asked why the photo was

presented, the detective acknowledged that Booth-Harris may have been a

suspect and they were trying to ascertain his role. The use of showup

procedures calls into question subsequent identifications. “Regardless of

how the initial misidentification comes about, the witness thereafter is apt

to retain in his memory the image of the photograph rather than of the

person actually seen, reducing the trustworthiness of subsequent lineup

or courtroom identifications.” Simmons v. United States, 390 U.S. 377,

383–84, 88 S. Ct. 967, 971 (1968).

      Here, the use of the single picture was improper. There was no real

urgency. Watson and the detective were at the police station, and Watson

had already participated in one array. In Monmouth, Booth-Harris was at

the hospital seeking medical care and was speaking to an officer. There is

no excuse justifying the use of the highly suggestive process of a showup

under the circumstances present.      If the investigator had the time to

secure a photo of Booth-Harris, knowing that he could be a suspect, the

photo could have been put into an array or lineup with fillers. See Wells

et al., Policy & Procedures, 44 Law & Hum. Behav. at 7.

      Yet, even with the suggestive procedure, on the day of the shooting,

when Watson’s memory was the most accurate, he could not make the

identification.   When presented with the photo of Booth-Harris, he

reported that he did not know who the person in the photo was.          So,

notwithstanding the highly disfavored process, no identification was made.
                                    49

But by showing a single person to Watson, an element of suggestiveness

was injected into the identification process.

      3. The improper double arrays, with a heavy dose of suggestion. Two

days after the shooting, when memory would have dramatically decayed,

Watson was interviewed again by police. Sergeant McCune, who was not

involved with the case, administered the lineup while Detective Tripp

prepared it. Sergeant McCune read the photographic admonition before

showing Watson the photos.

      During the first photo array, Watson lingered on the photo of Booth-

Harris and expressed some hesitancy to say definitively that Booth-Harris

was the shooter.   Watson expressed concern about his memory of the

shooter’s eyes and eyebrows versus those of Booth-Harris. He expressed

concern regarding his memory of the shooter’s height and weight versus

those of Booth-Harris. Watson was able to say the “strong jaw structure”

was something that he noticed in the shooter, and Booth-Harris appeared

to have a jaw structure that reminded him of the shooter. Also, Watson

stated that the jaw structure of the shooter was the “only thing he could

kind of see.”   Watson concluded that array with a 50% certainty that

Booth-Harris was the shooter, but also prefaced his 50% certainty with a

statement to the administering officer that “[stuff] happened so quick.”

      At this point, the police did not have much.          They had no

contemporaneous description of the shooter, got a nonidentification in a

highly suggestive one person showup, and got a 50% confidence

identification when Watson was presented an array with Booth-Harris.

The police elected to attempt yet a third identification process, another

photo array.

      In the new photo array, Watson, seeing Booth-Harris for the third

time, identified Booth-Harris as the shooter with 70% certainty, noting
                                       50

that “he doesn’t know for sure, but the [stuff] just like match, the eyeballs

and [stuff] like that.” This response, though marginally better than the

result in the first photo array, was hardly sufficient to overcome potential

reasonable doubt. Rather than rest here, the police pressed on with a

dialogue designed to push Watson to make a more positive identification.

Sergeant McCune begins tapping repeatedly on the photo of Booth-Harris

and exclaims “yeah.” Watson now declared, “nah, I feel like that’s him.”

Sergeant McCune then tells Watson that “feeling like it” is more than 70%

certainty and then asks if they are more at 100% certainty, to which

Watson replies, “might as well say 100.” Watson is then asked to put 100%

on the back of the photo and initial it.

      The suggestiveness here is not inconsequential. As noted by one

commentator,     “[E]ven    fairly   minimal   confirmatory   feedback   can

significantly inflate a witness’s assessment of her own confidence.” Keith

A. Findley, Implementing the Lessons from Wrongful Convictions: An

Empirical Analysis of Eyewitness Identification Reform Strategies, 8 Mo. L.

Rev. 377, 393 (2016).      This case presents a classic example of highly

inappropriate suggestiveness.

      It is important to note that both Watson and Booth-Harris are

African-Americans. Research shows we are better at identifying people of

the same racial identity.     Booth-Harris was a constant fixture among

pictures of other black men with different skin tones, nose widths, and

other Afrocentric features that Watson is attuned to recognizing. See Yair

Bar-Haim et al., Nature and Nurture in Own-Race Face Processing, 17

Psychol. Sci. 159, 160 (2006) (discussing research for own-race advantage

and why people tend to be better at recognizing own-race faces); see also

Doolin, ___N.W.2d at ___ (discussing more research as it relates to
                                      51

Afrocentric features, recognition, and impact on the criminal justice

system).

      Watson was exposed to Booth-Harris’s photo on three different

occasions after the shooting. Watson arrived at 100% certainly after three

views, one of which was a showup where no identification was made;

another at which Watson expressed doubt and eventually landed on a 50%

certainty identification; and finally, in a remarkable third process, where

police inquired whether Watson’s clearly expressed 70% certainty should

be something else, leading Watson to arrive at a 100% certainty.

