               IN THE SUPREME COURT OF IOWA
                                No. 17–1715

                            Filed April 24, 2020


STATE OF IOWA,

      Appellee,

vs.

TONY EUGENE DOOLIN,


      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Black Hawk County, Joel A.

Dalrymple, Judge.



      Defendant seeks further review of court of appeals decision declining

relief on claims his trial counsel was ineffective for failing to object to the

victim’s first-time, in-court identification.   DECISION OF COURT OF

APPEALS VACATED IN PART AND AFFIRMED IN PART; DISTRICT

COURT JUDGMENT AFFIRMED.



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

Maria Ruhtenberg, Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Darrel Mullins, Assistant

Attorney General, Brian Williams, County Attorney, and Brad Walz,

Assistant County Attorney, for appellee.
                                        2

WATERMAN, Justice.

      In this appeal, we must decide whether the defendant’s trial counsel

provided ineffective representation by failing to object to the crime victim’s

first-time, in-court identification of the defendant. Responding to a report

of a fight involving an armed man, police arrested the defendant at the

scene minutes later with his handgun. The victim gave a statement hours

later that a man jumped in his car and threatened him at gunpoint before

fleeing when officers arrived. The victim gave no detailed description and

was never asked to identify his assailant that night, or through a photo

array or lineup any time before trial. Two years later, the victim at trial

identified the defendant seated at counsel table.              Defense counsel

vigorously cross-examined the victim regarding his first-time, in-court

identification and during closing urged the jury to disregard his testimony

as unreliable.    The jury returned a guilty verdict on charges of felony

assault, intimidation, and possession of a firearm.

      The defendant appealed, challenging the sufficiency of the evidence

and arguing his trial counsel was ineffective for failing to object to his

first-time, in-court identification and also for failing to request the Iowa

State Bar Association Instruction No. 200.45 on eyewitness identification.

We transferred the case to the court of appeals, which affirmed the

convictions   but    preserved    his       ineffective-assistance   claims   for

postconviction proceedings, concluding the record is inadequate to decide

those claims on direct appeal. We granted the defendant’s application for

further review.

      We find the record is adequate to decide Doolin’s claim that his trial

counsel was ineffective for failing to object to his first-time, in-court

identification, and we reject that claim on the merits.          Our precedent

permits first-time, in-court identifications, and most other courts have
                                      3

rejected due process challenges to first-time, in-court identifications. We

elect to let the court of appeals decision stand on the remaining issues,

and we affirm the district court judgment and sentence.

      I. Background Facts and Proceedings.

      At 1:17 a.m. on August 15, 2015, Waterloo police officers responded

to a report of a disturbance involving a man with a handgun at Flirts

Gentlemen’s Club.        The caller described the offender as an African-

American male wearing a black hat and black bandana.               Officer Ryan

Muhlenbruch arrived first at the scene and observed a man matching that

description heading from Flirts to the adjacent parking lot. The suspect

ducked behind a GMC Yukon, and Officer Muhlenbruch heard the sound

of a heavy metallic object hitting the ground. The suspect was detained

and identified as Tony Doolin. Police found a loaded Glock .40 caliber

handgun underneath the Yukon and a black hat and bandana nearby.

      Doolin admitted he owned the handgun and showed the officers his

permit to carry it. Doolin claimed that a male in a white hooded sweatshirt

had   pulled   a   gun    on   him   so   he   pulled   his   in   self-defense.

Officer Muhlenbruch observed that Doolin smelled like alcohol, slurred his

speech, and had watery bloodshot eyes. Based on his nightly experience

with intoxicated people, Officer Muhlenbruch determined Doolin was

under the influence of alcohol. Doolin refused to perform any field sobriety

test or submit to a preliminary breath test. Doolin was arrested and taken

to the Black Hawk County jail.

      At 2:30 a.m., Officer Ryan Jacobson arrived at Flirts to obtain

security camera video. Dalibor Brkovic approached him to report that a

man had pointed a gun at him in his vehicle earlier that morning. Brkovic

said he drove to Flirts in a BMW x5 with two friends. The group planned

to meet other friends at Flirts, including Zuhdija Menkovic and a part
                                      4

owner in Flirts.     Brkovic was on the phone with Menkovic as he

approached Flirts, and Brkovic asked him to come outside to meet him.

As Menkovic walked outside, he noticed a crowd of people, including a

man with a handgun. Brkovic parked, and his friends exited the vehicle.

Menkovic watched the man holding the handgun run by him and get into

the BMW’s open passenger seat. This man offered Brkovic $100 for a

getaway ride. Brkovic refused. The man pulled a gun, chambered a round,

and stuck the end of the barrel into Brkovic’s chest, telling the driver he

did not have a choice.

       Menkovic stood by the driver’s door and saw his friend held at

gunpoint. Several people gathered near the passenger door and talked to

the assailant, presumably trying to dissuade him from shooting Brkovic,

who had shut off the engine and pretended that he had thrown his keys to

Menkovic. The man turned to Brkovic and said, “Drive.” When told that

Brkovic could not start the BMW without the key, the man called him a

profane name, exited, and started running as police cars reached the

parking lot. Brkovic estimated that the man held the gun to his chest for

about twenty seconds.

       After the man ran off, Brkovic went inside of Flirts for about an hour

before he approached Officer Jacobson to report what happened.           The

police told him that they had arrested an individual in the west parking

lot.   Brkovic then went back into Flirts with his friends.      The police

contacted Brkovic around a half hour later asking him to go to the

Waterloo Police Department to give a statement.        Brkovic had gone to

Perkins for breakfast, ordered, and refused to go to the station to give a

statement until he finished his meal. Brkovic ultimately gave a statement

at the station at around 4:30 a.m., just over three hours after he was held

at gunpoint.
                                      5

      During that interview, Brkovic told the officer that he did not

remember what the man was wearing because he was more focused on the

pistol. Although officers had Doolin in custody at that time, they never

arranged a line up or photo array to see if Brkovic could identify Doolin as

his assailant.     Brkovic left the station without providing much of a

description of the man who had held him at gunpoint.

      On September 29, Doolin was charged with intimidation with a

dangerous weapon in violation of Iowa Code section 708.6 (2015), assault

while participating in a felony in violation of Iowa Code section 708.3, and

carrying weapons in violation of Iowa Code section 724.4.         The case

proceeded to a jury trial on August 22, 2017, two years after the incident.

Brkovic testified, and during his direct examination, he identified Doolin

for the first time as the man who threatened him in his BMW.

             Q. . . . What happened when you pulled into the
      parking spot? A. When I pulled into the parking spot my
      passenger got out of the vehicle. The next thing I know I had
      someone sit in my passenger seat that I had never seen in my
      life before. He asked me for a ride. And I denied. I said I was
      going inside of Flirts.
            Q. I want to back up a little bit. Do you recognize that
      person today? A. I do.
            Q. Can you point out that person or describe what that
      person is wearing? A. Dress shirt (indicating).
               Q. And is that person sitting in front of you? A. Yes,
      he is.
             Q. And do you recognize that person as the person who
      got in the front seat of your BMW on August 15th, 2015? A. I
      do.
            MR. WALZ: Your Honor, may the record reflect that the
      witness has identified the defendant, Tony Doolin?
            THE COURT: To be clear, dress shirt with a jacket or no
      jacket?
               THE WITNESS: No jacket.
               THE COURT: All right. Any objection, counsel?
               MR. HOFFEY: No, Your Honor.
                                     6

Doolin’s trial counsel did not object to Brkovic’s first-time, in-court

identification but cross-examined him.

            Q. At any point over the last two-plus years has any
      law enforcement officer shown you a series of photographs
      asking you to identify the suspect that pointed the gun to your
      chest? A. No.
            Q. Is that a no? A. That is a no.
            Q. You’re telling this jury after two-plus years that
      Mr. Doolin is in fact that man. Is that correct? A. That is
      correct.
           Q. Can you tell this jury why you are so certain of that?
      A. Because I definitely remember his face.
             Q. But you didn’t tell the officer that. Did you? A. Tell
      the officer what?
            Q. Any descriptive characteristics about the suspect’s
      face. A. I was in shock the whole time.
            ....
           Q. And you were still in shock at 4:30 in the morning
      when you were talking to the officer? A. Yes, I was.
            Q. And because you claim you were in shock, you really
      couldn’t give the officer any descriptive characteristics of the
      person that put the gun in your chest. A. That’s correct.

      Defense counsel noted Brkovic had not provided a detailed

description the night of the incident.

            Q. And one final question, sir. In front of this jury you
      pointed to Mr. Doolin and said that he’s the guy; correct?
      A. Yes.
            Q. Would you agree with me, sir, that that is a one-man
      lineup? A. What do you mean one-man lineup?
           Q. You don’t have anyone to compare Mr. Doolin to, do
      you? A. I don’t need anybody to compare it.
            Q. Okay. Is that because Mr. Doolin wouldn’t be here
      unless he was, in fact, the person? Is that what you believe?
      A. No, I believe I remember his face because he had a gun on
      my chest.
             Q. Okay. But you didn’t tell the police that back when
      it happened. Fair enough? A. He didn’t show me a picture.
      I didn’t get to see him then.
           Q. And you didn’t give any specific descriptions, did
      you? A. All I remember is his face and the gun.
                                      7
            Q. Okay. And you didn’t describe his face in any detail,
      did you? A. I just remember his face visually.

      Menkovic also testified at trial but declined to identify Doolin as the
man he saw holding a gun on Brkovic.

             Q. . . . When you saw the guy holding the gun at
      [Brkovic] in the chest area, were you able to get a good look at
      him? A. I mean, I got a good look at the guy when I walked
      out, I got a good look at the guy in the car, so I did get a good
      look at him. If you want me to say that that’s the guy, I can’t
      recollect.
             Q. And that’s what I was going to ask you. From your
      vantage point and your view are you able to specifically
      identify the defendant? A. I -- I can’t say that was the guy.

      Defense counsel asked Menkovic if he could provide any details of

the assailant.

            Q. Any sort of clothing description, physical
      description, anything of that nature? A. Honestly, no. Like I
      said, even that day I didn’t -- I didn’t remember the color of
      the gun. And I saw it as I walked out. Like it was the first
      thing that I saw, you know, and I just -- I couldn’t remember
      the color of it. It’s just not something -- I don’t know.
             Q. Okay. But it’s your testimony before the members
      of this jury that you can’t tell this jury that Tony Doolin was
      the individual holding the gun out in front of Flirts? A. I can’t.
            Q. And you can’t tell the members of this jury that Tony
      Doolin was the man in your friend’s car when he had a gun at
      his chest? A. I can’t.
             Q. And you were right there. A. I was right there. I --
      I just . . . I thought maybe when we came here if I saw the
      person it would put a picture in my head. I just, I can’t.

      Shawn Nolan, a security guard at Flirts, had told the doorman to

call the police after witnessing the fight at the entrance and seeing a man

with a handgun. When he was called to testify, Nolan identified Doolin in

court as the man with the gun.

            Q. And when you described earlier the person with the
      gun, you mentioned -- you said Mr. Doolin. Do you recognize
      that person in the courtroom today? A. Yes.
                                       8
            Q. Can you describe where he’s seated and what he’s
      wearing? A. He is wearing the black and gray shirt with the
      short haircut.
             Q. And is that the person you saw with a gun in front
      of Flirts on the 15th day of August 2015? A. Yes.
             Q. Did you see anyone else with a gun that early
      morning? A. I did not until we watched the video, and there
      was a guy that was standing behind me when I was breaking
      [up] the fight [who] had pulled out a gun that I didn’t see at
      that time.

Later, on cross-examination, Nolan gave more information about the other

individual in the video.

             Q. The other individual you saw with a gun, how would
      you describe him? A. He was a taller black man, I believe he
      was bald, and I remember he was wearing a white sweatshirt,
      but I didn’t see him very often throughout that night.
            Q. When you say a white sweatshirt, is that a white
      hoodie or not a hoodie? A. I believe it was a hoodie.

On redirect, Nolan stated that the person in the hoodie could not be easily

mistaken for Doolin.

      The prosecutor in his closing argument described Brkovic’s
first-time, in-court identification of Doolin as direct evidence.   Defense

counsel countered, “[T]here are major red flags. Major. You know, what

happened was what’s known as a one-man lineup. There’s only one man

sitting here. He’s on trial.” Each argued the weight to be given to the

first-time, in-court identification.

      The jury returned a verdict finding Doolin guilty on all three counts.

On October 3, Doolin filed a motion for a new trial, alleging the verdict was

contrary to the weight of the evidence.      The district court denied the

motion. The district court sentenced Doolin to concurrent, indeterminate

terms of incarceration not to exceed ten years for intimidation with a

dangerous weapon, five years for assault while participating in a felony,

and two years for carrying a weapon.
                                       9

      Doolin filed this direct appeal, which we transferred to the court of

appeals. The court of appeals affirmed Doolin’s conviction, holding that

there was sufficient evidence for the jury to find that Doolin was carrying

a firearm while under the influence of alcohol and the district court did

not abuse its discretion in denying Doolin’s motion for a new trial. The

court of appeals determined the record was inadequate to decide Doolin’s

ineffective-assistance-of-counsel claims and preserved those claims for

postconviction proceedings. Doolin applied for further review, which we

granted.

      II. Standard of Review.

      “On further review, we can review any or all of the issues raised on

appeal . . . .” Cote v. Derby Ins. Agency, Inc., 908 N.W.2d 861, 864 (Iowa

2018) (quoting Papillon v. Jones, 892 N.W.2d 763, 769 (Iowa 2017)). We

choose to limit our review to Doolin’s claim that his trial counsel was

ineffective for failing to object to his first-time, in-court identification. We

let the court of appeals decision stand as the final decision on the

remaining issues. See id.

      Claims of ineffective assistance of counsel are reviewed de novo.

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

      III. Analysis.

      Doolin contends that his trial counsel was ineffective for failing to

object to Brkovic’s first-time, in-court identification as a due process

violation under the Iowa and Federal Constitutions. We begin our analysis

with our rubric for deciding ineffective-assistance-of-counsel claims.

      The claimant must prove that his trial counsel failed to perform an

essential duty and 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
                                           10

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

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

Id. We measure counsel’s performance 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) (“Trial counsel has no duty to raise an

issue that has no merit.”). “We 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). “[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. (quoting Graves, 668

N.W.2d at 881). We have suggested, without deciding, that it could be a

breach of duty to fail to urge a position under the state constitution

supported by decisions of other state supreme courts and academic

literature on an issue pending before the United States Supreme Court on

its grant of certiorari. See State v. Vance, 790 N.W.2d 775, 786–90 (Iowa

2010). As we explain below, this case is unlike Vance because the clear

majority rule and Supreme Court precedent strongly support adhering to

our long-standing caselaw allowing in-court identifications. 1

       The record must be adequate to resolve an ineffective-assistance-of-

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

2016). We find that this record is adequate to decide whether Doolin’s trial

counsel had a duty to object to the victim’s first-time, in-court

        1Indeed, on October 21, 2019, the Supreme Court denied a defendant’s petition

for certiorari that sought review of a rejected due process challenge to a first-time,
in-court identification. Garner v. People, 436 P.3d 1107 (Colo.), cert. denied, 140 S. Ct.
448 (2019).
                                      11

identification because, under established Iowa law and the clear majority

of other jurisdictions, such an objection would have been meritless.

      To establish 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] confidence in the outcome’ of the

trial.” Id. (alteration in original) (quoting Graves, 668 N.W.2d at 882).

      We    must     decide   whether      Doolin’s   trial   counsel       provided

constitutionally deficient representation by failing to object to Brkovic’s

first-time, in-court identification as inadmissible under the Due Process

Clause of the Federal or Iowa Constitution. Doolin relies on several outlier

cases from other states, dissents, and inapposite cases challenging

pretrial, police-engineered suggestive identification procedures. Brkovic’s

identification occurred in the presence of the judge, jury, and counsel.

Defense counsel’s cross-examination and closing argument highlighted

the suggestive nature of the in-court identification. We have never held

identifications during trial are unconstitutionally suggestive, and we

decline to do so now. The weight to be given his testimony is for the jury.

We remain with the majority of courts that reject due process challenges

to first-time, in-court identifications.

      Under    our    long-standing     precedent,    even    when      a    pretrial

identification is tainted by an impermissibly suggestive procedure, “the

same witness may nevertheless identify a defendant at trial if such

identification has an independent origin.” State v. Ash, 244 N.W.2d 812,

814 (Iowa 1976); see also State v. Webb, 516 N.W.2d 824, 829–30 (Iowa

1994); State v. Washington, 257 N.W.2d 890, 894 (Iowa 1977) (en banc);
                                     12

State v. Emery, 230 N.W.2d 521, 524 (Iowa 1975); State v. Canada, 212

N.W.2d 430, 433 (Iowa 1973) (en banc); State v. Masters, 196 N.W.2d 548,

551 (Iowa 1972); State v. Essary, 176 N.W.2d 854, 858 (Iowa 1970).

Brkovic’s in-court identification of Doolin is not tainted by any pretrial

suggestive identification arranged by police, and his identification clearly

has an independent origin—his memory of the face of the man who sat

next to him in his car pointing a gun at his chest. Brkovic’s testimony is

admissible under our precedent. The fact that he did not identify Doolin

before trial or give police a detailed description of his assailant “raises a

question of credibility, not admissibility.” State v. Hinsey, 200 N.W.2d

810, 814 (Iowa 1972).