      To begin with, the impact of repeated exposures is extremely

powerful:

      A prior viewing of a suspect at an identification procedure may
      reduce the reliability of a subsequent identification procedure
      in which the same suspect is shown. A prior viewing of a
      suspect in an identification procedure raises doubts about the
      reliability of a subsequent identification procedure using the
      same suspect.

Gomes, 22 N.E.3d at 916 (emphasis omitted); see also Henderson, 27 A.3d

at 900 (stating that multiple viewings of a suspect can affect later reliability

due to risk of being unable to discern the source of recognition); Lawson,

291 P.3d at 686–87 (same). Repeated exposure calls the identification into

question. Watson was shown pictures of the same black male three times.

To say Booth-Harris did not stand out is to ignore common sense and what

science tells us. Tiffany Huinz & Kathy Pezdec, The Effect of Exposure to

Multiple Lineups on Face Identification Accuracy, 25 Law & Hum. Behav.

185, 195–97 (2001); John S. Shaw III & Kimberly A. McClure, Repeated

Postevent Questioning Can Lead to Elevated Levels of Eyewitness

Confidence, 20 Law & Hum. Behav. 629, 630–31, 649–50 (1996).

      Further, there can be no doubt that in the third identification

process involving a photo of Booth-Harris, the exchange between Watson
                                     52

and Sergeant McCune suggested to Watson that he could or should inflate

his level of certainty from 70% to 100%. The State maintains this was not

“encouragement” but instead an inquiry into what 70% certainty meant.

An inquiry into what 70% certainty meant resulted in a 30% certainty

increase and an expression of acquiescence in the form of the comment

“might as well.” If this was the case, why was there no similar inquiry into

ascertaining what 50% certainty meant during the first identification? And

when does “feeling like it,” while at the same time saying, “I don’t know for

sure,” equal 100% certainty?

      The DOJ recommends administrators avoid words, sounds,

expressions, and actions that suggest who the suspect is. Yates Memo,

Procedure 8.1, at 5. Once an identification has been made, a confidence

statement should be obtained. Id. Procedure 8.2, at 5. And only if the

statement is vague, and 70% is not vague, is the administrator to ask for

clarification. Id. Procedure 8.3, at 5. The DOJ provides examples of how

further exploration should be obtained. Per the DOJ, the witness should

be asked, “You said [I think it’s #4]. What do you mean by that?” Id. The

exemplary question of “what do you mean by that,” and what happened in

practice with tapping on Booth-Harris’s picture and the statement of

feeling like it is more than 70%, are two entirely different things. The only

question presented was to the effect of “we’re thinking we’re more like

100%.”

      The conduct here is beyond any clarifying question or statement and

is an explicit question to the witness to significantly increase his certainty

to a level that a jury could not help but place great weight in. “[T]here is

almost nothing more convincing [to a jury] than a live human being who

takes the stand, points a finger at the defendant, and says ‘That’s the

one!’ ” Watkins v. Sowders, 449 U.S. 341, 352, 101 S. Ct. 654, 661 (1981)
                                     53

(Brennan, J., dissenting) (quoting Elizabeth F. Loftus, Eyewitness

Testimony 19 (1979)). Now, the State was able to say there is a witness

who is 100% certain in his identification, when in reality he did not himself

say he was 100% certain, but he accepted the suggestion of the officer.

The suggestion is of 100% certainty.       Those words and numbers are

powerful.   They were obtained in an impermissibly suggestive manner

when the officer asked Watson if he was at 100% certainty and did not

accept his initial answer of 70% certainty. To call this anything other than

an encouragement to inflate his level of certainty is, at best, disingenuous.

      4. Testimony. The majority also points to the testimony of Watson

where he states he lied about not knowing Booth-Harris.            But, the

questioning continued beyond the portion cited in the majority opinion:

            Q. As a matter of fact, didn’t Officer Schwandt show
      you a photo lineup that day? A. Yeah. Yes.

            Q. And did you identify Earl Booth-Harris from the
      lineup? A. I think it was, like, a 70 percent chance or
      something like that, and then I think he brought some other
      pictures in or whatever.

             Q. Isn’t it a fact that he showed you Earl Booth-Harris’
      photograph all by itself apart from the lineup that day? A. I
      don’t remember. I think it was all on one paper.

            Q. But, in any event, would you agree that if [Officer
      Schwandt] [showed a photo lineup], you didn’t identify Earl
      Booth-Harris as the shooter on February 16th? A. Could you
      ask that question again.

           Q. Would you agree that you never identified Earl
      Booth-Harris as the shooter on February 16th? A. No, I did.

            Q. I’m sorry? A. I think I did, and I think I wind up
      reneging on it or something like that. I don’t know.

             Q. Are you telling us that you don’t know whether you
      identified him or not? A. The first time, like, yeah, I think I
      lied or something like that. Like, yeah, I -- I seen him, and
      then I went over the picture saying that I didn’t see him.
                                        54

      Watson did not say that the person he failed to identify was Booth-

Harris. Watson was familiar with Polk and was shown an array with Polk

on the 16th. Watson was shown an individual picture of Booth-Harris on

the 16th. He failed to identify either of them. Watson is confusing dates

and lineups. On the 16th, Watson was presented with a lineup involving

Polk, not Booth-Harris. Even more problematic, the jury may have been

lead to believe that on the day of the shooting an identification was made

and Watson reported his certainty at 70%.

      The State argues that Watson remembered seeing the picture of

Booth-Harris on the day of the shooting but declined to identify him

because of fear of law enforcement. The fear of law enforcement reconciles

with Watson lying about the gun on the day of the shooting, but not with

his failure to identify Booth-Harris.

      If Watson declined to identify Booth-Harris on the day of the

shooting out of fear, why two days later did he identify him with 50%

certainty during the first lineup? Why did his certainty only jump 20%

when he saw him for the third time and only get to 100% after speaking

with the Sergeant?     If Watson had lied or simply failed to make the

identification the day of the shooting, why did he not come in with 100%

certainty after being presented with the first photo of Booth-Harris?

     III. Due Process Analysis Under the United States and Iowa
Constitutions.

      This case involves the question of due process rights and eyewitness

identification under both the Iowa and United States Constitutions. Under

the Iowa Constitution, we “jealously reserve” the right to reach results

different from the United States Supreme Court under our parallel

provisions. State v. Ingram, 914 N.W.2d 794, 799 (Iowa 2018); see, e.g.,
                                     55

Zaber v. City of Dubuque, 789 N.W.2d 634, 654 (Iowa 2010); State v.

Wilkes, 756 N.W.2d 838, 842 n.1 (Iowa 2008).

      The Fourteenth Amendment provides that no state “shall . . . deprive

any person of life, liberty, or property, without due process of law.” U.S.

Const. amend. XIV. Article I, section 9 of the Iowa Constitution requires

that “no person shall be deprived of life, liberty, or property, without due

process of law.” Iowa Const. art. I, § 9. Our caselaw states that “[a]lthough

the Iowa and United States Constitutions have similarly worded [due

process] provisions, that does not mean the two regimes and the cases

under them may be conflated.” Ingram, 914 N.W.2d at 799.

      In Doolin, ___ N.W.2d. at ____, the United States Supreme Court

precedent of due process and eyewitness testimony was thoroughly

discussed by the dissent.     The Doolin dissent noted that through the

various cases before the Court, the reliability analysis focused on “a very

substantial likelihood of irreparable misidentification.” Id. at ___ (quoting

Simmons, 390 U.S. at 384, 88 S. Ct. at 971). It also focused on the role of

law enforcement and their actions in the scope of due process analysis. It

is an incredibly forgiving standard that was created over forty years ago.

      Further in the Supreme Court analysis is the Neil v. Biggers and

Manson framework. See Manson, 432 U.S. 98, 97 S. Ct. 2243 (majority

opinion); Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 275 (1972). While these

cases somewhat considered the application of scientific evidence, these

decisions embraced a case-by-case, multifactor analysis that was

ultimately uninformed by science. See Doolin, ___ N.W.2d at ____ n.4;

Wells & Quinlivan, Suggestive Eyewitness ID, 33 Law & Hum. Behav. at 5

(noting the late 1970s is generally regarded as the birth of modern

eyewitness research, and the work of researchers during that time did not

appear in law reviews or other publications for legal consideration, but
                                     56

instead appeared in peer-reviewed psychology journals). However, even

before the explosive growth of science regarding eyewitness evidence, the

role of misidentification in wrongful convictions was “well established”

through Edwin Borchard’s 1932 book, Convicting the Innocent, where

Borchard claimed eyewitness errors were “perhaps a major source” of

wrongful convictions. Nicholas A. Kahn-Fogel, The Promises and Pitfalls of

State Eyewitness Identification Reforms, 104 Ky. L. J. 99, 107 (2016)

[hereinafter Kahn-Fogel, Promises & Pitfalls] (quoting Edwin M. Borchard,

Convicting the Innocent: Sixty-Five Actual Errors of Criminal Justice 367

(1932)).   Before Bouchard, in 1908, Hugo Münsterberg penned On the

Witness Stand: Essays on Psychology and Crime where the unreliability of

eyewitness memory was demonstrated. Id. at 107 & n.43. Today we know

even more with thousands of published and peer-reviewed studies and

articles on eyewitness testimony. Why would we disregard them?

      The issue isn’t whether the identification would stand our current

standard, the Biggers/ Manson test that has been determined to be

unscientific and very forgiving. The majority’s use of Neal demonstrates

how forgiving the standard is. See State v. Neal, 353 N.W.2d 83 (Iowa

1984).     In Neal, six days after the assault, the victim was shown

photographs and made an identification that most closely resembled her

assailant. Id. at 87. It wasn’t until almost two weeks later, when she was

shown another array with the defendant, that she identified him as her

assailant.   Id. at 89.   The acceptance of this identification rejects the

science the majority states they acknowledge. In Neal, the court calls

attention to how “even rather startling differences” between the defendant

and other fillers in arrays have not resulted in findings of suggestiveness.