      These cases preceded the development of much academic research

on the fallibility of eyewitness testimony. See State v. Shorter, 893 N.W.2d

65, 81–82 (Iowa 2017) (surveying authorities); State v. Henderson, 27 A.3d

872, 896–910 (N.J. 2011) (same and mandating use of expanded jury

instruction on eyewitness identifications). See generally Gary L. Wells,

Eyewitness Identification Evidence: Science and Reform, 29 Champion 12

(2005) (outlining the new body of literature regarding mistaken eyewitness

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

Eyewitness Confidence and Identification Accuracy: A New Synthesis, 18

Psychol. Sci. Pub. Int. 10 (2017) (describing how over thirty years of

research can inform eyewitness-identification accuracy and giving

recommendations for implementing pristine testing conditions to improve

the criminal justice system). Doolin asks us to revisit our precedent in

light of this research.

      In State v. Folkerts, we stated, “The seating of a defendant next to

his or her counsel at the deposition of an eyewitness is so clearly

suggestive as to be impermissible.” 703 N.W.2d 761, 765 (Iowa 2005). We
                                            13

noted that “[a]ny identification of the defendant made at the deposition is

a pretrial out-of-court identification because neither the judge nor the jury

is present when the parties take the deposition.” Id. With two justices

dissenting, we held the defendant could stay out of the room while the

deponent was questioned about his ability to describe the assailant. 2 Id.

at 765–66. Doolin urges us to extend Folkerts to the trial setting. We

decline to do so. A deposition is not the same as a trial.

       Folkerts preceded Perry v. New Hampshire, which held the

safeguards generally available in criminal trials defeat due process

objections to the admissibility of eyewitness identifications untainted by

suggestive, police-arranged procedures. 565 U.S. 228, 232–33 132 S. Ct.

716, 720–21 (2012). In Perry, officers responded to a report that a man

was breaking into cars in a parking lot. Id. at 233, 132 S. Ct. at 721. As

officers interviewed a witness in an apartment overlooking the parking lot,

she pointed out her kitchen window to Barion Perry and identified him as

the perpetrator while he stood next to a police officer. Id. at 233–34, 132

S. Ct. at 721–22.        Perry moved to suppress her identification on due

process grounds, arguing she “witnessed what amounted to a one-person

showup in the parking lot, . . . which all but guaranteed that she would

identify him as the culprit.” Id. at 234–35, 132 S. Ct. at 722.




       2The   Folkerts majority relied on United States v. Brown, 699 F.2d 585, 594 (2d
Cir. 1983). 703 N.W.2d at 765. The appellate court in Brown stated that upon a proper
objection to a proposed first-time, in-court identification, the trial judge “would have been
better advised to direct the government to provide a line-up” before the trial testimony.
699 F.2d at 594. The appellate court acknowledged “[a] defendant does not have a
constitutional right to a line-up” and determined the failure to require a lineup was not
an abuse of discretion nor was the first-time, in-court identification impermissibly
suggestive. Id. at 593–94. Brown was not entitled to a retrial on those grounds. Id. at
594.
                                          14

       The Supreme Court, Justice Ginsburg writing for an eight-Justice

majority, 3 held that “the Due Process Clause does not require a

preliminary judicial inquiry into the reliability of an eyewitness

identification    when     that    identification     was    not    procured     under

unnecessarily suggestive circumstances arranged by law enforcement.”

Id. at 248, 132 S. Ct. at 730. Justice Sotomayor was the lone dissenter.

Id. at 249, 132 S. Ct. at 730 (Sotomayor, dissenting). Doolin relies on this

dissent.      The Perry majority acknowledged that “[m]ost eyewitness

identifications involve some element of suggestion. Indeed, all in-court

identifications do.” Id. at 244, 132 S. Ct. at 727 (majority opinion). Yet

the Court determined that “[t]he fallibility of eyewitness evidence does not,

without the taint of improper state conduct, warrant a due process rule

requiring a trial court to screen such evidence for reliability before allowing

the jury to assess its creditworthiness.” Id. at 245, 132 S. Ct. at 728. In

declining to “enlarge the domain of due process,” the Court emphasized

that “the jury, not the judge, traditionally determines the reliability of

evidence.” Id. The Court explained the Due Process Clause was employed

to deter police misconduct, not supplant traditional trial safeguards.

              We have not extended pretrial screening for reliability to
       cases in which the suggestive circumstances were not
       arranged by law enforcement officers. . . . Our decisions . . .
       aim to deter police from rigging identification procedures, for
       example, at a lineup, showup, or photograph array. When no
       improper law enforcement activity is involved, we hold, it
       suffices to test reliability through the rights and opportunities
       generally designed for that purpose, notably, . . . vigorous
       cross-examination, protective rules of evidence, and jury
       instructions on both the fallibility of eyewitness identification

       3The  Perry Court had the benefit of amici curiae that outlined the social science
research. See, e.g., Brief for Amicus Curiae Am. Psychological Ass’n in Support of
Petitioner, Perry v. New Hampshire, 565 U.S. 228 (2012) (No. 10-8974); Brief of the
Criminal Justice Legal Found. in Support of Respondent, Perry, 565 U.S. 228, 2011 WL
4479078.
                                           15
       and the requirement that guilt be proved beyond a reasonable
       doubt.

Id. at 232–33, 132 S. Ct. at 720–21. 4

       The Perry Court detailed how Perry’s counsel used “the safeguards

generally applicable in criminal trials,” quoting from her opening

statement, cross-examination, and closing argument that highlighted the

unreliability of the witness’s identification. Id. at 247–48, 132 S. Ct. at

729–30. Given those trial safeguards, the Court held “the introduction of

[the eyewitness’s] testimony, without a preliminary judicial assessment of

its reliability, did not render Perry’s trial fundamentally unfair.” Id. at 248,

132 S. Ct. at 730.

       We reach the same conclusion here, for the same reasons. We find

Perry persuasive and elect to follow it in applying the due process clause

of the Iowa Constitution to first-time, in-court eyewitness identifications.5


       4The   Perry Court included among the “protective rules of evidence” Federal Rule
of Evidence 403, which allows the exclusion of eyewitness identifications on grounds that
the resulting unfair prejudice substantially outweighs the probative value. Perry, 565
U.S. at 233, 248, 132 S. Ct. at 721, 729. Iowa Rule of Evidence 5.403 is identical to the
Federal Rule. Compare Fed. R. Evid. 403, with Iowa R. Evid. 5.403. Other courts have
noted that this rule of evidence can be used to exclude unreliable first-time, in-court
identifications. See State v. Hickman, 330 P.3d 551, 568 (Or. 2014) (en banc), modified
on reconsideration, 343 P.3d 634 (Or. 2015) (en banc) (per curiam). In our view, the
availability of Iowa Rule of Evidence 5.403 is another reason we need not constitutionalize
evidentiary challenges to first-time, in-court identifications. See Good v. Iowa Dep’t of
Human Servs., 924 N.W.2d 853, 863 (Iowa 2019) (noting we continue to adhere to the
“time-honored doctrine of constitutional avoidance,” which “instructs us that we should
‘steer clear of “constitutional shoals” when possible’ ” (quoting Nguyen v. State, 878
N.W.2d 744, 751 (Iowa 2016))). Doolin’s trial counsel did not object to Brkovic’s
identification under Iowa rule 5.403, nor does his appellate counsel cite or rely on that
evidentiary rule.
       5Doolin   does not argue Perry is inconsistent with our earlier due process analysis
in State v. Cox, 781 N.W.2d 757, 769 (Iowa 2010) (holding “Iowa Code section 701.11
violates the due process clause of the Iowa Constitution as applied in this case because
it permits admission of prior bad acts against an individual other than the victim in this
case to demonstrate general propensity”). In our view, the Cox due process analysis for
the admissibility of prior sex offenses is inapposite to the admissibility of eyewitness
identifications.
                                          16

Perry asserted the identification amounted to a “one-person showup,” id.

at 234–35, 132 S. Ct. at 722, and Doolin similarly argued that Brkovic’s

first-time, in-court identification amounted to a “one-man lineup.” As we

quoted above, Doolin’s trial counsel used his cross-examination 6 and

closing argument to argue this point and to highlight the suggestive nature

of Brkovic’s first-time, in-court identification.          The weight of Brkovic’s

testimony was for the jury, and his testimony, untainted by any improper

pretrial police procedure, was admissible without the trial court

conducting a preliminary assessment of its reliability. See id. at 248, 132

S. Ct. at 730.

       The reliability of eyewitness identification can be affected by a

number of variables, including lighting, length of time to observe, hats or

other items obscuring appearance, stress, weapon focus, witness

confidence levels, cross-racial identification, the bystander effect, and

cowitness contamination. In our view, these variables are “grist for the

jury mill.” Manson v. Brathwaite, 432 U.S. 98, 116, 97 S. Ct. 2243, 2254

(1977).     “Juries are not so susceptible that they cannot measure

intelligently the weight of identification testimony that has some

questionable feature.” Id.

       Doolin’s appellate counsel does not contend trial counsel was

ineffective for failing to offer a defense expert to educate the jury on the

fallibility of eyewitness testimony.         Other courts have recognized that

expert testimony may be an appropriate method to address concerns

regarding the reliability of eyewitness identifications. See Commonwealth

v. Walker, 92 A.3d 766, 782–84 (Pa. 2014) (collecting cases). The weight


       6Cross-examination   has been recognized as “the ‘greatest legal engine ever
invented for the discovery of truth.’ ” California v. Green, 399 U.S. 149, 158, 90 S. Ct.
1930, 1935 (1970) (quoting 5 J. Wigmore Evidence § 1367 (3d ed. 1940)).
                                      17

to be given expert testimony is for the jury. Crow v. Simpson, 871 N.W.2d

98, 107 (Iowa 2015).

      Most courts adjudicating due process claims after Perry allow first-

time, in-court identifications. See United States v. Thomas, 849 F.3d 906,

910 (10th Cir. 2017) (“Perry applies not only to pretrial identifications but

also to in-court identifications.”); Lee v. Foster, 750 F.3d 687, 691 (7th Cir.

2014) (determining that a first-time, in-court identification was not

impermissibly suggestive); United States v. Hughes, 562 F. App’x 393, 398

(6th Cir. 2014) (“[T]he Supreme Court has recently made clear that due

process rights of defendants identified in the courtroom under suggestive

circumstances are generally met through the ordinary protections in

trial.”); United States v. Whatley, 719 F.3d 1206, 1216 (11th Cir. 2013)

(“Perry makes clear that, for those defendants who are identified under

suggestive circumstances not arranged by police, the requirements of due

process are satisfied in the ordinary protections of trial. . . . Due process

imposes no requirement of a preliminary examination for an in-court

identification.”); Garner v. People, 436 P.3d 1107, 1120 (Colo. 2019)

(en banc) (“[W]e cannot, consistent with Perry, conclude that in-court

identifications alleged to be suggestive simply because of the ordinary trial

setting must be screened rather than subjected to cross-examination and

argument before the jury.”); Jeter v. Commonwealth, 531 S.W.3d 488, 495

(Ky. 2017) (rejecting a due process challenge to a first-time, in-court

identification because “[a]bsent the ‘taint of improper state action,’ Perry

establishes that the jury and the ordinary rules of trial provided [the

defendant] with all the process due him for contesting [the witness’s]

testimony”); People v. Palmer, No. 345188, 2019 WL 6340936, at *4 (Mich.

Ct. App. Nov. 26, 2019) (per curiam) (relying on Perry and holding that the

trial court properly allowed the witness’s first-time, in-court identification
                                     18

because “there was no evidence of improper law enforcement activity or

state action related to [the witness’s] identification of [the] defendant”);

State v. Ramirez, 409 P.3d 902, 913 (N.M. 2017) (allowing an in-court

identification because Perry clarified that due process concerns regarding

eyewitness identifications target improper police conduct while the trial

setting, including the opportunity for cross-examination, provides

sufficient protection); State v. Berry, No. 18AP-9, 2019 WL 4727585, at *6

(Ohio Ct. App. Sept. 26, 2019) (relying on Perry to hold that “[b]ecause [the

witness’s first-time,] in-court identification was subject to cross-

examination and other trial protections and because there are no

allegations of any impermissibly suggestive pre-trial identification

procedures, [the defendant] fails to show that [the witness’s first-time,] in-

court identification of him as the shooter violated his due process rights”);

State v. Hickman, 330 P.3d 551, 572 (Or. 2014) (en banc) (relying on Perry

and the lack of any improper state action to hold that an in-court

identification did not violate defendant’s due process rights), modified on

reconsideration, 343 P.3d 634 (Or. 2015) (en banc) (per curiam).

        The Colorado Supreme Court’s 2019 decision in Garner is

instructive.   In that case, a fight broke out between a group of three

brothers and another group including James Garner. Garner, 436 P.3d at

1108.    Shots were fired, injuring the three brothers.     Id.   Garner was

charged as the gunman.       Id.   During the pretrial investigation, police

showed each brother a photo array that included Garner; none identified

Garner as the shooter, and only one brother identified Garner as present

at the scene of the shooting. Id. Yet during the trial three years later, all

three brothers identified Garner as the shooter.      Id. at 1108–09.    One

brother stated the shooter’s face was something he would never forget,
                                      19

another was “a hundred percent sure that it was [Garner,]” and the third

brother was positive that Garner was the gunman. Id.

      Garner’s    trial   counsel   objected   to   each   first-time,   in-court

identification of Garner as the shooter, but the trial court overruled her

objections. Id. Throughout the trial, in her opening statement, and during

closing, Garner’s counsel challenged the reliability of the brothers’

testimony. Id. at 1109–10. Defense counsel vigorously cross-examined

each brother regarding his failure to identify Garner as the shooter in the

pretrial photo array. Id. at 1109. In her closing, she argued, “They can’t

identify James Garner at . . . all [before trial], but when he’s sitting in this

chair, the one with the arrow over it, that’s when they can say they’re

sure.” Id. The jury convicted Garner of first-degree assault on one brother,

second-degree assault on another, and attempted reckless manslaughter

of two of the brothers. Id.

      On appeal, Garner challenged the first-time, in-court identifications

as a violation of his right to due process under the Federal and Colorado

Constitutions. Id. The court of appeals affirmed his convictions, and the

state supreme court granted certiorari. Id. at 1110. Garner argued the

in-court identifications were the product of impermissibly suggestive

circumstances under the multifactor test for challenging pretrial police-

engineered identifications set forth by the United States Supreme Court in

Neil v. Biggers, 409 U.S. 188, 199–200, 93 S. Ct. 375, 382 (1972). Id. at

1110. The Colorado Supreme Court disagreed and relying on Perry, held,

      [W]here an in-court identification is not preceded by an
      impermissibly suggestive pretrial identification procedure
      arranged by law enforcement, and where nothing beyond the
      inherent suggestiveness of the ordinary courtroom setting
      made the in-court identification itself constitutionally
      suspect, due process does not require the trial court to assess
      the identification for reliability under Biggers.
                                          20

Id. at 1120. We agree. Doolin relies on the dissenting opinion, which

would have required judicial screening to likely exclude the brothers’

in-court identifications. See id. at 1125 (Hart, J., dissenting). As noted,

the United States Supreme Court, without dissent, denied Garner’s

petition for certiorari. Garner, 436 P.3d 1107 (Colo.), cert. denied, 140

S. Ct. 448 (2019).       The parties and amici for Garner had thoroughly

reviewed the medical and social science on the fallibility of eyewitness

identifications in 121 pages of briefing. 7

       Other courts have held that a first-time, in-court eyewitness

identification is admissible without relying on Perry. In Ralston v. State,

the Georgia Supreme Court held a preliminary assessment of the

identification is unnecessary given the safeguards available at trial.

       The “totality of the circumstances” test for reliability of Neil v.
       Biggers applies to extra-judicial pretrial identification
       procedures such as lineups, showups and photographic
       displays, not to the in-court procedures used in this case.
       Because pretrial identification procedures occur beyond the
       immediate supervision of the court, the likelihood of
       misidentification in such cases increases, and courts have
       required that pretrial identification procedures comport with
       certain minimum constitutional requirements in order to
       insure fairness. These extra safeguards are not, however,
       applicable to Robin Gentle’s in-court identification of
       appellants in this case. Rather, her testimony is subject to
       the same rules of evidence, witness credibility, and cross-
       examination as all testimony in a criminal trial.

309 S.E.2d 135, 136–37 (Ga. 1983) (citation omitted); see also Byrd v.

State, 25 A.3d 761, 767 (Del. 2011) (en banc) (rejecting challenge to first-

time, in-court identification and holding that the inherent suggestiveness

of a trial setting “does not rise to the level of constitutional concern” and


       7See Brief of Scholars of Law, Psychology, Neuroscience, and Other Fields as

Amicus Curiae in Support of Petitioner, Garner v. Colorado, 140 S. Ct. 448 (2019)
(No. 19-75), 2019 WL 3854682; Brief of the Nat’l Ass’n of Criminal Def. Lawyers as Amici
Curiae in Support of Petitioner, Garner, 140 S. Ct. 448, 2019 WL 3933781.
                                           21

that “the remedy for any alleged suggestiveness of an in-court

identification is cross-examination and argument”); Jeter v. State, 888

N.E.2d 1257, 1266 (Ind. 2008) (rejecting defendant’s challenge to a

witness’s first-time, in-court identification two and a half years after the

crime and finding the identification was not unduly suggestive and “was a

matter of weight and credibility for the jury to consider”); Galloway v.