Id. at 88. The current standard fails to provide adequate protections by

rejecting system and estimator variables.
                                             57

       Since the time of the Manson Court, social science has demonstrated

how “unhelpful and flawed” the Manson factors are in the proper

evaluation of witness reliability. Garrett, Exclusion, 65 Vand. L. Rev. at

468. This is especially troubling because the Manson Court emphasized

that “reliability is the linchpin in determining admissibility of identification

testimony.” Manson, 432 U.S. at 114, 97 S. Ct. at 2253. Despite this

extensive body of work, the Court has not revisited the Biggers/ Manson

test for eyewitness reliability.            In Perry v. New Hampshire, Justice

Sotomayor, dissenting, discussed the incredibly high bar set for excluding

eyewitness identification testimony and highlighted that there has been

one case 25 at the time of the opinion where a due process violation was

found. 565 U.S. 228, 261, 132 S. Ct. 716, 737 (2012) (Sotomayor, J.,

dissenting). Ultimately, the federal framework continues to ignore the

mounting body of evidence that has “reinforced every concern [the Court’s]




       25See   Foster v. California, 394 U.S. 440, 89 S. Ct. 1127 (1969). In Foster, the first
lineup procedure involved three men: Foster, who was close to six feet tall, and two other
men, who were approximately six inches shorter. Id. at 441, 89 S. Ct. at 1128. The
witness during the lineup was unable to identify Foster and asked to speak with him in
a room. Id. After the one-on-one confrontation, the witness was still unable to identify
Foster. Id. A week or ten days later, the police arranged for the same witness to
participate in a second lineup. Id. This time, there were five men present, and Foster
was the only repeat between the two lineups. Id. at 441–42, 89 S. Ct. at 1128. After the
second lineup, the witness was “convinced” Foster was the man. Id. at 442, 89 S. Ct. at
1128. The Court concluded the case presented “a compelling example of unfair lineup
procedures.” Id. The Court concluded that in the first lineup, Foster stood out because
of the contrast of heights, the jacket he was wearing (a jacket that was similar to that
worn by the robber), and the one-on-one confrontation. Id. at 442–43, 89 S. Ct. at 1128.
Further, the Court highlighted that “[t]he practice of showing suspects singly to persons
for the purpose of identification, and not as part of a lineup, has been widely condemned.”
Id. at 443, 89 S. Ct. at 1128–29 (alteration in original) (quoting Stovall v. Denno, 388 U.S.
293, 302, 87 S. Ct. 1967, 1972 (1967), abrogated on other grounds by United States v.
Johnson, 457 U.S. 537, 102 S. Ct. 2579 (1982)). After a tentative identification, another
lineup was arranged, Foster was the only repeat in the first and second lineups, and only
after all of this process was a definite identification produced. Id. The Court concluded
that the suggestive procedure all but stated to the witness that “this is the man.” Id. at
443, 89 S. Ct. at 1129.
                                     58

precedents articulated nearly a half-century ago.” Id. at 565 U.S. at 262–

63, 132 S. Ct. at 738.

      In Booth-Harris’s motion to suppress the eyewitness testimony, he

argued due process violations under the Fourteenth Amendment to the

United States Constitution and article I, section 9 of the Iowa Constitution.

Recently, in State v. Shorter, 893 N.W.2d 65 (Iowa 2017), we specifically

noted that the defendant did not raise a state constitutional challenge

regarding the eyewitness identification evidence in his case. Id. at 74.

Today we should address this issue and utilize science to take steps within

our control to ensure due process under the Iowa Constitution when

eyewitness evidence is proposed.

      [For] “the law will always lag behind the sciences to some
      degree because of the need for solid scientific consensus
      before the law incorporates its teachings . . . .” Appellate
      courts have a responsibility to look forward, and a legal
      concept’s longevity should not be extended when it is
      established that it is no longer appropriate.

Brodes, 614 S.E.2d at 771 (quoting Long, 721 P.2d at 491). If reliability is

truly the linchpin of admissibility, we must recognize and utilize the years

of research that have shown the Biggers/ Manson framework is unreliable

and outdated, leading to a lack of reliability.       We have a scientific

consensus on many issues that can be applied to safeguard due process

rights.

      A few states, in interpreting their state constitutional due process

requirements, have explicitly rejected the Biggers/ Manson framework,

and this court should follow their lead.       As stated by Greg Hurley,

Knowledge and Information Services Analyst for the National Center for

State Courts,

      To protect the public from wrongful convictions based on an
      eyewitness misidentification, it is important that both law
      enforcement and the courts take notice of recent
                                        59
       developments on the issue in the social sciences. The courts
       must be aware of the malleable nature of human memory and
       the lineup practices used by law enforcement in the
       jurisdiction. Although they are downstream of the primary
       problem, the courts have the power and duty to properly
       instruct jurors, the ability to refuse to admit evidence that does
       not meet a fundamental level of trustworthiness, and the ability
       to work with justice system partners to improve the criminal
       justice system.

Gary Hurley, Nat’l Ctr. for State Cts., Trends in State Courts: The Trouble

with    Eyewitness     Identification    Testimony    in    Criminal    Cases,

https://www.ncsc.org/microsites/trends/home/Monthly-Trends-

Articles/2017/The-Trouble-with-Eyewitness-Identification-Testimony-in-

Criminal-Cases.aspx (emphasis added).

       States are interpreting their due process clauses and are modifying

how eyewitness identification testimony is used in trial. See Young, 374

P.3d at 412–28 (holding the Manson test does not adequately protect due

process rights under the Alaska Constitution and utilizing scientific

evidence in adopting a new approach); State v. Harris, 191 A.3d 119, 123,

133–45 (Conn. 2018) (reaffirming the due process clause under the state

constitution provides greater protection than the Federal Constitution and

utilizing other state precedent of estimator and system variables);

Commonwealth v. Johnson, 650 N.E.2d 1257, 1260, 1261 (Mass. 1995)

(rejecting the Manson reliability test as an accurate interpretation of the

state’s due process clause); State v. Adams, 423 N.E.2d 379, 383–84 (N.Y.

1981) (rejecting Manson test under the state’s constitution); cf. State v.

Lujan, 459 P.3d 992, 1000–05 (Utah 2020) (utilizing scientific research in

determining admissibility of eyewitness testimony under the Utah Rules of

Evidence while reserving the possibility that the Utah due process clause

may differ from the federal standard).

       The majority cites State v. Roberson, 935 N.W.2d 813 (Wis. 2019),

and their about-face in utilizing eyewitness science in determining
                                     60

admissibility. The Roberson opinion focuses attention on social science

and the role of social science in the application and interpretation of law.

I agree with that assertion to a degree. Social science is characterized as

a branch of science dealing with human behavior in its social and cultural

aspects. Should courts use the social science that was utilized to endorse

the theory of racial inferiority that was the catalyst for racist policy and

judicial decisions? No. We must also recognize that the perception or

“science” of inferiority had no scientific basis. Social science that helped

shape racially discriminatory policy, as mentioned in Roberson, was based

on physical characteristics and if someone was “well-born.” Id. at 821–22.

In recognizing that use of social science in judicial decision-making, we

must also attribute social science’s contributions to socially important

decisions. See id. at 834 (Dallet, J., dissenting) (citing decisions leading

to the decriminalization of consensual same-sex intimate conduct and the

abolition of the death penalty against the mentally ill and juveniles).

      Today, however, social science of societal beliefs is not the science I

would rely upon.        Eyewitness science utilizes studies that have a

foundation in neuroscience and other disciplines, from studies that are

reliable. Missing from both the Roberson opinion and today’s majority is

the research that calls into question the validity or reliability of the

information presented, through methodologies that are tested and retested

through various other methodologies.       The science is sound and the

wrongful convictions resulting from misidentification provide support to

the notion that there is a problem with the way eyewitness identification

testimony is handled.

      This isn’t the “social science . . . embod[ying] the subjective beliefs

of the time.” Id. at 822 (majority opinion). This isn’t the same type of

science that reinforced the beliefs and findings of Plessy v. Ferguson,
                                    61

antimiscegenation laws, and forced sterilizations. See Plessy v. Ferguson,

163 U.S. 537, 16 S. Ct. 1138 (1896), overruled by Brown v. Bd. of Educ.,

347 U.S. 483, 495, 74 S. Ct. 686, 692 (1954). The science of eyewitness

identification is not rooted in the subjective belief of superiority or

inferiority, and this is not a societal value. It is based in how the brain

perceives, how the brain recalls, and how the brain processes. In Justice

Dallet’s dissent, she stated that the majority, by abrogating State v.

Dubose, 699 N.W.2d 582 (Wis. 2005), “erodes the due process protection

afforded by the Wisconsin Constitution and places jurors in the impossible

position of separating the taint of a suggestive single photo identification

from its reliability.” Roberson, 935 N.W.2d at 831 (Dallet, J., dissenting).

      Under the current Biggers/ Manson factors, we are asked to balance

the corrupting effects of a suggestive identification procedure against

reliability factors that decades of research have indicated are unreliable.

This practice is harmful to those who encounter our criminal justice

system and does little to deter suggestive practices engaged in by law

enforcement.   Federally, “[t]he development of due process protections

against mistaken identification evidence, begun in Stovall, was continued

in Simmons” and has effectively ended in the Manson framework. Manson,

432 U.S. at 121, 97 S. Ct. at 2256 (Marshall, J., dissenting). “But, the

Federal Constitution merely sets a ‘constitutional floor’ below which state

constitutional interpretations may not sink.” Mark S. Cady, The Vanguard

of Equality: The Iowa Supreme Court’s Journey to Stay Ahead of the Curve

on an Arc Bending Towards Justice, 76 Albany L. Rev. 1991, 1992 (2013).

      Iowa has a history of protecting those within our borders before

federal courts reached the opposite or same conclusion. See Varnum, 763

N.W.2d at 906–07 (finding same-sex marriage equality six years before
                                             62

Obergefell26); Coger v. Nw. Union Packet Co., 37 Iowa 145, 153–54 (1873)

(providing equality in public accommodations twenty years before Plessy27

arrived at the separate but equal doctrine); Clark v. Bd. of Dirs., 24 Iowa

266, 274 (1868) (desegregating public schools over eighty years before the

Brown 28 decision); In re Ralph, 1 Morris 1 (1839) (extending equal

protection to all men, regardless of color, and eighteen years before the

Supreme Court reached the opposite conclusion in the Dred Scott29

decision).