State, 122 So. 3d 614, 664 (Miss. 2013) (en banc) (“The trial itself affords

the    defendant      adequate      protection      from     the    general     inherent

suggestiveness present at any trial. The defendant receives the full benefit

of a trial by jury, presided over by an impartial judge, with representation

by counsel, and witnesses subject to oath and cross-examination.”); State

v. King, 934 A.2d 556, 560–61 (N.H. 2007) (declining to require a

prescreening and stating “[t]he inherent suggestiveness in the normal trial

procedure employed here does not rise to the level of constitutional

concern”); People v. Morales, 109 N.Y.S.3d 650, 651 (App. Div. 2019) (“In

cases where . . . the defendant is identified in court for the first time, ‘the

defendant is not deprived of a fair trial because the defense counsel is able

to explore weaknesses and suggestiveness of the identification in front of

the jury.’ ” (quoting People v. Medina, 617 N.Y.S.2d 491, 492–93 (App. Div.

1994))); 8 State v. Ramirez, Nos. 16CA95, 16CA96, 2017 WL 7689959, at

       8Doolin relies on an older case from New York’s highest court regarding showups,

People v. Adams, 423 N.E.2d 379 (N.Y. 1981), as applying a per se rule of exclusion for
unnecessarily suggestive identification procedures. In People v. Marte, the same court
held that “no similar per se rule applies to an identification in which the police are not
involved.” 912 N.E.2d 37, 38 (N.Y. 2009). In an opinion that aligns with the not-yet-
decided Perry, the Marte court stated,
                 Ordinarily, where the need to regulate police conduct does not
        justify an exclusionary rule, our system relies on juries to assess the
        reliability of eyewitnesses, aided by cross-examination, by the arguments
        of counsel, and by whatever other evidence supports or contradicts the
        witnesses’ testimony.
Id. at 41.
                                     22

*6–7 (Ohio Ct. App. Feb. 14, 2017) (rejecting defendant’s argument that

first-time, in-court identifications are inherently suggestive and unreliable

and declining to follow the new Connecticut precedent requiring

prescreening); Commonwealth v. Janqdhari, No. 2762EDA2018, 2019 WL

7290508 (Pa. Super. Ct. Dec. 30, 2019) (rejecting defendant’s invitation to

adopt restrictions on first-time, in-court identifications in new Connecticut

and Massachusetts precedent and reiterating that “[t]he fact that [the

witness] could not identify [the defendant] earlier is relevant only to the

weight and credibility of [his or her] testimony” (quoting Commonwealth v.

Zabala, 449 A.2d 583, 587 (Pa. Super. Ct. 1982))); State v. Lewis, 609

S.E.2d 515, 518 (S.C. 2005) (“We conclude, as the majority of courts have,

that Neil v. Biggers does not apply to in-court identifications and that the

remedy for any alleged suggestiveness of an in-court identification is cross-

examination and argument.”).

      Doolin urges us to disregard the well-established majority rule and

instead follow the Connecticut Supreme Court’s decision in State v.

Dickson, which held that “first time in-court identifications, like in-court

identifications that are tainted by an unduly suggestive out-of-court

identification, implicate due process protections and must be prescreened

by the trial court.” 141 A.3d 810, 824 (Conn. 2016). The Dickson court

stated,

      [W]e are hard-pressed to imagine how there could be a more
      suggestive identification procedure than placing a witness on
      the stand in open court, confronting the witness with the
      person who the state has accused of committing the crime,
      and then asking the witness if he can identify the person who
      committed the crime. If this procedure is not suggestive, then
      no procedure is suggestive.

Id. at 822–23 (footnote omitted). The Dickson court created a multistep

process that took five pages to describe and now governs how Connecticut
                                        23

courts must prescreen first-time, in-court identifications. Id. at 835–40.

While acknowledging “a number of courts have concluded otherwise,” id.

at 827 & n.14, the Dickson court concluded “that this is an issue for which

the arc of logic trumps the weight of authority,” id. at 827.

       Three justices disagreed, with two citing Perry to conclude that first-

time, in-court identifications

       pass[ed] constitutional scrutiny . . . as long as the defendant
       is afforded the traditional protections of our adversary system,
       such as confrontation, the attendant right to cross-examine
       state witnesses, closing argument, jury instructions, the
       presumption of innocence, and the government’s burden to
       prove guilt beyond a reasonable doubt.”

Id. at 845 (Zarella, J., concurring in the judgment); see also id. at 865

(Robinson, J., concurring) (concluding the majority’s constitutional

analysis was unnecessary given the court’s determination that the

admission of the eyewitness testimony was harmless error).

       In Commonwealth v. Crayton, the Supreme Judicial Court of

Massachusetts overturned its precedent and held first-time, in-court

identifications are admissible “only where there is ‘good reason’ ” such as

the victim already knew the defendant. 21 N.E.3d 157, 169 (Mass. 2014).

The Crayton court adopted the new rule under its common law authority

without deciding whether the state constitution’s due process clause

required that result. Id. at 169 n.16.

       We view Crayton and Dickson as outliers, and the Dickson screening

criteria for judges as unduly complex and restrictive. Many Iowa criminal

jury   trials   involve   first-time,   in-court   eyewitness   identifications.

Excluding such testimony would effectively deny justice to some victims.

       Doolin also relies on State v. Dubose, which involved a challenge to

an out-of-court showup procedure.            699 N.W.2d 582 (Wis. 2005),

overruled by State v. Roberson, 935 N.W.2d 813, 816 (Wis. 2019). There,
                                     24

relying on social science research, the Wisconsin Supreme Court

overruled its long-standing precedent to adopt a new test for the

admissibility of showup identifications it found “inherently suggestive”

and, therefore, inadmissible “unless, based on the totality of the

circumstances, the procedure was necessary.” Id. at 594. A first-time,

in-court identification differs from a showup. In any event, the Wisconsin

Supreme Court has recently overruled Dubose. See State v. Roberson,

935 N.W.2d 813, 816 (Wis. 2019).

      The Roberson court soundly rejected Dubose and critiqued its

departure from at least twenty-six years of precedent and its reliance on

social science research.    The Roberson court recognized that “social

science research cannot be used to define the meaning of a constitutional

provision,” elaborating,

             As Justice Scalia explained, the judiciary is not in a
      good position to judge social values or social science. When
      social science is disputed, the institutional parameters of the
      judiciary are amplified. It is the legislature that is structured
      to assess the merits of competing policies and ever-changing
      social science assertions.
             It is no surprise that, with mounds of research
      available, the State in the dispute now before us has identified
      social science that supports its position. E.g., John Wixted &
      Gary Wells, The Relationship Between Eyewitness Confidence
      and Identification Accuracy: A New Synthesis, 18 Psychol. Sci.
      in the Pub. Int. 10 (2017).
             Furthermore, categorical rules of exclusion, based on
      social science, are the antithesis of justice because “one of the
      major tenets in the administration of justice” is “the
      presentation of reliable, relevant evidence at trial.”

Id. at 820–21 (quoting Dubose, 699 N.W.2d at 607 (Roggensack, J.,

dissenting)).

      The Roberson court further observed that “[a] state court does not

have the power to write into its state constitution additional protection

that is not supported by its text or historical meaning.” Id. at 824. The
                                     25

Roberson court noted Dubose “crafted a rule of constitutional law, largely

based on social science reports that it found persuasive” and “created the

capacity to prevent identifications of perpetrators of crimes when under

the totality of the circumstances surrounding the identifications, they were

reliable.” Id. at 825. Wisconsin law provides no support for Doolin today.

      We elect to adhere to our precedent and remain with the majority

rule allowing first-time, in-court identifications. That rule reflects “the

profound respect that our system of justice holds for the role of juries in

the adjudicative process.” Hickman, 330 P.3d at 564. “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 will do better.” Lawrence

Rosenthal, Eyewitness Identification and the Problematics of Blackstonian

Reform of the Criminal Law, 110 J. Crim. L. & Criminology 181, 243 (2020).

We determine that Doolin’s trial counsel did not provide constitutionally

deficient representation for failing to object to Brkovic’s trial testimony.

Such an objection would have been meritless.

      IV. Disposition.

      For these reasons, we vacate the court of appeals decision on

Doolin’s due process claim for his first-time, in-court identification, affirm

the court of appeals decision on the remaining issues, and affirm the

district court judgment and sentence.

      DECISION OF COURT OF APPEALS VACATED IN PART AND

AFFIRMED IN PART; DISTRICT COURT JUDGMENT AFFIRMED.

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

McDonald, J., who takes no part.
                                       26

                                                   #17–1715, State v. Doolin

APPEL, Justice (dissenting).

        “[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) (Brennan, J., dissenting) (quoting Elizabeth F. Loftus,

Eyewitness Testimony 19 (1979) (emphasis added)).         Yet, retrospective

study    of   wrongful   convictions   uncovered   through   DNA   analysis

demonstrates that erroneous identifications are the leading cause of

wrongful conviction. This presents the law with a profound problem that

challenges the very integrity of our criminal justice system: the most

convincing testimony is often highly unreliable.

        Why is such convincing eyewitness testimony so often wrong? Any

court system concerned about fundamental fairness in criminal justice

should want to explore the issue thoroughly, understand the science

behind eyewitness identification in depth, and fashion its doctrine to

mitigate the risks of the gross injustice that arises from wrongful

convictions.

        Among other things, the science of eyewitness identification reveals

the following: that eyewitness identification is at best a questionable

enterprise, that the ability to identify an assailant threatening a person

with a handgun is dramatically impaired, that memory dramatically

declines two hours after an incident, that memory never improves over

time, and that one person showups are inherently highly suggestive and

unreliable.

        None of this science is canvassed in the majority opinion.     It is

simply ignored in favor of fawning admiration for the demonstrably flawed

cases of the United States Supreme Court and rejection of a body of law
                                       27

developing in state courts that incorporates eyewitness science into its

constitutional jurisprudence.

      Because the approach of the majority unnecessarily increases the

risks of wrongful convictions, does not address what we know about the

science of eyewitness testimony, is inconsistent with extant Iowa caselaw

on due process, and allows convictions based on eyewitness identifications

that science tells us are likely to be substantially unreliable, I respectfully

dissent.

      I. Introduction.

      My analysis begins with a review of the science of eyewitness

identification. In short: it is extremely troubling. Cumulatively, the now

very large body of research demonstrates major problems associated with

eyewitness identification.     No conscientious court can consider due

process questions arising from eyewitness identification without a

thorough knowledge and grasp of this now very large body of work.

      Next, I review the cases of the United States Supreme Court.

Alarmingly, the United States Supreme Court cases are far out of sync

with developing science on eyewitnesses and are not persuasive for a court

that wants its doctrine to match objective reality. Specifically, I note that

the traditional framework established in Neil v. Biggers, 409 U.S. 188, 93

S. Ct. 375 (1972), is fundamentally flawed. I then review how the decision

in Perry v. New Hampshire, 565 U.S. 228, 132 S. Ct. 716 (2012), is

analytically unsound and inconsistent with current eyewitness science.

Both of these wobbly precedents should not be followed under article I,

section 8 of the Iowa Constitution.

      Next, I turn to cases in a number of jurisdictions that forthrightly

incorporate   eyewitness     science   into   their   caselaw.   These   cases

demonstrate that if the science is applied within a due process framework,
                                      28

in-court eyewitness identifications, particularly those obtained by

showup-type identifications that occur after the passage of time, are prime

candidates for exclusion as inadmissible evidence.

      Finally, I consider the particular issues raised in this case. First, I

discuss whether it was ineffective assistance for counsel to fail to seek

exclusion of Brkovic’s identification through a one person, in-court

showup two years after the fact. I also discuss whether Doolin received

ineffective assistance of counsel when his lawyer failed to seek suppression

of the in-court identification and failed to seek an instruction on the use

of eyewitness identification.

      II. The Historical Evolution of the Science of Eyewitness
Identification.

      A. Introduction.          Recent cases reviewing the due process

framework for evaluation of the reliability and subsequent admissibility of

eyewitness testimony that was developed in the late 1960s and 1970s fall

into two distinct camps. One body of caselaw canvasses the contours of

several decades of eyewitness science. 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). Without

fail, each state court that has engaged in a review of eyewitness science in

the past two decades or so has come to the conclusion that the prior due

process framework is inconsistent with consensus science and must be

revised.
                                       29

      On the other hand, a number of the courts that have been asked to

consider   changes    in   the   due   process   framework   for   eyewitness

identification developed fifty years ago by the United States Supreme Court

precedents have decided to simply stand pat. In most of those cases, these

courts simply declined to examine the consensus eyewitness science. See,

e.g., Small v. State, 211 A.3d 236, 250–55 (Md. 2019); State v. Washington,

189 A.3d 43, 55–58 (R.I. 2018); State v. Doap Deng Chuol, 849 N.W.2d 255,

261–62 (S.D. 2014).

      The later path of failing to consider three decades of development in

eyewitness science is unacceptable. The law cannot allow historic seat-of-

the-pants judgments later proven to be misleading or inaccurate to remain

immutable when consensus science shows those judgments to be so

problematic that criminal convictions become unreliable.

       As Justice Sutherland noted long ago, the criminal justice system

has two goals: convicting the guilty and protecting the innocent. Berger v.

United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633 (1935). A claim that

social science demonstrates that the law is no longer advancing these twin

goals must be taken seriously.         While differing judgments about the

implications of science are not only expected but even desirable in a federal

legal system, what is not acceptable is willful blindness to the

developments of science. When reputable scientists declare that “there

are more convictions than there are accurate identifications” it is time to

sit up and pay attention. Brian L. Cutler & Steven D. Penrod, Mistaken

Identification: The Eyewitness, Psychology and the Law 186 (1995)

[hereinafter Cutler & Penrod, Mistaken ID] (citing Gary L. Wells et al.,

Accuracy, Confidence, and Juror Perceptions in Eyewitness Identification,

64 J. Applied Psychol. 440, 440–48 (1979)). Plainly, a review of the science

is a prerequisite for any meaningful evaluation of a challenge to the fifty-
                                     30

year-old traditional due process framework for the evaluation of

eyewitness testimony.

      B. Historical Commentary on Eyewitness Testimony.                  The

notion that an eyewitness identification may be unreliable is not new. As

one skeptical judge noted more than 150 years ago, “I would sooner trust

the smallest slip of paper for truth, than the strongest and most retentive

memory ever bestowed on mortal man.” Miller v. Cotten, 5 Ga. 341, 349

(1848). Many years later, then Professor Felix Frankfurter, in his classic

volume on the trial of Sacco and Vanzetti, exclaimed,

      What is the worth of identification testimony even when
      uncontradicted? The identification of strangers is proverbially
      untrustworthy.     The hazards of such testimony are
      established by a formidable number of instances in the
      records of English and American trials. These instances are
      recent—not due to the brutalities of ancient criminal
      procedure.

United States v. Wade, 388 U.S. 218, 228, 87 S. Ct. 1926, 1933 (1967)

(quoting Felix Frankfurter, The Case of Sacco and Vanzetti 30 (1927)).

      In the 20th century, there was a smattering of scholarly efforts to

establish an empirical basis for occasional judicial and scholarly

observations about the unreliability of eyewitness identifications. In 1908,
Harvard psychologist Hugo Münsterberg published On the Witness Stand.

In this volume, Münsterberg presented empirical evidence that eyewitness

testimony was often inaccurate. Hugo Münsterberg, On the Witness Stand:

Essays on Psychology and Crime (1908). In 1932, Edwin M. Borchard

documented sixty-five cases of miscarriage of justice in Convicting the

Innocent: Sixty Five Actual Errors of Criminal Justice. Edwin M. Borchard,

Convicting the Innocent: Sixty Five Actual Errors of Criminal Justice (1932),

in Convicting the Innocent and State Indemnity for Errors of Criminal Justice

44 (Justice Inst. 2013). Borchard concluded that the convictions were
                                      31

based on misidentification by eyewitnesses in forty-four of the sixty-five

cases. Id. at 283.

      If eyewitness testimony is notoriously unreliable, and much more

unreliable than an ordinary juror likely believes, what is to be done? Is

there a good way we can separate acceptably reliable identifications from

unacceptably    unreliable    identifications,   present   to   the   jury   only

identifications that are reasonably reliable, and suppress identifications

that are simply too tainted to justify the risk of error? Neither Münsterberg

nor Borchard offered compelling answers to these important questions.

      C. Explosion in the Science of Eyewitness Testimony in Recent

Decades.       Aside   from    Münsterberg       and   Borchard,      eyewitness

identification did not receive much scholarly consideration until the late

1960s and early 1970s. Beginning about this time, researchers developed

a rapidly accelerating and expanding body of science related to eyewitness

identification. Iowa State University Professor Gary Wells has published

numerous articles and studies on the topic and has emerged as one of the

few nationally recognized scholars challenging the manner in which the

law treats eyewitness identifications.      See, e.g., Gary L. Wells et al.,

Accuracy, Confidence, and Juror Perceptions in Eyewitness Identification,

64 J. Applied Psychol. 440 (1979) [hereinafter Wells, Juror Perceptions];

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

and Estimator Variables, 36 J. Personality & Soc. Psychol. 1546 (1978)

[hereinafter Wells, Variables]; Gary L. Wells et al., Effects of Expert

Psychological Advice on Human Performance in Judging the Validity of

Eyewitness Testimony, 4 Law & Hum. Behav. 275 (1980); Gary L. Wells

et al., Eyewitness Identification Procedures: Recommendations for Lineups

and Photospreads, 22 Law & Hum. Behav. 603 (1998) [hereinafter Wells,

Lineups and Photospreads]; Gary L. Wells, Eyewitness Identification:
                                           32

Systemic Reforms, 2006 Wis. L. Rev. 615; Gary L. Wells et al., Guidelines

for Empirically Assessing the Fairness of a Lineup, 3 Law & Hum. Behav.