       In Wade, the Court called attention to the “annals of criminal law

[being] rife with instances of mistaken identification,” of which we know

now more than ever. 388 U.S. at 228, 87 S. Ct. at 1933. The Manson

factors   “are      flatly   contradicted     by   well-respected      and    essentially

unchallenged empirical studies,” and the “time has come for a more

empirically sound approach.” State v. Ramirez, 817 P.2d 774, 780 (Utah

1991) (quoting Long, 721 P.2d at 491–92), abrogated by Lujan, 459 P.3d

at 999.

       To provide due process, we must adjust and incorporate what we

know to best facilitate a system that is fair and seeks justice. We simply

cannot dismiss this expansive body of research. The Iowa Constitution

provides a foundation for society and our interpretation fosters growth

“consistent with the increasing knowledge and understanding of the

world.” Mark S. Cady, A Pioneer’s Constitution: How Iowa’s Constitutional

History Uniquely Shapes Our Pioneering Tradition in Recognizing Civil

       26Obergefell   v. Hodges, 576 U.S. ___, ___, 135 S. Ct. 2584, 2608 (2015).
       27Plessy,   163 U.S. 537.
       28Brown,  347 U.S. 483, 74 S. Ct. 686, supplemented sub nom., 349 U.S. 294, 75
S. Ct. 753 (1955).
       29Dred   Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), superseded by U.S. Const.
amend. XIV.
                                    63

Rights and Civil Liberties, 60 Drake L. Rev. 1133, 1142 (2012). So the

question is, what increased knowledge have we gained?

      This is what we know.       Eyewitness identification evidence is a

leading cause of wrongful convictions, and mistaken identifications

contributed to approximately 71% of the more than 360 wrongful

convictions subsequently overturned by DNA evidence to date in the

United States.    Innocence Project, Eyewitness Identification Reform,

https://www.innocenceproject.org/eyewitness-identification-reform/

[https://perma.cc/J2TA-5BHZ].      As devastating as these numbers are,

they only tell us the number of those wrongfully convicted because DNA

evidence was available to later testing.     For many, there is no DNA

evidence, whether the evidence is not preserved or the sample is not

sufficient enough to test. The statistics only give us a snapshot of the

wrongful convictions that occur in the United States.      There are likely

countless others who remain incarcerated or have faced a term of

incarceration because DNA evidence was not available.

      With all the information available about how sweeping this problem

is and how, as a system, we can address the problem, we choose not to

act. We perpetuate the illusion of due process and protection for those

involved in the criminal justice system, and in doing so, we do nothing to

curb the unacceptably high risk of wrongful convictions. Common sense

is losing out to precedent, and convictions are held in a higher regard than

the pursuit of truth.

      In Doolin, I concluded that under the Iowa Constitution’s due

process clause, the wisest path forward regarding in-court identifications

should a per se exclusion approach. Doolin, ___ N.W.2d at ___. First-time,

in-court identifications would be inadmissible absent a prior identification

made through nonsuggestive procedures.        Id.   In arriving at a per se
                                     64

exclusion approach, I surveyed various states and what they are doing to

combat unreliable eyewitness testimony. There, I discussed Harris, 191

A.3d 119.       Under the Iowa due process clause, for eyewitness

identification, I would adopt a methodology similar to that created under

Harris.

       In Harris, the Supreme Court of Connecticut determined that,

although the defendant’s due process challenge under the Federal

Constitution fell short in light of traditional caselaw, the due process

clause under the Connecticut Constitution required more. 191 A.3d at

123.   While the court in Harris ruled the admission of the eyewitness

identification testimony to be harmless error, the Harris court outlined a

new science-based approach in determining admissibility under their state

due process clause. Id. at 143.

       The Harris court developed a procedural framework to consider

eyewitness identification challenges.       Finding the Biggers factors

“insufficiently protective” of due process rights under their state

constitution, the Harris court adopted a different due process framework.

Id. at 133–43.    Under the new framework, a defendant may obtain a

pretrial hearing where the defendant carries the initial burden of offering

“some evidence that a system variable undermined the reliability of the

eyewitness identification.”   Id. at 143.   The burden then shifts to the

prosecution to show that the identification was reliable, accounting for all

relevant estimator and system variables. Id. If the prosecution meets its

burden, the burden shifts back to the defendant to prove a “very

substantial likelihood of misidentification” in order for the evidence to be

excluded. Id.

       The defendant was entitled to challenge the eyewitness identification

under the Harris framework. Based on the record in this case, I cannot
                                          65

see how the eyewitness identification would have been admitted under

Harris standards. Because the district court failed to utilize the Harris

framework, I would reverse Booth-Harris’s conviction and remand the case

for retrial.

      IV. Ineffective Assistance of Counsel: Use of the ISBA Model
Jury Instruction.

       A. Introduction. The jury was instructed using the ISBA Model

Jury Instruction on eyewitness identification. Booth-Harris argues that

his counsel should have requested jury instructions incorporating well-

established system and estimator variables and that failure to do so

constituted ineffective assistance of counsel. In addressing this claim, I

begin by examining the history of the ISBA Model Jury Instruction 200.45.

       B. History of ISBA Model Jury Instruction 200.45. The current

ISBA instruction regarding eyewitness identification testimony is derived

from United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972) (per curiam).

In Telfaire, the court commented on the “one witness rule” 30 and its role
in Anglo-American jurisprudence. Id. at 554. Telfaire also commented on

the power of the presumption of innocence and the adversarial system with

safeguards to “dilute the danger of conviction of the innocent,” a problem
of concern for “every civilized system of justice.” Id. at 554–55 (“The

presumption of innocence that safeguards the common law system must

be a premise that is realized in instruction and not merely a promise.”).

       In pursuit of that promise, the court recognized the importance for

a special instruction with eyewitness identification emphasizing that

eyewitness identification testimony involves special and heightened

        30The one-witness rule recognizes that some crimes are solitary and allows for a

case to be sent to a jury, and a verdict to be upheld, on the uncorroborated testimony of
a single witness, and the witness need not be a victim. See Strickland v. United States,
332 A.2d 746, 749 (D.C. 1975).
                                      66

problems of reliability. Id. at 555. The purpose of the instruction was to

emphasize to the jury the importance and need to find the identification

convincing beyond a reasonable doubt. Id. For jurors to find that, the

Telfaire court embraced education as a means of achieving this goal. Id.

at 557.

      In Chief Judge Bazelon’s concurrence, he recognized that the

instructions went far in providing illumination to the shortcomings and

pitfalls of eyewitness identification testimony, though he believed the

instructions did not go far enough. Id. at 559 (Bazelon, C.J., concurring).

Specifically, he called attention to the issues that arise in cross-racial

identification, an issue not addressed in the special instructions.       Id.

Utilizing data, Chief Judge Bazelon called attention to the “widely held

commonsense view” that cross-racial identification faces greater difficulty

than same-race identification. Id. He recognized the danger as just “as

relevant to the accuracy” of identification as other factors accounted for in

the model instructions. Id. at 560.

      Judge Leventhal authored a concurrence to address Chief Judge

Bazelon’s concerns regarding cross-racial identification.     Id. at 561–63

(Leventhal, J., concurring). Judge Leventhal expressed concern that the

issue of cross-race identification had not been developed enough to be

addressed in the model instructions. Id. at 561–62 (“The issue of inter-

racial identifications is not ripe for this kind of distillation of wisdom

involving as it does a matter on which there is only ‘meager data’ and an

assertion of ‘common sense’ views that merit further consideration.”). In

Judge Leventhal’s view, the issue was a launching point to be used to

identify a problem and, if needed, could warrant further discussion if it

was an issue in a specific case. Id. at 563.
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      C. Impact of Science on Eyewitness Identification Instruction.

The Telfaire instructions were an “influential set of model jury

instructions” to be used in appropriate cases involving eyewitness

identification testimony. Nat’l Acad. of Scis., Identifying the Culprit at 41.

These instructions added factors for the jury to consider in assessing

eyewitness testimony.    Telfaire, 469 F.2d at 558–59 (majority opinion)

(outlining the model special instruction on identification); Nat’l Acad. of

Scis., Identifying the Culprit at 41–42. Some states adopted the cautionary

instructions, and Iowa was one that did. See Iowa State Bar Ass’n, Iowa

Criminal Jury Instructions 200.45 (2018).

      However, the Telfaire instructions fail to provide guidance on

variables that reduce the reliability of identification procedures and ignore

the issue of estimator and system variables that have since been identified

as important reliability factors. See Kahn-Fogel, Promises & Pitfalls, 104

Ky. L.J. at 118–19. The instructions are still based on what was known in

the 1970s. The instructions provide cautionary statements about some

generalities regarding the witness’s opportunity and capacity to view the

perpetrator and identification procedure. Id. at 119–20; Telfaire, 469 F.2d

at 558–59. Studies have shown the Telfaire instructions were ineffective

safeguards against misidentification. Kahn-Fogel, Promises & Pitfalls, 104

Ky. L.J. at 119.

      There is no doubt that the Telfaire jury instructions are no longer

adequate in light of the scientific developments. Examples of scientifically

based instructions may be found in Henderson, 27 A.3d at 894–912, 925–

26, and Gomes, 22 N.E.3d at 907–17.         There is no one version of an

instruction that must be used in all cases, but I think it is abundantly

clear that a criminal defendant, in cases where eyewitness identification is
                                    68

involved, is entitled to a science-based instruction such as those presented

in Henderson and Gomes.

      D. Ineffective Assistance of Counsel. On appeal, Booth-Harris

asserts that his trial counsel was ineffective for failing to request

instructions   incorporating    well-established   scientific   information

regarding system and estimator variables.      Accordingly, the merits are

analyzed through Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052

(1984).