285 (1979); 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 (2009)

[hereinafter Wells & Quinlivan, Suggestive Procedures]. Over time, these

studies have identified a number of factors that increase the risk of

inaccurate eyewitness identification. Although there is always room for

additional research on the margins, there is now a scholarly consensus on

a number of core concepts that must be recognized in any court that takes

the question of reliability of its verdicts seriously. 9




       9Courts   have extensively used the results of scientific research in the context of
eyewitness testimony. See, e.g., Young, 374 P.3d 395, 417–26 (exploring scientific
eyewitness identification research); Guilbert, 49 A.3d at 734–40 (evaluating eyewitness
identification); Henderson, 27 A.3d at 889–914 (canvassing scientific eyewitness-
testimony research extensively); Lawson, 291 P.3d 673, 685–88 (applying eyewitness
identification science within the framework of the courts); see also United States v.
Bartlett, 567 F.3d 901, 906 (7th Cir. 2009) (applying the science of confidence-accuracy
relationship and memory decay); United States v. Brownlee, 454 F.3d 131, 142–44 (3d
Cir. 2006) (citing the “inherent unreliability” of eyewitness identifications and accuracy-
confidence relationship); United States v. Smith, 621 F. Supp. 2d 1207, 1215–17 (M.D.
Ala. 2009) (surveying cross-racial identifications, impact of high stress, and feedback);
State v. Chapple, 660 P.2d 1208, 1220–22 (Ariz. 1983) (en banc) (applying available
science on memory decay, stress, feedback, and confidence-accuracy); People v.
McDonald, 690 P.2d 709, 719–27 (Cal. 1984) (en banc) (exploring discretion of trial court
regarding admission of expert testimony on reliability of eyewitness testimony), overruled
on other grounds by People v. Mendoza, 4 P.3d 265, 277–78 (Cal. 2000); Benn v. United
States, 978 A.2d 1257, 1273–1284 (D.C. 2009) (reviewing system and estimator
identification variables in a court context); Brodes, 614 S.E.2d at 770 (citing studies
regarding witness confidence and certainty); People v. LeGrand, 867 N.E.2d 374, 378–79
(N.Y. 2007) (reviewing confidence-accuracy relationship, feedback, and confidence
malleability); State v. Copeland, 226 S.W.3d 287, 299–300, 302 (Tenn. 2007) (finding trial
court erred by not admitting expert testimony on reliability of eyewitness identification);
State v. Clopten, 223 P.3d 1103, 1108–11 (Utah 2009) (citing research and multiple
systems and estimator variables); State v. Dubose, 699 N.W.2d 582, 591–93 (Wis. 2005)
(canvassing scientific literature), overruled by State v. Roberson, 935 N.W.2d 813, 816
(Wis. 2019).
                                        33
     III. Measuring the Dimension of the Problem of Eyewitness
Misidentification.

      A. Estimates Developed Through Social Science Research.
Among other things, the scholarly work has raised a threshold question:

how serious is the problem of eyewitness identification? It seems obvious

that the greater the frequency of errors in identification, the more pressure

there is on the legal system to develop a sensible method of addressing the

problem.

      The results of the eyewitness research over the past three decades

or so can only be characterized as quite disturbing. For example, a meta-

analysis   [combined    analysis   of    multiple   studies]   of   ninety-four

experiments revealed that after nonsuggestive lineups, 46% of witnesses

choose the perpetrator correctly, 33% decline to choose, and 21% choose

someone who was innocent. Samantha L. Oden, Note, Limiting First-Time

In-Court Eyewitness Identifications: An Analysis of State v. Dickson, 36

Quinnipiac L. Rev. 327, 334 (2018). In another meta-analysis, research

considered eyewitness responses where the perpetrator was not part of the

lineup and found roughly half of witnesses picked someone who was an

innocent filler. Id.

      In one illustrative study, convenience store clerks were exposed to

bizarre behavior by “customers.” Noah Clements, Flipping a Coin: A

Solution for Inherent Unreliability of Eyewitness Identification Testimony,

40 Ind. L. Rev. 271, 272–73 (2007) [hereinafter Clements]. Two hours

later, only 34.2% of the clerks were able to identify the customer in a

nonsuggestive photo array. Id. Twenty-four hours later, the identification

percentage declined to 7.8%. In this study, the initial rate of identification

was fairly low and deteriorated rapidly. Id.
                                       34

      There are literally dozens and dozens of studies that consistently

show a high rate of error in eyewitness identifications even under favorable

conditions. As summarized by the American Psychological Association

(APA) in an amicus brief filed in Perry, studies have “consistently found

that the rate of incorrect identifications is roughly 33 percent.” See Brief

for Amicus Curiae Am. Psychological Ass’n in Support of Petitioner at 3,

Perry, 565 U.S. 228, 132 S. Ct. 716 (No. 10-8974), 2011 WL 3488994 at

*3 [hereinafter APA Amicus]. The rate of incorrect identification in live

lineups show similarly unreliability.       See, e.g., Bruce W. Behrman &

Sherrie L. Davey, Eyewitness Identification in Actual Criminal Cases: An

Archival Analysis, 25 Law & Hum. Behav. 475, 480–82 (2001) (concluding

a 24% error rate in fifty-eight live lineups studied); Tim Valentine et al.,

Characteristics of Eyewitness Identification that Predict the Outcome of Real

Lineups, 17 Applied Cognitive Psychol. 969, 974 (2003) (finding between

19%-22% error rate in live lineups); Daniel B. Wright & Anne T. McDaid,

Comparing System and Estimator Variables Using Data from Real Line-Ups,

10   Applied    Cognitive   Psychol.    75,   77   (1996)     (finding   19.9%

misidentification in live lineups).

      With results like these, eyewitness identification is sometimes

referred to as a “coin flip” rather than an objective process. See Clements,

40 Ind. L. Rev. at 271. The unreliability of eyewitness identifications is

not a concept found exclusively in the rarified atmosphere of the academe.

As noted by the IACP National Law Enforcement Policy Center, “Of all

investigative procedure employed by police in a criminal case, probably

none is less reliable than the eyewitness identification.” IACP Nat’l Enf’t

Policy Ctr., Eyewitness Identification 5 (rev. Sept. 2010).

      Authoritarians inclined to defend convictions regardless of guilt or

innocence may not be disturbed by the undisputed science on the theory
                                        35

that a crime victim deserves a conviction of the best available suspect. But

anyone who believes that reliability should be an important part of the

criminal justice process and isn’t concerned by these persistent

inaccuracies is unthinking, or unconscious.

      B. Confirmation         of    Scope    of   Problem       of   Eyewitness

Misidentification in Retrospective DNA Studies.                 The problematic

nature of eyewitness identifications has been confirmed in recent years by

retrospective study of cases involving DNA exonerations. In these cases,

it is virtually certain that the individuals convicted of the crimes were, in

fact, innocent. In a recent retrospective study of DNA exonerations, the

author concluded that 76% of all convictions shown to be wrongful by DNA

evidence were based on inaccurate eyewitness identifications. Brandon L.

Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong 48

(2011). Another retrospective of exonerations found that faulty eyewitness

identification exceeds all other causes as the reason for wrongful

conviction. Samuel R. Gross et al., Exonerations in the United States 1989

Through 2003, 95 J. Crim. L. & Criminology 523, 542, 544 (2003)

[hereinafter Gross] (finding “the most common cause of wrongful

convictions      is   eyewitness   misidentification,”   with   misidentification

accounting for 50% and 88% of wrongful convictions for murder and rape,

respectively).

      One of the most prominent DNA exoneration cases illustrates the

nature of the problem. In the case of Ron Cotton, the victim identified him

as her rapist in a photo array, claiming to have studied “every single detail

on the rapist’s face” at the time of the assault. Clements, 40 Ind. L. Rev.

at 275–76. Later DNA evidence demonstrated that Cotton was not the

culprit, and the real perpetrator was identified. Id. at 276. When shown

the real culprit, the victim declared, “I have never seen him in my life.” Id.
                                    36

See generally William J. Morgan, Jr., Justice in Foresight: The Past

Problems with Eyewitness Identification and Exoneration by DNA

Technology, 3 S. Region Black Students Ass’n L.J. 60 (2009) (listing a

number of cases where highly certain eyewitness testimony was proven

incorrect by DNA technology).

      DNA exonerations, of course, usually involve cases of sexual assault.

Gross, 95 J. Crim. L. & Criminology at 530–31. In most robbery cases,

DNA evidence has not been available.      Id.   There is reason to believe,

however, that there is a greater risk of eyewitness misidentification in

robberies than other crimes because robberies are often committed by

strangers to the victim and the robber is usually within the victim’s

physical proximity for a short period of time. Id.

      C. Summary. The first step in addressing a problem is recognizing

its existence. With respect to eyewitness identification, there can be no

doubt that the problem of misidentification by well-meaning witnesses

poses an urgent problem for a legal system which is designed with the twin

goals of convicting the guilty and protecting the innocent.

     IV. Identification and Importance of Key Variables that
Contribute to Unreliable Eyewitness Identifications in One Person
Showups.

      A. Introduction. The massive scientific literature on eyewitness

identification has sought to develop an understanding of the general

principles of human memory and to identify key variables that contribute

to misidentification. Although there are many potential lines for additional

fruitful scientific inquiry, a number of key variables have clearly emerged

from the decades of professional inquiry. For many years, the literature

generally divides the variables into two categories: estimator variables and
                                     37

system variables. See Wells, Variables, 36 J. Personality & Soc. Psychol.

at 1548.

      No attempt is made here to catalogue all relevant variables, but a

nonexhaustive review provides the context for considering the proper legal

framework for evaluating the reliability of eyewitness identifications.

Further, much of the descriptions provided below may be found in the rich

eyewitness caselaw and was relied upon in the development of the

summary below. See, e.g., Young, 374 P.3d at 417–26; Henderson, 27 A.3d

at 894–909; Lawson, 291 P.3d at 706–11.

      B. General Principles of Human Memory.

      1. Human memory is not like the retrieval of photographic images.

Many believe that eyewitness identification is like retrieving a photo from

an album, except that the photo album is your memory. But the science

on eyewitness identification consistently demonstrates that this is not the

case. Rather than the common perception that memory works like a video

recorder, the science around eyewitness identification shows us that

memory is impacted by a wide range of estimator and systems variables at

the perception, retention, and retrieval stages of identification.        See

Elizabeth F. Loftus et al., Eyewitness Testimony: Civil and Criminal § 2-2,

at 14 (5th ed. 2013) [hereinafter Loftus et al., Civil and Criminal].

      2. Human memory decays quickly and never improves over time.

When it comes to eyewitness identifications, human memory declines

rapidly over time. The rate of memory loss for an unfamiliar face is greatest

right after the encounter and then tends to level off. See id. §3-2[a], at 51–

54; Brian L. Cutler, A Sample of Witness, Crime, and Perpetrator

Characteristics Affecting Eyewitness Identification Accuracy, 4 Cardozo

Pub. L., Pol’y & Ethics J. 327, 336 (2006) [hereinafter Cutler, ID

Characteristics]; Kenneth A. Deffenbacher et al., Forgetting the Once-Seen
                                       38

Face: Estimating the Strength of an Eyewitness’s Memory Representation,

14 J. Experimental Psychol.: Applied 139, 147–48 (2008).

      C. Estimator Variables.

      1. Illumination at time of exposure affects human memory. “Dark

lighting conditions” has been described as one of the “classic variables”

that reduces the accuracy of eyewitness identification. Sandra Guerra

Thompson, Beyond a Reasonable Doubt? Reconstructing Uncorroborated

Eyewitness Identification Testimony, 41 U.C. Davis L. Rev. 1487, 1493

(2005); see also Loftus et al., Civil and Criminal §2-4, at 17–19; Marloes de

Jong et al., Familiar Face Recognition as a Function of Distance and

Illumination: A Practical Tool for Use in the Courtroom, 11 Psychol., Crime

& L. 87, 87 (2005) [hereinafter de Jong et al., Familiar Face Recognition].

The degree of illumination at the time of an encounter is a factor that

impacts human memory. The darker the environment, the less reliable an

eyewitness identification.    de Jong et al., Familiar Face Recognition, 11

Psychol., Crime & L. at 95 (finding that while facial recognition at 30 lux

is generally reliable, facial recognition at the same distance between 3–10

lux is questionable).

      2. Time of exposure.       Time of exposure may also affect human

memory.     All other things being equal, the longer the exposure and

opportunity to study an image, the greater the likelihood of an accurate

identification. See Brian H. Bornstein et al., Effects of Exposure Time and

Cognitive Operations on Facial Identification Accuracy: A Meta-Analysis of

Two Variables Associated with Initial Memory Strength, 18 Psychol., Crime

& L. 473, 486 (2012) (finding that short exposure time negatively impacts

eyewitness memory).          Conversely, the shorter the exposure, any

identification is likely to be less reliable. Id. at 482.
                                         39

       It is noteworthy, however, that victims experiencing arousal and

stress are likely to overestimate the length of time of the event. See Loftus

et al., Civil and Criminal §2-5, at 20; Sven-Äke Christianson & Elizabeth

F. Loftus, Memory for Traumatic Events, 1 Applied Cognitive Psychol. 225,

236 (1987); Elizabeth F. Loftus et al., Time Went by So Slowly:

Overestimation of Event Duration by Males and Females, 1 Applied

Cognitive Psychol. 1, 4–5 (1987). The scientific literature paints a clear

picture of time-exposure overestimation of those reporting stressful

events.

       3. Hats or other obstacles to vision as an accurate identification

inhibitor.   The science demonstrates that eyewitness identification is

complicated when full vision of the face is impaired.            For instance,

researchers in a 1987 study determined that wearing a hat inhibits

accurate eyewitness identification, dropping identification accuracy from

50% to about 25%. Margaret A. Hagan & Sou Hee Yang, How Can So Many

Be Wrong? Making the Due Process Case for an Eyewitness Expert 9 (2019).

This   decrease    in   identification    accuracy   occurred    without     any

corresponding decrease in witness confidence in the identification. Id. A

later review of six studies with more than 1300 witnesses showed again

that identification accuracy was significantly reduced when perpetrators

wore hats that masked hair and hairline.             Id.; see also Cutler, ID

Characteristics, 4 Cardozo Pub. L., Pol’y & Ethics J. at 332; Brian L. Cutler

et al., The Reliability of Eyewitness Identification: The Role of System and

Estimator Variables, 11 Law & Hum. Behav. 233, 240 (1987).

       4. Stress as an accurate identification inhibitor.       It is commonly

thought by lay persons that in a highly stressful situation, the face of a

perpetrator can be “burned into” a witness memory. This manifests itself

at trial with declarations like “I’ll never forget the face” of the attacker. The
                                     40

eyewitness science, however, is flatly to the contrary. As demonstrated by

the research, even where no stress is present, eyewitness identification is

often inaccurate. With stress, however, the studies consistently show that

the accuracy of eyewitness identification is not enhanced, but declines.

See Loftus et al., Civil and Criminal §2-9, at 28–32; Kenneth A.

Deffenbacher et al., A Meta-Analytic Review of the Effects of High Stress on

Eyewitness Memory, 28 Law & Hum. Behav. 687, 694 (2004); Charles A.

Morgan III et al., Accuracy of Eyewitness Memory for Persons Encountered

During Exposure to Highly Intense Stress, 27 Int’l J.L. & Psychiatry 265,

274 (2004).

      5. Weapon focus as an accurate identification inhibitor.     Another

commonly held view is that if the perpetrator has a weapon, concentration

sharpens and the likelihood that the victim will be able to make an

accurate identification increases.    Again, the research comes to an

opposite conclusion. Commonly described as weapon focus, the fact that

a perpetrator brandishes a weapon tends to decrease the accuracy of

eyewitness identification as the victim focuses not on the face of the

perpetrator or other identifying characteristics, but on the weapon.

See Loftus et al., Civil and Criminal §2-10, at 32–35; Nancy M. Steblay, A

Meta-Analytic Review of the Weapon Focus Effect, 16 Law & Hum. Behav.

413, 414 (1992) [hereinafter Steblay, Weapon Focus]; Gary Wells et al.,

Eyewitness Evidence: Improving Its Probative Value, 7 Psychol. Sci. Pub.

Int. 45, 53 (2006).

      6. Expressions of witness confidence.     The lack of a connection

between accuracy of identification and confidence expressed by an

eyewitness is “one of the most consistent findings in memory research

literature.”   Kevin Krug, The Relationship Between Confidence and

Accuracy: Current Thoughts of the Literature and a New Area of Research,
                                     41

3 Applied Psychol. Crim. Just. 7, 31 (2007). According to Gary Wells and

his colleagues, a witness’s “self-rated and overtly expressed confidence is

largely irrelevant in determining the criminal-identification accuracy of an

eyewitness.”   Wells, Juror Perceptions, 64 J. Applied Psychol. at 447.

According to Wells, expression of confidence is reliable only under pristine,

nonsuggestive conditions.      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); see also Loftus

et al., Civil and Criminal §3-12, at 68–72; Neil Brewer & Gary L. Wells, The

Confidence–Accuracy Relationship in Eyewitness Identification: Effects of

Lineup Instructions, Foil Similarity, and Target-Absent Base Rates, 12 J.

Experimental Psychol.: Applied 11, 11 (2006) (indicating spontaneous

confidence at the time of identification not subject to suggestion may be

meaningful but the same is probably not true for statements made in

court); Steven M. Smith et al., Postdictors of Eyewitness Errors: Can False

Identifications Be Diagnosed?, 85 J. Applied Psychol. 542, 548 (2000).

      7. Cross-racial identification. In an important article, Sheri Lynn

Johnson asserted that cross-racial identification is subject to a higher rate

of error. Participants were 1.56 times more likely to falsely identify a novel

other-race face when compared with performance on own-race faces.

Sheri Lynn Johnson, Cross-Racial Identification Errors in Criminal Cases,

69 Cornell L. Rev. 934, 935–36 (1984).       Subsequent research confirms

Johnson’s approach. For example, in a 2001 meta-analysis that spanned

thirty-nine research articles and nearly five thousand participants,

researchers determined that cross-racial identifications are 56% more

likely to be erroneous than same-race identification.      See Christian A.

Meissner & John C. Brigham, Thirty Years of Investigating the Own-Race
                                     42

Bias in Memory for Faces: A Meta-Analytic Review, 7 Psychol., Pub. Pol’y,

& L. 3, 15, 21 (2001).

      The effects of misidentification dovetail with the growing body of

social science finding the effects of implicit bias in color or skin tone, and

in Afrocentric facial features in sentencing and presumed guilt, among

other insidious effects. See generally Mark W. Bennett, The Implicit Racial

Bias in Sentencing: The Next Frontier, 126 Yale L.J.F. 391 (2017); Irene V.

Blair et al., The Automaticity of Race and Afrocentric Facial Features in

Social Judgments, 87 J. Personality & Soc. Psychol. 763 (2004); Irene V.

Blair et al., The Influence of Afrocentric Facial Features in Criminal

Sentencing, 15 Psychol. Sci. 674 (2004); Traci Burch, Skin Color and the

Criminal Justice System: Beyond Black-White Disparities in Sentencing, 12

J. Empirical Legal Stud. 395 (2015); Travis L. Dixon & Keith B. Maddox,

Skin Tone, Crime News, and Social Reality Judgments: Priming the

Stereotype of the Dark and Dangerous Black Criminal, 35 J. Applied Soc.

Psychol. 1555 (2005); Jennifer L. Eberhardt et al., Looking Deathworthy:

Perceived Stereotypicality of Black Defendants Predicts Capital-Sentencing

Outcomes, 17 Psychol. Sci. 383 (2006); Jennifer L. Eberhardt et al., Seeing

Black: Race, Crime, and Visual Processing, 87 J. Personality & Soc.

Psychol. 876 (2004); Ryan D. King & Brian D. Johnson, A Punishing Look:

Skin Tone and Afrocentric Features in the Halls of Justice, 122 Am. J. Soc.

90 (2016); William T. Pizzi et al., Discrimination in Sentencing on the Basis

of Afrocentric Features, 10 Mich. J. Race & L. 327 (2005); Jaclyn Ronquillo

et al., The Effects of Skin Tone on Race-Related Amygdala Activity: An fMRI

Investigation, 2 Soc. Cognitive Affective & Neuroscience 39 (2007).

      8. Bystander effect. Research has demonstrated that a witness that

is vaguely familiar with another may innocently but wrongly identify the

person as the perpetrator of crime. See J.D. Read et al., The Unconscious
                                    43

Transference Effect: Are Innocent Bystanders Ever Misidentified?, 4 Applied

Cognitive Psychol. 3, 26 (1990); David F. Ross et al., Unconscious

Transference and Mistaken Identity: When a Witness Misidentifies a

Familiar but Innocent Person, 79 J. Applied Psychol. 918, 918 (1994).

      9. Cowitness contamination.      Discussions with cowitnesses can

contaminate memories and lead to misidentification of perpetrators. Elim

M. Skagerberg, Co-Witness Feedback in Line-Ups, 21 Applied Cognitive

Psychol. 489, 495 (2007) (“[T]he present findings show that in cases

involving multiple witnesses, positive feedback about the identification

and choice of suspect from a co-witness could lead to higher levels of

certainty as compared to negative feedback. . . . [M]ean[ing] that a witness

could be more willing to testify in court and could be more certain about

the correctness of the identification simply due to confirming feedback

from a naïve co-witness and vice versa.”).

      D. System Variables.

      1. Blind administration.      When an identification process is

conducted, the research demonstrates that lineup administrators familiar

with the suspect may leak that information “by consciously or

unconsciously communicating to witnesses which lineup member is

suspect.” Sarah M. Greathouse & Margaret Bull Kovera, Instruction Bias

and Lineup Presentation Moderate the Effects of Administrator Knowledge

on Eyewitness Identification, 33 Law & Hum. Behav. 70, 71 (2009); see

also Steven E. Clark et al., Lineup Administrator Influences on Eyewitness

Identification Decisions, 15 J. Experimental Psychol.: Applied 63, 67–73

(2009); Ryann M. Haw & Ronald P. Fisher, Effects of Administrator–Witness

Contact on Eyewitness Identification Accuracy, 89 Applied Psychol. 1106,

1107 (2004).     The scholarship is in agreement: failure to conduct
                                       44

administratively     blind   lineups    increases      the   likelihood   of   a

misidentification.

      2. Preidentification    instructions.      The     science   consistently

demonstrates that telling a witness in advance that a suspect may or may

not be in a lineup enhances the reliability of an eyewitness identification.

See Stephen E. Clark, A Re-examination of the Effects of Biased Lineup

Instructions in Eyewitness Identification, 29 Law & Hum. Behav. 395, 396

(2005); Nancy M. Steblay, Social Influence in Eyewitness Recall: A Meta-

Analytic Review of Lineup Instruction Effects, 21 Law & Hum. Behav. 283,

285–86, 294 (1997).

      3. Lineup construction. Much has been written about the need to

properly construct lineups or photo arrays.         It is important that the

suspect not stand out from the other fillers presented to the witness. See

David F. Ross et al., When Accurate and Inaccurate Eyewitnesses Look the

Same: A Limitation of the ‘Pop-Out’ Effect and the 10- to 12-Second Rule, 21

Applied Cognitive Psychol. 677, 687 (2007); Gary L. Wells & Amy Bradford,

Measuring the Goodness of Lineups: Parameter Estimation, Question

Effects, and Limits to the Mock Witness Paradigm, 13 Applied Cognitive

Psychol. S27, S30 (1999).

      4. Feedback. The research shows that where a witness receives

positive feedback, the confidence level in the identification is artificially

increased.    Further, confirmatory feedback can lead witnesses to

“significantly inflate their reports to suggest better witnessing conditions

at the time of the crime, stronger memory at the time of the lineup, and

sharper memory abilities in general.” Amy Bradfield Douglass & Nancy

Steblay, Memory Distortion in Eyewitnesses: A Meta-Analysis of the Post-

Identification Feedback Effect, 20 Applied Cognitive Psychol. 859, 864–65

(2006); see also Jeffrey S. Neuschatz et al., The Effects of Post-Identification
                                       45

Feedback and Age on Retrospective Eyewitness Memory, 19 Applied

Cognitive Psychol. 435, 449 (2005); Gary L. Wells & Amy L. Bradford,

“Good, You Identified the Suspect”: Feedback to Eyewitnesses Distorts Their

Reports of the Witnessing Experience, 83 J. Applied Psychol. 360, 374

(1998) [hereinafter Wells, Good ID].

      5. Multiple viewing. The scientific literature finds multiple viewings

of a suspect problematic.      The problem has been called “mugshot

exposure.”   To illustrate, one meta-analysis found that while 15% of

eyewitnesses misidentified a suspect in a lineup, that figure increased to

37% if the witness had seen the innocent person in a prior mugshot.

Kenneth A. Deffenbacher et al., Mugshot Exposure Effects: Retroactive

Interference, Mugshot Commitment, Source Confusion, and Unconscious

Transference, 30 Law & Hum. Behav. 287, 299 (2006).

      6. Showups. Showups occur when a witness is given a photo of one

person, or if a single person is presented to the witness for identification

purposes.    A showup, of course, is highly suggestive in that only one

person is presented for identification and the witness may be confident

that the person presented has not been selected at random. Showups,

however, can be useful if a suspect is apprehended in close temporal

proximity to the crime.

      Yet, a showup is necessarily highly suggestive and cannot be blindly

administered. Research shows that the ability of a witness to accurately

identify a suspect decreases rapidly within two hours of the event. A.

Daniel Yarmey et al., Accuracy of Eyewitness Identifications in Showups

and Lineups, 20 Law & Hum. Behav. 459, 464 (1996) [hereinafter Yarmey,

Lineup Accuracy]. According to the study, “after [two hours], a one-person

lineup was four times as likely to lead to a false identification of the

innocent suspect than if that same suspect was in a six-person lineup.”
                                       46

Id. at 465.   Research shows that when an innocent suspect closely

resembled a perpetrator, 23% identified the innocent person in a showup

compared to 17% in a lineup. Nancy Steblay et al., Eyewitness Accuracy

Rates in Police Showup and Lineup Presentations: A Meta-Analytic

Comparison, 27 Law & Hum. Behav. 523, 533 (2003) [hereinafter Steblay,

Police Presentations].

       E. Compound Risk of Misidentification When Multiple Factors

Are Present. The risk of misidentification is compounded when multiple

factors that impair accurate identification are present. It is tempting to

regard some of the above factors as some kind of arithmetic checklist. This

would be a mistake. First, in a given case, any one of the above factors

may be so overwhelming as to run an unacceptable risk of error. For

example, a highly suggestive photo array where the defendant is obviously

different from fillers cannot be cured by an eyewitness instruction and a

double-blind administration of the process. Also, however, the various

factors that affect eyewitness accuracy often interact to compound the risk

of mistaken identification. See Kathy Pezdeck, Content, Form, and Ethical

Issues   Concerning      Expert   Psychological   Testimony   on   Eyewitness

Identification, in Expert Testimony on the Psychology of Eyewitness

Identification 36-37 (Brian L. Cutler ed., 2009).       When confidence is

inflated, eyewitnesses tend to report that conditions of viewing the crime

were better than they were and that they were more confident in their

memory and their answers. Wells, Good ID, at 374. The negative effect of

weapon focus on identification accuracy may be magnified when combined

with stress, short exposure time, poor visibility conditions, or longer

retention intervals. Steblay, Weapon Focus, 16 Law & Hum. Behav. at

417.
                                     47

      F. Impact of Contamination on Later Identifications. We are all

familiar with the proverbial question, “[H]ow can you unring the bell?”

Wells and Quinlivan explain that following a misidentification, the witness’

original memory is overwritten by the memory of the misidentified suspect,

making later identifications tainted by the earlier error. Wells & Quinlivan,

Suggestive Procedures, 33 Law & Hum. Behav. at 8–9. Research tends to

indicate that witnesses who have taken part in suggestive procedures are

more likely to implicate an innocent subject in a later nonsuggestive

lineup. See generally Dan Simon, In Doubt: The Psychology of the Criminal

Justice Process (2012); Bruce W. Behrman & Lance T. Vayder, The Biasing

Influence of a Police Showup: Does the Observation of a Single Suspect Taint

Later Identification?, 79 Perceptual & Motor Skills 1239 (1994).

      G. Impact of Unreliable Eyewitness Identification on Jurors.

Jurors tend to put great faith in eyewitness identifications. As noted by

three leading eyewitness experts, jurors tend to have a “nearly religious

faith in the accuracy of eyewitness accounts.”      Loftus et al., Civil and

Criminal § 12-1 at 274. Two other experts have noted “jurors appear to

regard eyewitness evidence as one of the most persuasive type of evidence

that can be presented.” John C. Brigham & Robert K. Bothwell, The Ability

of Prospective Jurors to Estimate the Accuracy of Eyewitness Identification,

7 Law & Hum. Behav. 19, 19 (1983). The experimental results are telling.

In one illustrative study, mock jurors were presented with the same

evidence except one set of jurors were told that there were no eyewitnesses,

while the remainder were told that there was an eyewitness who identified

the defendant. The second set of jurors were told that the eyewitness was

legally blind and was not wearing prescribed glasses when the incident

occurred. Among the first set of mock jurors, only 18% convicted the

defendant, while among the second set, 68% returned a conviction. See
                                     48

Cindy J. O’Hagen, When Seeing Is Not Believing: The Case for Eyewitness

Expert Testimony, 81 Geo. L.J. 741, 745 (1993).

      In another experiment, mock jurors evaluated the accuracy of forty-

two witnesses. Some of the witnesses made an accurate identification,

while others did not.    Some witnesses were examined using leading

questions, while other witnesses were examined with nonleading

questions.   Where the witnesses were cross-examined with leading

questions, only 27% of the mock juror were able to identify inaccurate

eyewitnesses, while only 14% were able to identify inaccurate eyewitnesses

after nonleading examination. The study suggests that even with effective

cross-examination, jurors may believe three out of four mistaken

identifications. George Vallas, A Survey of Federal and State Standards for

the Admission of Expert Testimony on the Reliability of Eyewitnesses, 39

Am J. Crim. L. 97, 108–110 (2011).

      Further, mounting evidence indicates that jurors continue to

disregard variables that detract from eyewitness accuracy. See Tanja

Rapus Benton et al., Eyewitness Memory Is Still Not Common Sense:

Comparing Jurors, Judges and Law Enforcement to Eyewitness Experts, 20

Applied Cognitive Psychol. 115, 119–20 (2006). Jurors tend to evaluate

eyewitnesses based upon three criteria: witness confidence, consistency of

testimony, and memory of specific details. None of these criteria relate

with identification accuracy. See Cutler & Penrod, Mistaken ID at 181–90,

200–03 (1995) (describing results of several studies regarding factors

contributing to accuracy of identifications); see also Jennifer L. Devenport

et al., Eyewitness Identification Evidence: Evaluating Commonsense

Evaluations, 3 Psychol., Pub. Pol’y, & L. 338, 340–42 (1997); Henry F.

Fradella, Why Judges Should Admit Expert Testimony on the Unreliability

of Eyewitness Testimony, 2 Fed. Cts. L. Rev. 1, 28 (2006) (“The scientific
                                     49

research on memory, generally, and eyewitness identification in particular

‘are quite counterintuitive and hardly commonsensical.’ ”); Wells, Juror

Perceptions, 64 J. Applied Psychol. at 446;       Richard A. Wise et al., A

Tripartite Solution to Eyewitness Error, 97 J. Crim. L. & Criminology 807,

812 (2007) (“[S]cientific research has revealed that eyewitness memory is

much more malleable and susceptible to error than is generally realized.”).

      The   effectiveness   of   cross-examination    as    a   safeguard   is

questionable in light of the lack of juror sensitivity to factors that are

known to be diagnostic of eyewitness reliability.          Cutler & Penrod,

Mistaken ID, at 197–209. Indeed, the history of the development of cross-

examination shows that it was designed to detect perjury, or liars, who

might no longer be affected by the oath required to give testimony. See

Jules Epstein, The Great Engine that Couldn’t: Science, Mistaken

Identifications, and the Limits of Cross-Examination, 36 Stetson L. Rev.

727, 765–70 (2007) (tracing development of cross-examination to declining

power of oath and risk of perjury). Certainly the ability to cross-examine

had little impact in the DNA exoneration cases, where there is no reason

to believe that any of the victims did not honestly believe they had

accurately identified their attackers.

      As noted by Gary Wells and his colleagues, “Cross-examination, a

marvelous tool for helping jurors discriminate between witnesses who are

intentionally deceptive and those who are truthful, is largely useless for

detecting who are trying to be truthful but are genuinely mistaken.” Wells,

Lineups and Photospreads, 22 Law & Hum. Behav. at 609 (citation

omitted). More colorfully, Elizabeth Loftus and her colleagues note that

cross-examination of a sincere eyewitness is “akin to trying to land a very

large energetic fish on a very light line.” Loftus et al., Civil and Criminal,

§ 12-1[b], at 276. They caution that the likelihood that “the lawyer will not
                                    50

be able to obliterate the eyewitness during cross-examination” does not

“mean that the eyewitness cannot obliterate the lawyer.” Id. § 12-8, at

284.   They characterize cross-examination of a sincere eyewitness as

generating thrills per moment equivalent to “walking through a mine field.”

Id. The mine field analogy is apt, as any lawyer who has attempted to

cross-examine a sincere but mistaken witness can attest.

       H. The Severe Problem of Aggravated Suggestiveness:            One

Person Showups. As noted more than fifty years ago by the United States

Supreme Court, “[i]t is hard to imagine a situation more clearly conveying

the suggestion to the witness that the one presented is believed guilty by

the police” than a one person showup. Wade, 388 U.S. at 234, 87 S. Ct.

at 1936; see also Richard Gonzales et al., Response Biases in Lineups and

Showups, 64 J. Personality & Soc. Psychol. 525, 525 (1993); Gary Wells,

Police Lineups: Data, Theory, and Policy, 7 Psychol., Pub. Pol’y, & L. 791,

795 (2001). In a meta-analysis, researchers have found that one person

showups produce twice as many false identifications as fair lineups.

Steblay, Police Presentations, 27 Law & Hum. Behav. at 530.