      The first prong requires an examination of whether trial counsel fell

below a level of competence expected for a similar attorney. The question

is whether a “normally competent attorney could have concluded that the

question . . . was not worth raising.” State v. Fountain, 786 N.W.2d 260,

266 (Iowa 2010) (quoting State v. Schoelerman, 315 N.W.2d 67, 72 (Iowa

1982)). A competent lawyer must stay abreast of legal developments to

render effective assistance of counsel. Id.; see also Doolin, ___ N.W.2d at

___ (citing the Iowa Rules of Professional Conduct and how they require

maintaining competence in changing and evolving fields).

      Based on the above information, the eyewitness identification

evidence controversy has been in the public and legal purview for over forty

years. In Telfaire, Chief Judge Bazelon stated, “The jury’s knowledge of

the relevant factors should not turn on the inadvertence or inexperience

of trial counsel, and this is particularly so where the issue of identity is

the question of guilt or innocence.” Telfaire, 469 F.2d at 560 (Bazelon,

C.J., concurring). The accuracy of eyewitness identification testimony is

routinely overestimated by jurors and the confidence of the identification

often carries great weight with the juror. Perry, 565 U.S. at 263–64, 132

S. Ct. at 738–39. It falls to defense counsel to be well-informed and active

in protecting their client’s due process rights through knowledge of these
                                    69

well-known and established fallacies of eyewitness identification and to

inform the jury on both the best practices and pitfalls of eyewitness

identification. Gomes, Henderson, and Lawson, to name a few cases, have

addressed these issues at great length. Each case was also accompanied

by either a special report or an appendix of scholarly work addressing the

issues in question. Gomes, 22 N.E.3d at 918–27; Henderson, 27 A.3d at

894–912; Lawson, 291 P.3d at 695 & n.10.

      Further, a veritable library on the question of science and eyewitness

identification can be quickly developed by any lawyer through a computer

search of commonly available legal databases. A search of “eyewitness

identification” in the same sentence as “science” produces rich results with

hundreds of hits, reflecting reliable, scholarly secondary literature of

germane materials. Or, a search of “eyewitness identification” in the same

sentence as “instruction” produces, again, hundreds of results, again,

many highly germane. The information regarding eyewitness identification

instructions is not stored in some kind of heavily guarded legal Fort Knox,

or encrypted in some complicated and remote file of the national

intelligence directorate.   It is readily available to any lawyer with a

modicum of curiosity, a mouse, and a few minutes time. There should be

no lawyer practicing criminal law in the State of Iowa without a general

knowledge of recent developments in the law and science of eyewitness

identification. A lawyer without such knowledge has no place in an Iowa

courtroom defending clients facing deprivation of liberty where eyewitness

identifications are an important part of the State’s case.

      The remaining question is whether the failure to give a science-

based instruction in this case caused prejudice. A review of the record

makes it abundantly clear that Watson’s identification was a critical part

of the State’s case. An appropriate eyewitness instruction would have
                                     70

significantly enhanced the ability of the defense to challenge the credibility

of Watson’s identification, assuming it was admissible, and empowered the

jury to more accurately assess the credibility of the identification.

      Because of the weight jurors give eyewitness identification, it is

imperative that the jury be instructed on the vital issues surrounding

eyewitness identification. For example, a science-based instruction would

have told the jury that human memory does not function like a camera;

that a witness’s expressed certainty, standing alone, may not indicate the

accuracy of the identification; and that a prior viewing of a suspect at an

identification procedure may reduce the reliability of any subsequent

identification procedure. See Gomes, 22 N.E.3d at 918–27. Further, a

science-based instruction would have educated the jury about estimator

variables and would have, for example, (a) identified the issue of the

disguise and how disguises affect a witness’s ability to identify a person,

(b) advised that an exposure of short duration limits the power of memory,

(c) identified the distraction of weapons focus as a factor undermining the

accuracy of the identification, (d) brought up the possible effects of

Watson’s intoxication on identification, (e) illuminated the importance of

lack of familiarity with the suspect, (f) explored the role of memory decay

in the accuracy of eyewitness identification, and (g) explained the risks of

misidentification through contaminating suggestion.

      The jury did not receive the information it needed regarding system

and estimator variables so they could properly assess the weight of the

evidence provided. The lack of a science-based eyewitness identification

instruction in this case undermines my confidence in the verdict and is

sufficient to satisfy the prejudice prong of an ineffective-assistance-of-

counsel claim. See Commonwealth v. Pressley, 457 N.E.2d 1119, 1120–
                                    71

21 (Mass. 1983) (reversing conviction based on failure to give adequate

eyewitness identification instruction).

      V. Conclusion.

      The majority opinion “persist[s] in wholesale reliance on an archaic

test based on seemingly logical assumptions that have since been refuted.”

Small v. State, 211 A.3d 236, 256 (Md. 2019) (Barbera, C.J., concurring).

They welcome a change in model jury instructions if the ISBA accepts the

invitation. In the meantime, criminal defendants face conviction by juries

that are woefully ill informed. The New Jersey Supreme Court put a stop

to this kind of process in 2011.          See Henderson, 27 A.3d at 918.

Massachusetts has done so as well. See Gomes, 22 N.E.3d at 917–18. We

should do the same today.

      For all of the above reasons, I would reverse the conviction and

remand the case.