       Research has further shown that the time disparity between the

event and the identification process affects this disparity. When the gap

is less than two hours, the disparity in accuracy is nonexistent. When the

gap is twenty-four hours, showups are almost four times as likely to

produce a misidentification with an error rate as high as 58%. Yarmey,

Lineup Accuracy, 20 Law & Hum. Behav. at 465. Thus the combination of

delay in the identification process and a one person showup produces a

very high risk of misidentification. See Amy Luria, Showup Identifications:

A Comprehensive Overview of the Problems and a Discussion of Necessary

Changes, 86 Neb. L. Rev. 515, 516, 519–20 (2008).
                                        51

      In-court identifications, of course, are a highly suggestive form of

one person showups. According to Gary Wells and Eric P. Seelau, “in-

court identification is a mere formality, of course, and should not be given

much credence, because it is usually obvious who is on trial.” Gary L.

Wells & Eric P. Seelau, Eyewitness Identification: Psychological Research

and Legal Policy on Lineups, 1 Psychol., Pub. Pol’y, & L. 765, 766 (1995);

see also Ralph Norman Haber & Lyn Haber, Experiencing, Remembering

and Reporting Events, 6 Psychol., Pub. Pol’y, & L. 1057, 1082 (2000).

       In some respects, an in-court identification is worse than the usual

showup. In an in-court identification, the state has arrested and charged

the defendant.    His appearance in court does not simply suggest, but

strongly announces in the solemnity of the courtroom, that the state

believes the defendant is guilty.             See Jules Epstein, Irreparable

Misidentifications   and     Reliability:    Reassessing   the   Threshold   for

Admissibility of Eyewitness Identification, 58 Vill. L. Rev. 69, 69–70 (2013);

Aliza B. Kaplan & Janis C. Puracal, Who Could It Be Now: Challenging the

Reliability of First Time in-Court Identifications After State v. Henderson and

State v. Lawson, 105 J. Crim. L. & Criminology 947, 954 (2015); Dana

Walsh, The Dangers of Eyewitness Identification: A Call for Greater State

Involvement to Ensure Fundamental Fairness, 36 B.C. Int’l & Comp. L. Rev.

1415, 1416–17 (2013).

      As noted by Loftus and her colleagues, a first-time, in-court

identification is not more reliable, but it is more compelling. Loftus et al.,

Civil and Criminal § 8.17(e), at 182–83. That spells real trouble for those

concerned with accurate verdicts.

      I. Consensus      in    the   Eyewitness      Identification   Scholarly

Community. The mere fact that an isolated study or two come to a certain

conclusion is ordinarily not enough to move the law. Certainly the law
                                     52

responds to science, but it moves slowly.      But move it does.     When a

scholarly consensus emerges on basic scientific principles, however, the

law must adapt to avoid mindless perpetuation of irrational and arbitrary

processes.

      Here, there is clearly a scholarly consensus. Based on the evidence

before a special master, the New Jersey Supreme Court agreed with one of

the experts who testified that eyewitness research represents the “gold

standard in terms of the applicability of social science research to the law.”

Henderson, 27 A.2d at 916. As noted in Henderson,

      Experimental methods and findings have been tested and
      retested, subjected to scientific scrutiny through peer-
      reviewed journals, evaluated through the lens of meta-
      analyses, and replicated at times in real-world settings. As
      reflected above, consensus exists among the experts who
      testified on remand and within the broader research
      community.

Id. The state of the eyewitness science was described in the amicus brief

filed by the American Psychological Association in Perry. According to the

APA, “[e]yewitness science is widely accepted within the scientific

community, and its key findings are largely uncontroversial.” APA Amicus

at *9 n.5.
      J. Summary.       The above factors should inform the analysis of

whether an eyewitness identification runs an unacceptable risk of being

unreliable. They offer an opportunity to introduce science into the analysis

of reliability. It must be emphasized, however, that the factors are not

checklist-type midterm exam where scoring 70% amounts to a passing

grade. Any one of the factors might overwhelm the other factors in a given

case. For example, a highly suggestive photo array could spoil what might

otherwise have been a perfect identification procedure. Conversely, an
                                            53

identification process using an excellent photo array may be undermined

by suggestive comments by officers.

     V. The Development of the Nonscience Based Approach of the
United States Supreme Court.

       A. The Wade, Gilbert, and Stovall Trilogy: Promising but

Ambiguous Beginnings.

       1. Introduction. The United States Supreme Court considered the

admissibility of eyewitness testimony in three cases in the late 1960s:

Wade, 388 U.S. 218, 87 S. Ct. 1926, Gilbert v. California, 388 U.S. 263, 87

S. Ct. 1951 (1967), and Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967

(1967), abrogated on other grounds by United States v. Johnson, 457 U.S.

537, 102 S. Ct. 2579 (1982). In these cases, the United States Supreme

Court demonstrated sensitivity and awareness of the possibility of

misidentification through suggestive identification procedures.

       2. Wade and Gilbert. In Wade, the Supreme Court considered an

eyewitness identification made at a postindictment without notice to, and

in the absence of, the defendant’s counsel. Id. at 219–20, 87 S. Ct. at

1928. The Wade Court held that a defendant has a right to counsel at any

stage of the prosecution where the absence of counsel might affect the

accused’s right to a fair trial. Id. at 227–28, 87 S. Ct. at 1932–33. 10
       The Wade Court concluded that a lineup was a critical stage where

counsel was needed, noting that “identification evidence is peculiarly

riddled with innumerable dangers and variable factors which might

seriously, even crucially, derogate from a fair trial.” Id. at 228, 87 S. Ct.

at 1933. Further, the Wade Court stated that the suggestive nature of the

government’s identification process was “[a] major factor contributing to


       10The   right to counsel holdings in Wade and Gilbert were later eviscerated in Kirby
v. Illinois, 406 U.S. 682, 690, 92 S. Ct. 1877, 1882–83 (1972).
                                           54

the high incidence of miscarriage of justice from mistaken identification.”

Id. The Wade Court also noted that “the dangers for the suspect are

particularly grave when the witness’ opportunity for observation was

insubstantial, and thus his susceptibility to suggestion the greatest.” Id.

at 229, 87 S. Ct. at 1933. 11

       In Wade, however, although the lineup involved was highly

suggestive, the question was whether an in-court identification could be

admitted notwithstanding the highly suggestive pretrial identification. Id.

at 239–40, 87 S. Ct. at 1939. The Wade Court concluded that the state

should be given the opportunity to show by clear and convincing evidence

that the in-court identifications were based upon observations of the

suspect independent of the lineup. Id. at 240, 87 S. Ct. at 1939. The

Wade Court did not elaborate on the manner in which the district court

was to determine whether the in-court identification could be considered

independent of the prior identification.

       In an interesting dissent, Justice White, joined by Justices Harlan

and Stewart, criticized the majority for its prophylactic per se rule that the

absence of counsel invalidated the pretrial identification. Id. at 251–52,

87 S. Ct. 1944–45. Justice White, however, showed an empirical bent,



       11The Wade Court cited to a number of identification procedures in caselaw that

were strikingly suggestive:
               [F]or example, that all in the lineup but the suspect were known to
       the identifying witness, that the other participants in a lineup were grossly
       dissimilar in appearance to the suspect, that only the suspect was required
       to wear distinctive clothing which the culprit allegedly wore, that the
       witness is told by the police that they have caught the culprit after which
       the defendant is brought before the witness alone or is viewed in jail, that
       the suspect is pointed out before or during a lineup, and that the
       participants in the lineup are asked to try on an article of clothing which
       fits only the suspect.
Id. at 233, 87 S. Ct. at 1935–36 (footnotes omitted).
                                    55

stating that he would certainly bow to solid facts about how police conduct

interrogations in the future. Id.

      A similar result occurred in Gilbert, 388 U.S. 263, 87 S. Ct. 1951.

There, the eyewitnesses identified the defendant in a postindictment

lineup held in an auditorium attended by upwards of one hundred

persons.   Id. at 269–70, 87 S. Ct. at 1955.     Defense counsel was not

present at the identifications and the identifications were subject to a per

se exclusionary rule. Id. at 271, 273, 87 S. Ct. at 1955–57. The state in

this case was

      not entitled to an opportunity to show that that testimony had
      an independent source. Only a per se exclusionary rule as to
      such testimony can be an effective sanction to assure that law
      enforcement authorities will respect the accused’s
      constitutional right to the presence of his counsel at the
      critical lineup. . . . [T]he desirability of deterring the
      constitutionally objectionable practice must prevail over the
      undesirability of excluding relevant evidence.

Id. at 273, 87 S. Ct. at 1957.

      3. Stovall. The last case in the first eyewitness trilogy is Stovall,

388 U.S. 293, 87 S. Ct. 1967. In Stovall, the defendant was arrested in

connection with a knife attack on a husband and wife, causing the

husband’s death and seriously wounding the wife who required

hospitalization for life-saving surgery. Id. at 295, 87 S. Ct. 1969. The

defendant was brought to the wife’s hospital room, handcuffed to one of

five police officers. Id. The defendant was the only African-American in

the room. Id. After the defendant repeated a few words at the direction of

a police officer for voice identification, the victim identified him as the

assailant. Id. At trial, evidence was admitted related to the hospital room

identification, and in addition, the victim subsequently made an in-court

identification. Id. The defendant was convicted and sentenced to death.
                                      56

Id. Stovall sought to collaterally attack his conviction in federal court. Id.

at 295–96, 87 S. Ct. 1969.

      The Stovall Court first determined that the right-to-counsel holdings

of Wade and Gilbert were not retroactive and, as a result, Stovall was not

entitled to the benefit of these right-to-counsel rulings. Id. at 296–301, 87

S. Ct. 1969–72.     The Stovall Court’s decision turned on a different

argument,    namely,    that   the    eyewitness     identification    “was   so

unnecessarily    suggestive    and   conducive     to    irreparable   mistaken

identification that [the admission of the identification] denied [the

defendant] due process of law.” Id. at 301–02, 87 S. Ct. at 1972. The

Stovall Court emphasized that the due process “is a recognized ground of

attack upon a conviction independent of any right to counsel claim”

developed in Wade and Gilbert. Id. at 302, 87 S. Ct. at 1972.

      The Supreme Court also noted briefly 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.   Yet, the Stovall Court

declared that “a claimed violation of due process of law in the conduct of

a confrontation [eyewitness identification] depends on the totality of the

circumstances surrounding it.”       Id.   The Stovall Court concluded that

under the totality of circumstances, the presentation of the suspect to the

hospitalized witness was imperative and, in light of her medical condition,

“the usual police station line-up, which Stovall now argues he should have

had, was out of the question.” Id. at 302, 87 S. Ct. at 1972–73. In short,

although one person showups are highly disfavored, the state can

overcome such shortcomings by making a persuasive showing of

necessity.

      4. Summary. Two observations arise from the Wade/Gilbert/Stovall

line of cases. First, Wade and Gilbert demonstrate that per se prophylactic
                                       57

rules may be required to preserve the integrity of the underlying court

processes. Second, independent of the right to counsel, a defendant may

challenge unnecessarily suggestive identification processes that are

conducive to irreparable mistaken identification and seek exclusion of the

evidence from trial, on due process grounds. Third, in these cases, the

Supreme Court showed considerable sensitivity to the problem of

eyewitness misidentification.

       B. Simmons, Foster, and Coleman: Development of Barriers to

Due Process Relief.

       1. Introduction.     In   the    immediate    years   following   the

Wade/Gilbert/Stovall line of cases, the Supreme Court addressed

eyewitness identification in Simmons v. United States, 390 U.S. 377, 88

S. Ct. 967 (1968), Foster v. California, 394 U.S. 440, 89 S. Ct. 1127 (1969),

and Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999 (1970). In general,

while retaining a theory of due process challenge to eyewitness testimony,

the majority made it more difficult to prove a due process challenge by

grafting onto the previous caselaw an additional multifactor requirement

of reliability.

       2. Simmons. In Simmons, a defendant was charged with armed

robbery of a savings and loan association. 390 U.S. at 379, 88 S. Ct. at

969. Five employees of the savings and loan identified the defendant the

morning after the robbery from a photograph of the suspects obtained from

another suspect’s family member. Id. at 380, 88 S. Ct. at 969. At trial,

the state relied upon in-court identification of the five witnesses. Id. at

381, 88 S. Ct. at 970. Simmons claimed that the pretrial identification

procedure was so unduly prejudicial as to fatally taint his conviction. Id.

       The Simmons Court recognized that there was some danger that

eyewitness misidentifications may arise even with the most correct
                                     58

photographic identification procedures. Id. at 383–84, 88 S. Ct. at 971.

Simmons further recognized that improper employment of photographs by

police may sometimes cause witnesses to err in identifying criminals. Id.

On the other hand, the Simmons Court observed that eyewitness

identifications had been used widely and effectively to apprehend offenders

and to “spar[e] innocent suspects the ignominy of arrest.” Id. at 384, 88

S. Ct. at 971. The danger of the use of eyewitness identification, according

to the Simmons Court “may be substantially lessened by a course of cross-

examination at trial which exposes to the jury the method’s potential for

error.” Id.

      The Simmons Court rejected a rule-based approach to eyewitness

identification and instead noted that each case must be considered on its

own facts. Id. The Simmons Court declared that “convictions based on

eyewitness identification at trial following a pretrial identification by

photograph will be set aside . . . only if the photographic identification

procedure was so impermissibly suggestive as to give rise to a very

substantial likelihood of irreparable misidentification.” Id.

      Examining the facts, the Simmons Court concluded that the

defendant was not entitled to relief. Id. The Simmons Court noted that

the defendant did not suggest that the photographic identification was

“unnecessary” in light of the interest to swiftly find the offenders. Id. at

384–85, 88 S. Ct. at 971. Further, the Simmons Court noted that there

was little chance of a misidentification, observing among other things that

the robbery took place in the afternoon in a well-lit bank, the robbers wore

no masks, five bank employees viewed the robbers for up to five minutes,

the identifications were made only a day later, all five bank employees

separately identified Simmons as one of the robbers, and none of the

witnesses expressed any doubt about the identifications. Id. at 385, 88
                                     59

S. Ct. at 971–72. As a result, according to the Simmons Court, there was

“little room for doubt that the identification of Simmons was correct, even

though the identification procedure employed may have in some respects

fallen short of the ideal.” Id. at 385–86, 88 S. Ct. at 972.

      In Simmons, Justice Black concurred in part and dissented in part.

Id. at 395–99, 88 S. Ct. at 977–79 (Black, J. concurring in part and

dissenting in part).   He took the view that the reliability of eyewitness

testimony was a matter for the jury and not subject to due process attack.

Id. at 395–96, 88 S. Ct. at 977.       He characterized this theory, later

advanced by the defendant in Coleman, 399 U.S. 1, 90 S. Ct. 1999, as

“frivolous.” Id. at 395, 88 S. Ct. at 977. No other member of the Court

joined his opinion.

      3. Foster. The Supreme Court then considered a challenge to a

suggestive police lineup in Foster, 394 U.S. 440, 89 S. Ct. 1127. In Foster,

the defendant was charged with armed robbery of a Western Union office.

Id. at 441, 89 S. Ct. at 1127. The only eyewitness to the crime was asked

to make an identification from a lineup consisting of three men. Id. at 441,

89 S. Ct. at 1128. The defendant was around six feet tall, while the other

men were around half-a-foot shorter than the defendant.           Id.   The

defendant also wore a letter jacket, which the eyewitness said was similar

to one seen underneath the coveralls of the robber. Id. The eyewitness

could not positively identify the defendant, though he “ ‘thought’ he was

the man.” Id. After the defendant was brought into the room to speak to

the eyewitness, no positive identification resulted. Id. A week or ten days

later, a second lineup of five men occurred where defendant was the only

person who had been in the first lineup. Id. at 441–42, 89 S. Ct. at 1128.

This time, the eyewitness was “convinced” the defendant was the robber.

Id. at 442, 89 S. Ct. at 1128.
                                        60

      Applying the test articulated in Simmons, the Foster Court held that

the identification procedure in this case “presents a compelling example of

unfair lineup procedures.” Id. The Foster Court noted that the eyewitness

was presented with three opportunities to identify the defendant: a highly

suggestive three man lineup where defendant was made distinctive by his

height and attire, a one-on-one confrontation that was the equivalent of a

one man showup, and then a second five man lineup where the defendant

was the only person who also participated in the first lineup. Id. at 442–

43, 89 S. Ct. at 1128–29. The Foster Court stated that “[i]n effect, the

police repeatedly said to the witness, ‘This is the man.’ ” Id. at 443, 89

S. Ct. at 1129. The identification procedure employed “so undermined the

reliability of the eyewitness identification as to violate due process.” Id.

As a result, the Court reversed the case and remanded it for consideration

as to whether any error was harmless. Id. at 443–44, 89 S. Ct. at 1129.

      Justice Black again expressed in a solo dissent the view that the

reliability of an eyewitness identification procedure was solely a question

for the jury. Id. at 444–53, 89 S. Ct. at 1129–34 (Black, J. dissenting).

      4. Coleman. Finally, in Coleman, 399 U.S. 1, 90 S. Ct. 1999, two

defendants, convicted of assault with intent to murder, challenged their

convictions based in part upon a station-house lineup they contend was

“so unduly prejudicial and conducive to irreparable misidentification as

[to] fatally . . . taint [the] in-court identifications of them” by the victim. Id.

at 3, 90 S. Ct. at 2000. After the crime, the victim was only able to give a

vague description that the perpetrators were young African-American

males of similar age and height. Id. at 4, 90 S. Ct. at 2001. Yet, at a lineup

two months after the incident, the victim claimed to have immediately

identified Coleman in the lineup. Id. at 5, 90 S. Ct. at 2001. The victim

subsequently made an in-court identification. Id.
                                     61

      On the record before it, the Coleman Court held that it could not find

“that the trial court erred in finding that [the victim’s] in-court

identification of the [defendants] did not stem from an identification

procedure at the lineup ‘so impermissibly suggestive as to give rise to a

very substantial likelihood of irreparable misidentification.’ ”    Id.   The

Coleman Court could have found that the identification was based upon

observations at the time of the assault and was not prejudiced by the

lineup, but they deigned to do so. Id. at 5–6, 90 S. Ct. at 2001. Further,

the Coleman Court noted that because the victim immediately identified

the defendant without any prompting or suggestion, any factual dispute

regarding whether the defendant was the only one required to speak did

not aid or influence the identification. Id. at 6, 90 S. Ct. at 2001–02. The

Coleman Court further found the fact that the defendant was the only one

in the lineup to wear a hat was insufficient to show that he was unfairly

singled out, as the police did not require the hat to be worn and the witness

later asked that it be removed to allow a better view of the suspect’s face.

Id. at 6, 90 S. Ct. at 2002.

      5. Summary. Wade, Gilbert, and Stovall were brief opinions setting

forth the bare structure of a potential due process claim arising out of

eyewitness identification. These opinions contained opaque but robust

language. Simmons in particular seems to represent a retreat, particularly

from the potential reach of Stovall, when it added a new requirement that,

to give rise to a due process claim, the identification procedure must under

“the totality of surrounding circumstances” be “so impermissibly

suggestive as to give rise to a very substantial likelihood of irreparable

misidentification.” Simmons, 390 U.S. at 383, 384, 88 S. Ct. at 970, 971.

Whether the change in language from “unnecessarily suggestive” to
                                     62

“impermissibly suggestive” was designed to be substantive is not clear

from the opinion.

      Yet, Foster demonstrated that the due process doctrine was not

completely hollow, at least in a case where the eyewitness failed to identify

the defendant, participated in a suggestive lineup that did not yield an

identification, provided a showup yielding only a tentative identification,

and then participated in another lineup where the eyewitness finally made

a definite identification. Foster, 394 U.S. at 442–43, 89 S. Ct. at 1128–29.

Further, Foster squarely stands for the proposition that a remedy for a

constitutionally flawed identification potentially may be exclusion of

evidence. Id. at 443, 89 S. Ct. at 1129.

      Finally, in all three cases, Simmons, Foster, and Coleman were three

turns on the screw establishing “a very substantial likelihood of

irreparable misidentification” as the focus of reliability analysis. In its

development of its due process framework and its analysis of reliability,

the Supreme Court was unaided by the large body of eyewitness science

that would become available decades later.

      C. Biggers and Manson: The Emergence of Seat-of-the-Pants

Constitutional Criteria.

      1. Introduction. The United States Supreme Court returned to the

question of the admission of eyewitness testimony in Biggers, 409 U.S.

188, 93 S. Ct. 375, and Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243

(1977).   Like their predecessors, these forty-year-old cases predate the

explosion in eyewitness science which occurred largely in later years.

Nonetheless, Biggers and Manson form the basis of current federal

constitutional law on the due process challenges to              eyewitness

identification.
                                     63

      2. Biggers. In Biggers, a defendant convicted of rape challenged an

eyewitness identification on due process grounds. Biggers, 409 U.S. at

189–90, 93 S. Ct. at 377–78. In this case, the victim alleged the defendant

grabbed her from behind and threw her down on the floor in a kitchen that

had no light, though the victim claimed that at one point during the attack

sufficient light shined through from the bedroom to see the defendant’s

face. Id. at 193–94, 93 S. Ct. at 379. When the victim’s screams alerted

the victim’s daughter to the attack, the daughter also screamed, and the

assailant demanded that the victim tell her to shut up or both would be

killed. Id. at 194, 93 S. Ct. at 379. The assailant forced the victim outside

and into the woods at knifepoint, under a full moon, and raped her. Id.

The attack took approximately fifteen to thirty minutes. Id.

      The victim testified in the criminal prosecution that she provided

police with “a very general description” of the assailant as “being fat and

flabby with smooth skin, bushy hair and a youthful voice.” Id. at 194, 93

S. Ct. at 380. At the federal habeas hearing, she further testified that she

“described her assailant as being between 16 and 18 years old and

between five feet ten inches and six feet, tall, as weighing between 180 and

200 pounds, and as having a dark brown complexion.” Id.

      The victim was shown between thirty and forty photographs, finding

only one individual with similar features to her assailant, but did not make

an identification. Id. at 195, 93 S. Ct. at 380. When police arrested the

individual with similar features on other charges, they asked the victim to

come to the police station. Id. Police could not find additional stand-ins

with similar features for a lineup, and elected to do a one person showup

instead. Id. The suspect, accompanied by officers, was marched past the

victim and instructed to say “shut up or I’ll kill you.” Id. The victim made

an identification from the showup. Id.
                                    64

      In considering the due process issue, the Biggers Court canvassed

prior cases, and emphasized that “the primary evil to be avoided is ‘a very

substantial likelihood of irreparable misidentification.’ ” Id. at 198, 93

S. Ct. at 381 (quoting Simmons, 390 U.S. at 384, 88 S. Ct. at 971). The

Supreme Court doubled down, noting that “[i]t is the likelihood of

misidentification which violates a defendant’s right to due process, and it

is this which was the basis of the exclusion of evidence in Foster.” Id. at

198, 93 S. Ct. at 381–82.

      The Biggers Court addressed the question of whether unnecessary

suggestiveness in an identification procedure alone was sufficient to give

rise to a due process violation, stating that a “strict rule” to that effect

would “deter the police from using a less reliable procedure where a more

reliable one may be available.” Id. at 199, 93 S. Ct. at 382. However, the

Court moved on to “whether under the ‘totality of the circumstances’ the

identification was reliable even though the confrontation procedure was

suggestive.” Id. In order to make that determination, the Biggers Court

stated that

      the factors to be considered in evaluating the likelihood of
      misidentification include the opportunity of the witness to
      view the criminal at the time of the crime, the witness’ degree
      of attention, the accuracy of the witness’ prior description of
      the criminal, the level of certainty demonstrated by the
      witness at the confrontation, and the length of time between
      the crime and the confrontation.

Id. at 199–200, 93 S. Ct. at 382. There was no indication at all of where

these five factors came from, but they were simply declared ipse dixit.

      Applying these factors of unexplained origin, the Biggers Court

determined that there was no substantial likelihood of misidentification in

this case. Id. at 200, 93 S. Ct. at 382. In making this determination, the

Court noted the victim was attacked up to thirty minutes by the
                                     65

perpetrator under adequate artificial light in her house and under a full

moon outdoors, and on two occasions faced him directly and intimately.

Id. The Court emphasized that the eyewitness “was no casual observer,

but rather the victim of one of the most personally humiliating of all

crimes.”   Id. at 200, 93 S. Ct. at 382–83.         Her contemporaneous

description of the assailant to the police “might not have satisfied Proust

but was more than ordinarily thorough,” noting that the victim was “a

practical nurse by profession, [and] had an unusual opportunity to

observe and identify her assailant.”      Id. at 200–01, 93 S. Ct. at 383.

Further, the victim testified the defendant had a face “I don’t think I could

ever forget.” Id. at 201, 93 S. Ct. at 383.

      The Court did recognize that “a lapse of seven months between the

rape and the confrontation . . . would be a seriously negative factor in

most cases,” but, also noted that the witness had not made a prior

identification and resisted earlier suggestive procedures. Id. As a result,

weighing all the factors, the Court concluded that there was “no

substantial likelihood of misidentification.” Id.

      Justice Brennan, joined by Justices Douglas and Stewart,

concurred in part and dissented in part. Id. at 201–04, 93 S. Ct. at 384

(Brennan, J., concurring in part and dissenting in part). Justice Brennan

did not directly attack the Biggers factors but instead challenged their

application in the case, emphasizing that the district court and the court

of appeals concluded under all the facts and circumstances that there

existed an “intolerable risk of misidentification.” Id. at 202, 93 S. Ct. at

384. Justice Brennan concluded that the Court should honor the lower

court determinations in this case. Id. at 203–04, 93 S. Ct. at 384.

      3. Manson.      In 1977, the Supreme Court considered another

challenge to eyewitness identification in Manson, 432 U.S. 98, 97 S. Ct.
                                    66

2243. In Manson, undercover officers engaged in a drug transaction at the

door of a third floor apartment. Id. at 99–100, 97 S. Ct. at 2245–46. One

of the officers knocked on the door, which opened twelve to eighteen

inches, and observed a man standing at the door. Id. at 100, 97 S. Ct. at

2246. The undercover officer gave the man money, the door closed, and

soon thereafter the man opened the door and gave the undercover officer

two glassine bags. Id. The area was illuminated by a window in the third

floor hallway, and the entire transaction took approximately five to seven

minutes. Id. at 100–01, 97 S. Ct. at 2246.

      After the transaction, the undercover officer described the man to

other police officers in some detail. Id. at 101, 97 S. Ct. at 2246. From

the description, one of the other officers suspected that the defendant may

have been the person selling the drugs and left the photograph at the office

of the undercover officer. Id. When the undercover officer returned to the

office, he identified the person in the photo as the person from whom he

had purchased drugs. Id. The photo of the defendant was admitted into

evidence at trial without objection, and the undercover officer also made

an in-court identification without objection. Id. at 102, 97 S. Ct. at 2247

“No explanation was offered by the prosecution for the failure to utilize a

photographic array or to conduct a lineup.” Id. at 102, 97 S. Ct. at 2247.

      On appeal for a petition for habeas corpus, the United States Court

of Appeals for the Second Circuit concluded that the use of the photograph

was suggestive and unnecessary. Id. at 103–04, 97 S. Ct. at 2247. Indeed,

Thus, the question avoided in Biggers was posed: Is a post-Stovall showup

that is unnecessary subject to a per se rule of exclusion? Id. at 107, 97 S.

Ct. at 2249.

      The Manson Court considered factors weighing in favor and against

exclusion, distinguishing between two possible approaches: one that
                                     67

focused on the suggestive procedure and the other, more lenient approach,

that focused on the totality of the circumstances. Id. at 110–11, 97 S. Ct.

at 2250–51. The Manson Court cited an opinion by then-Judge John Paul

Stevens, noting, “There is surprising unanimity among scholars in

regarding such a rule [the per se approach] as essential to avoid serious

risk of miscarriage of justice.” Id. at 111, 97 S. Ct. at 2251 (alteration in

original) (quoting United States ex rel. Kirby v. Sturges, 510 F.2d 397, 405

(7th Cir. 1975)).    The Manson Court acknowledged the defendant’s

argument that a totality rule does not provide adequate deterrence, that

identification evidence is so convincing to the jury that sweeping

exclusionary rules are required, and that the fairness of the trial is

threatened by a suggestive confrontation. Id. at 111, 97 S. Ct. at 2251.

      While recognizing arguments to the contrary, the Manson Court

rejected the per se approach for three reasons. First, the Manson Court

stated that the per se rule swept too far would keep evidence from the jury

that is reliable and relevant. Id. at 112, 97 S. Ct. at 2252. Second, the

Manson Court found that while the per se approach has the more

significant deterrent effect, the totality approach also has an influence on

police behavior. Id. Finally, the Manson Court cited concerns that the

administration of justice may be impeded by the denial of admission of

reliable evidence. Id. at 112–13, 97 S. Ct. at 2251. As a result of these

three factors, the Manson Court declared that “reliability is the linchpin in

determining the admissibility of identification testimony for both pre- and

post-Stovall confrontations.” Id. at 114, 97 S. Ct. at 2253. Applying the

five Biggers factors, the Court concluded that the eyewitness evidence,

though the product of a suggestive showup, was nevertheless sufficiently

reliable to go to the jury. Id. at 117, 97 S. Ct. at 2254.
                                         68

      Justice Marshall, joined by Justice Brennan, dissented. Id. at 118–

36, 97 S. Ct. at 2255–64 (Marshall, J. dissenting).            Justice Marshall

emphasized that the language in Wade noting the “high incidence of

miscarriage of justice” applied in this case as well. Id. at 119, 97 S. Ct. at

2255 (quoting Wade, 388 U.S. at 228, 87 S. Ct. at 1933). He urged a

return   to   the    principle   in   Stovall   that   unnecessarily   suggestive

identification should be subject to per se exclusion. Id. at 128, 97 S. Ct.

at 2260. In the alternative, Justice Marshall reviewed the facts of the case

in light of the five Biggers factors, concluding that under application in

this case, there was a serious risk of irreparable misidentification. Id. at

135–36, 97 S. Ct. at 2264.

      4. Summary. Biggers and Manson plainly retreat from enforcement

of a per se exclusionary rule as suggested in Stovall in favor of an ad hoc,

case-by-case analysis of eyewitness identification under the unique facts

of each case for both lineups and showups.             This difference between a

more stringent per se approach and an ad hoc multifactored approach was

based upon different perceptions of the depth of the problem by members

of the Court.       Clearly, Justices Marshall and Brennan stressed the

injustice of conviction based on mistaken but highly persuasive eyewitness

identifications, while the more conservative members of the Court seemed

most concerned with upholding verdicts and conserving judicial resources.

      The dissents in Biggers and Manson also demonstrate how

conscientious judges can come to different conclusions on the ad hoc

judgment required for flawed lineups. The pliable multifactored test is

sufficiently flexible to allow admission of most suggestive eyewitness

identification.     See David E. Paseltiner, Twenty-Years of Diminishing

Protection: A Proposal to Return to the Wade Trilogy’s Standards, 15 Hofstra
                                          69

L. Rev. 583, 606 (1987) [hereinafter Paseltiner, Diminishing Protection]. Put

simply, Biggers and Manson were not informed by science. 12

       E. Analysis of Biggers Factors in Light of Modern Eyewitness

Science.

       1. Introduction. The five-factor Biggers test developed forty years

ago is now largely discredited in light of the accumulated eyewitness

science. At the outset, the results of social science and DNA exonerations

have highlighted the depth of the problem. Obtaining accurate, reliable

eyewitness identification is not a one-off issue in an occasional case, but

is widespread throughout our criminal justice system.                       Thus, the

dimension of the problem of eyewitness identification is more consistent

with Stovall and the dissenting opinions of Justices Marshall and Brennan

than with the majority view in Biggers and Manson.

       In addition, there are four avenues of criticism for the Biggers

factors. First, some of the five identified factors themselves are simply

inaccurate indicators of the reliability of eyewitness identifications.

Second, three of the five factors for judging reliability are not independent

of a suggestive underlying identification.             In other words, the more

suggestive the underlying identification, the greater the likelihood of an

eyewitness confirming the accuracy of identification through the Biggers

factors. Third, the five factors do not consider potent additional factors

that can dramatically impact reliability. Finally, as a multifactored test,

the Biggers test fails to produce consistent results and may too often be

applied in an outcome oriented manner. Cumulatively, the validity of the




       12In  the 1970s, only four published articles appeared in the psychological
literature containing the words “eyewitness” and “identify” in their abstract. Henderson,
27 A.3d at 892.
                                       70

Biggers test has been washed away by the overwhelming flood of

eyewitness science.

      2. Inaccurate factors: consistency and confidence. With respect to

inaccuracy, two of the five Biggers factors are flawed. First, the notion

that consistency of the identification with a previous description is an

element of reliability is circular. It may simply show that the eyewitness

is consistently erroneous.       As noted by Wells and Quinlivan, the

consistency thus may show accuracy with the person identified by the

eyewitness, but may not be accurate in connection with the real culprit.

Wells & Quinlivan, Suggestive Procedures, 33 Law & Hum. Behav. at 12–

13.

      Second, as noted above, the certainty factor in Biggers is not

meaningfully related to accuracy. The eyewitness science on this issue

has been canvassed earlier in this opinion and need not be repeated. By

way of summary, confirmatory statements from lineup administrators

consistently inflate eyewitness certainly for eyewitnesses who are, in fact,

mistaken. Id. A spontaneous exclamation of certainty in a nonsuggestive

setting may have some value but only if such expression arises in a

pristine, nonsuggestive setting. Id.

      3. Bitter irony: The more suggestive the identification, the more likely

it satisfies Biggers criteria.   In addition, the literature notes that the

suggestive factors of an identification bleed into and affect the reliability

factors. The first three Biggers criteria of view, attention, and certainty,

are retrospective self-reports that ask a witness to report on their own

credibility. As noted in the discussion of eyewitness science presented

earlier, these self-reports are influenced by the suggestiveness of the

underlying identification procedure. Thus, a suggestive procedure drives

up the view, attention, and certainty criteria of reliability.           This
                                          71

interrelationship produces a huge irony: the more suggestive the

procedure, the greater the likelihood of reliability. Id. at 16–17. Rather

than its intended purpose of deterrence, the Biggers test encourages

suggestive procedures that artificially inflate witness self-reporting of

reliability factors.

       4. Incomplete character of Biggers factors. As should be apparent

from the above discussion, the Biggers factors are woefully incomplete.

They do not include a wide selection of estimator and system variables. Id.

at 21. As the preceding discussion of eyewitness science demonstrates,

the list of excluded items is extensive.

       5. Outcome oriented application. Finally, the indefinite character of

the five factor Biggers test invites outcome oriented applications. Id. at 18.

There is no clear indication of where to draw the line, and thus there is a

tendency to draw no line at all.                 And, as Biggers and Manson

demonstrated, the five factors are quite malleable and produce different

results for different judges.          But under the Biggers approach, the

condemned showup has flourished because the malleable Biggers

standards have not provided a barrier to admission of suggestive

identifications. 13    Accordingly, “even intentional or flagrant suggestive
conduct might produce no negative consequences for the police under the

totality of circumstances approach.”            Steven P. Grossman, Suggestive

Identifications: The Supreme Court’s Due Process Test Fails to Meet Its Own

Criteria, 11 U. Balt. L. Rev. 53, 59 (1981); see Brandon L. Garrett,

Eyewitnesses and Exclusion, 65 Vand. L. Rev. 449, 451–52 (2012) (arguing

       13The   tendency of courts to admit identifications arising from unnecessarily
suggestive procedures is strong. According to one study, post-Biggers federal courts
upheld admissibility challenges of eyewitness testimony produced by suggestive
identification procedures in nine times out of ten. Nicholas A. Kahn-Fogel, Manson and
Its Progeny: An Empirical Analysis of American Eyewitness Law, 3 Ala. C.R. & C.L. L. Rev.
175, 209–10 (2012).
                                     72

that the Biggers test is fundamentally flawed and weighted toward

inclusion of inherently unreliable evidence).

      6. Summary. Both legal scholars and psychological experts decry

the Biggers test. The scholarly legal opinion is unanimously critical. See,

e.g., Nicholas A. Kahn-Fogel, Manson and Its Progeny: An Empirical

Analysis of American Eyewitness Law, 3 Ala. C.R. & C.L. L. Rev. 175, 191–

96 (2012) [hereinafter Kahn-Fogel, Manson Empirical Analysis] (citing

“unanimous opposition” among legal scholars to the Supreme Court

approach in Manson); Margery Malkin Koosed, Reforming Eyewitness

Identification Law and Practice to Protect the Innocent, 42 Creighton L. Rev.

595, 601 (2009) (urging action to reverse the current trend “to tolerate

eyewitness identification procedures that gratuitously increase the risk of

convicting innocent persons”); Timothy P. O’Toole & Giovanna Shay,

Manson v. Brathwaite Revisited: Towards a New Rule of Decision for Due

Process Challenges to Eyewitness Identification Procedures, 41 Val. U. L.

Rev. 109, 121 (2006) [hereinafter O’Toole, Due Process Challenges]

(characterizing the problems with Manson as “fairly obvious in light of the

psychological research”); Paseltiner, Diminishing Protection, 15 Hofstra L.

Rev. at 606–07 (advocating per se exclusion of unnecessarily suggestive

identification procedures); Charles A. Pulaski, Neil v. Biggers: The Supreme

Court Dismantles the Wade Trilogy’s Due Process Protection, 26 Stan. L.

Rev. 1097, 1119–21 (1974) (noting the ways that Biggers substantially

undermined the due process safeguards of the Wade trilogy); David A.

Sonenshein & Robin Nilon, Eyewitness Errors and Wrongful Convictions:

Let’s Give Science a Chance, 89 Or. L. Rev. 263, 300–01 (2010) (canvassing

advances in scientific evidence as applied to the Biggers reliability factors,

and finding them “seriously flawed and ineffective”).
                                    73

      The opinion of eyewitness scientists is similar.     See, e.g., Wells,

Lineups and Photospreads, 22 Law & Hum. Behav. at 608 (finding the U.S.

Supreme Court’s safeguards fail to provide intended protection); Wells &

Quinlivan, Suggestive Procedures, 33 Law & Hum. Behav. at 1 (reviewing

studies and questioning the ongoing validity of Manson).

      The bottom line is expressed in Jones on Evidence as follows:

      [T]he due process standard and procedures the Supreme
      Court [has] promulgated . . . for assessing identification
      accuracy in criminal cases, including its five factor test, are
      seriously flawed and in fact may contribute to, rather than
      reduce, the number of wrongful convictions.

Clifford S. Fishman & Anne T. McKenna, 6 Jones on Evidence, § 40:8 (7th

ed.), Westlaw (database updated July 2019).

      Similarly, another scholar, after analyzing Federal caselaw applying

Manson in great detail, declared,

      Given ever-mounting proof of the ways that flawed analysis of
      the reliability of identification evidence can lead to admission
      of evidence that is, in fact, unreliable, courts must take
      responsibility for improving their evaluative frameworks to
      avoid undermining the validity of the conclusions they draw.
      Finally, given unanimous criticism and irrefutable proof from
      scientists and legal scholars that Manson has been
      inadequate to guard against admission of unreliable evidence,
      the Supreme Court must take responsibility for replacing its
      flawed standard with a workable due process test.

Kahn-Fogel, Manson Empirical Analysis, 3 Ala. C.R. & C.L. L. Rev. at 226.

      And, finally, another scholar has succinctly stated, “Sadly, the rule

of decision set out in Manson has failed to meet the Court’s objective of

furthering fairness and reliability. The results have been tragic.” O’Toole,

Due Process Challenges, 41 Val. U. L. Rev. at 110.
                                     74
      VI. Perry v. New Hampshire: Limiting Due Process Analysis to
Police-Orchestrated Identification (The State Action Requirement).

      A. Approach to State Action in Prior Federal Cases. Prior to
Perry, 565 U.S. 228, 132 S. Ct. 716, the federal courts were divided on the

question of whether a due process attack on an unduly suggestive

identification could arise under situations where the identification was not

police orchestrated. The First, Second, Sixth and Ninth Circuits held that

all unduly suggestive identifications could be attacked regardless of

whether there was police orchestration. See Dunnigan v. Keane, 137 F.3d

117, 128 (2d Cir. 1998) (“Preliminarily, we note our rejection of the State’s

contention that no due process scrutiny of [the witness’s] pretrial

identification was required on the theory that [the individual] who showed

the pictures, was a private investigator acting independently, and not as

an agent of the police.”), abrogated by Perry, 565 U.S. at 248, 132 S. Ct.

at 730; United States v. Bouthot, 878 F.2d 1506, 1516 (1st Cir. 1989)

(“[O]verly suggestive identifications are suppressed primarily to avoid an

unfair trial.”), abrogated by Perry, 565 U.S. at 248, 132 S. Ct. at 730;

Thigpen v. Cory, 804 F.2d 893, 895 (6th Cir. 1986) (“[O]nly the effects of,

rather than the causes for, pre-identification encounters should be

determinative of whether the confrontations were unduly suggestive.”),

abrogated by Perry, 565 U.S. at 248, 132 S. Ct. at 730; Green v. Loggins,

614 F.2d 219, 222 (9th Cir. 1980) (“[D]eterrence of [wrongful police]

conduct is not the primary purpose behind judicial review of tainted

identification testimony. Rather, a court reviews a challenged in-court

identification essentially to determine whether the witness’ testimony

retains sufficient indicia of reliability.”). The Third and Seventh Circuits,

however, came to the contrary conclusion. See United States v. Kimberlin,

805 F.2d 210, 233 (7th Cir. 1986) (“We do not agree that [a nonpolice-
                                      75

orchestrated lineup] triggers a due process right to judicial evaluation of

the reliability of the in-court identification under [Biggers].”); United States

v. Zeiler, 470 F.2d 717, 720 (3d Cir. 1972) (“Both Wade and Simmons were

concerned with the conduct of law enforcement officials in unfairly

influencing identifications.”). The United States Supreme Court in Perry

granted certiorari to resolve the split among the circuits on the question.

       B. Perry v. New Hampshire: Turning Biggers Upside Down. The

most recent United States Supreme Court case dealing with eyewitness

identification is Perry, 565 U.S. 228, 132 S. Ct. 716.          In Perry, police

responded to an early morning report that an African-American male was

breaking into cars in an apartment house parking lot. Id. at 233, 132

S. Ct. at 721. Police arrived at the scene and discovered Perry, an African-

American male, in the parking lot.         Id.    An eyewitness described the

perpetrator to police in general terms. Id. at 234, 132 S. Ct. at 721. When

police asked for a more specific description, the witness, looking out the

fourth floor apartment window, identified Perry in the parking lot standing

next to the police. Id. at 234, 132 S. Ct. at 722.

       About a month later, the police presented the witness with a photo

array that included Perry, but the witness could not identify Perry from

the presentation.    Id.   At trial, the state sought to introduce the prior

identification of Perry made from the fourth floor apartment window; Perry

attacked the identification as unnecessarily suggestive and amounting to

a one person showup. Id. at 234–35, 132 S. Ct. at 722. Perry was found

guilty of theft. Id. at 236, 132 S. Ct. at 723.

       The Perry Court affirmed the conviction. Id. at 248, 132 S. Ct. at

730.   According to the majority, the primary aim of the exclusion of

eyewitness    evidence     is   deterrence       of   unnecessarily   suggestive

identification procedures by law enforcement. Id. In this case, according
                                     76

to the Perry majority, law enforcement did not set up the identification;

instead, the witness simply made an identification out of the fourth story

window without any suggestion by police. Id. at 240–41, 132 S. Ct. at

725–26. As a result, it was not necessary to determine the reliability of the

eyewitness testimony. Id.

      In reaching its conclusion that the due process protections in the

Wade line of cases did not apply to identifications not involving police

orchestration, the Perry Court noted that juries, and not judges,

traditionally determine the reliability of evidence. Id. at 245, 132 S. Ct. at

728. The Perry Court observed that procedural safeguards such as cross-

examination and jury instructions are available to expose flaws and

evaluate credibility of such testimony. Id. at 245–47, 132 S. Ct. at 728–

29. The Perry Court stated that the constitutional requirement that the

state prove guilt beyond a reasonable doubt impedes convictions based on

dubious identification evidence. Id. at 247, 132 S. Ct. at 729. The Court

also noted that the rules of evidence permit trial judges to exclude relevant

evidence if its probative value is substantially outweighed by its prejudicial

impact. Id. And, expert witnesses and jury instructions are available to

assist the defense. Id. at 245–47, 132 S. Ct. at 728–29.

      Justice Sotomayor dissented. Id. at 249–65, 132 S. Ct. at 730–40

(Sotomayor, J., dissenting).    She noted that the due process concerns

expressed in the Wade line of cases was rooted not in deterrence but

instead on the reliability of the underlying identification. Id. at 250, 132

S. Ct. at 731. She saw no meaningful distinction between a suggestive

lineup orchestrated by police and a suggestive lineup inadvertently caused

by police. Id. She noted the “vast body of scientific literature” and “more

than 2000 studies” on eyewitness reliability undermine the majority

position, yet “merit[] barely a parenthetical mention in the majority
                                     77

opinion.”   Id. at 262–63, 132 S. Ct. at 738–39.      According to Justice

Sotomayor,

      Study after study demonstrates that eyewitness recollections
      are highly susceptible to distortion by postevent information
      or social cues; that jurors routinely overestimate the accuracy
      of eyewitness identifications; that jurors place the greatest
      weight on eyewitness confidence in assessing identifications
      even though confidence is a poor gauge of accuracy; and that
      suggestiveness can stem from sources beyond police-
      orchestrated procedures.

Id. at 264, 132 S. Ct. at 739 (footnotes omitted). According to Justice

Sotomayor, the majority “adopt[ed] an artificially narrow conception of the

dangers of suggestive identifications at a time when [the Court’s] concerns

should have deepened.” Id. at 264–65, 132 S. Ct. at 739.

      Justice Sotomayor also attacked the majority’s reliance on the

ordinary trial process to root out unreliable eyewitness identifications,

pointing out that this was the position of Justice Black in the dissents in

Foster and Simmons that were not previously adopted by the majority of
the Court nor should they be now. Id. at 260–61, 132 S. Ct. at 737.

      C. Analysis of Perry.

      1. Perry has no applicability to first-time, in-court identification.

Perry seems to draw a bright line between police orchestrated

identifications and identification arising out of the conduct of private

parties. Plainly, a first-time, in-court identification is infused with state

action. The state has arrested the defendant, charged the defendant with

a crime, brought the defendant into court, and presented the jury with an

eyewitness who knows that the state believes the defendant is the culprit.

It is hard to imagine a more intensive state involvement in a suggestive

lineup

      A contrary view would set a dangerous precedent and invite

gamesmanship. Specifically, if the state is concerned that an eyewitness
                                        78

might be uncertain, it could avoid a nonsuggestive lineup or photo array,

and instead present the witness in-court where the defendant is on trial.

In the most suggestive environment imaginable, a court of law, where the

defendant is facing potentially severe penalties, the witness is then asked

to identify the defendant. The witness knows their role, does not want to

disappoint, and is inclined to be helpful to the state. Even a witness who

could not describe the defendant’s facial features contemporaneously with

the crime can have a sudden improvement in memory!

       2. Deterrence as primary goal. It is simply not true that the prior

eyewitness identification cases of the United States Supreme Court were

based primarily on deterrence. Although such decisions are limited to

situations   where    police     have   not     orchestrated    the   eyewitness

identification, and thus have no application to first-time, in-court

identifications,   nothing     in   Perry,    for   instance,   establishes   this

extraordinary proposition.      Historically, due process has always been

about fundamental fairness toward a defendant or a person otherwise

deprived of life, liberty, or property. See, e.g., Tom Pryor, Note, Turner v.

Rogers, the Right to Counsel, and the Deficiencies of Mathews v. Eldridge,

97 Minn. L. Rev. 1854, 1855 (2013) (“In procedural due process cases . . .

the Court typically balances the interests of the individual against society’s

interests in order to determine whether the costs of additional procedural

protections are worth the decreased risk of an erroneous deprivation of

rights.”).

       Indeed, in case after case, the Supreme Court’s eyewitness

identification cases focused on the reliability of the identifications, not

deterrence. For instance, in Stovall, the Court noted that “it remains open

to all persons to allege and prove . . . that the confrontation resulted in

such unfairness that it infringed his right to due process of law,” and
                                      79

further that “[t]his is a recognized ground of attack upon a conviction

independent of any right to counsel claim.” Stovall, 388 U.S. at 299, 302,

87 S. Ct. at 1971, 1972.

      Similarly, in Foster, 394 U.S. 440, 89 S. Ct. 1127, the Supreme

Court declared that “it is the teaching of Wade, Gilbert, and Stovall . . .

that in some cases the procedures leading to an eyewitness identification

may be so defective as to make the identification constitutionally

inadmissible as a matter of law,” and further, that in this case, the

“[suggestive police] procedure so undermined the reliability of the

eyewitness identification as to violate due process.” Id. at 442 n.2, 443,

89 S. Ct. at 1128 n.2, 1129.

      In Coleman, 399 U.S. 1, 90 S. Ct. 1999, the Supreme Court repeated

its emphasis on fairness by noting that the question was whether the

identification process was “so unduly prejudicial and conducive to

irreparable misidentification as fatally to taint [the witness’s] in-court

identifications of [the defendants] at the trial.” Id. at 3, 90 S. Ct. at 2000.

      If there was any doubt, the Supreme Court clearly identified

reliability as the lodestar of the due process analysis in Biggers and

Manson. In Biggers, the Supreme Court declared that “the primary evil to

be avoided is ‘a very substantial likelihood of irreparable misidentification’

. . . which violates a defendant’s right to due process.” Biggers, 409 U.S.

at 198, 93 S. Ct. at 381–82 (quoting Simmons, 390 U.S. at 384, 88 S. Ct.

at 971). The Biggers “primary evil” approach was confirmed in Manson,

which declared that “reliability is the linchpin in determining the

admissibility of identification testimony for both pre- and post-Stovall

confrontations.” Manson, 432 U.S. at 114, 97 S. Ct. at 2253. In light of

the long line of cases, the majority’s apparent adoption of the erroneous
                                     80

suggestion that the due process cases have been “primarily” about

deterrence is simply not correct.

      Further, the notion that due process in the context of eyewitness

identification is based upon the reliability of the evidence is spot on. Due

process historically has always been about fundamental fairness.          See

N. C. Dep’t of Revenue v. Kimberley Rice Kaestner 1992 Family Tr., 588 U.S.

___, ___, 139 S. Ct. 2213, 2219 (2019) (“The Due Process Clause provides

that ‘[n]o State shall . . . deprive any person of life, liberty, or property,

without due process of law’ . . . [and] ‘centrally concerns the fundamental

fairness of governmental activity,’ ” (first quoting U.S. Const. amend. XIV;

and then quoting Quill Corp. v. North Dakota, 504 U.S. 298, 312, 112 S. Ct.

1904, 1913 (1992), overruled on other grounds by South Dakota v. Wayfair,

Inc., 585 U.S. ___, ___, 138 S. Ct. 2080, 2099 (2018)); Lassiter v. Dep’t of

Soc. Servs., 452 U.S. 18, 24–25, 101 S. Ct. 2153, 2158 (1981) (“[T]he

requirement of ‘fundamental fairness’ [in the Due Process Clause is] a

requirement whose meaning can be as opaque as its importance is lofty .

. . [and applying it] is therefore an uncertain enterprise which must

discover what ‘fundamental fairness’ consists of in a particular situation

by first considering any relevant precedents and then by assessing the

several interests that are at stake.”). The due process incorporation of the

Bill of Rights against the states was necessary to provide a defendant with

the “fundamental fairness essential to the very concept of justice.” Lisenba

v. California, 314 U.S. 219, 236, 62 S. Ct. 280, 290 (1941).           It has

repeatedly been said that the “touchstone” of due process is fundamental

fairness. See, e.g., Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S. Ct. 1756,

1763 (1973); United States v. Harrington, 749 F.3d 825, 828 (9th Cir.

2014); State v. Melendez, 834 P.2d 154, 157 (Ariz. 1992); Salas v. Cortez,

593 P.2d 226, 229 (Cal. 1979). Searching for the terms “due process” and
                                      81

“fundamental fairness” together in the same sentence produces thousands

of legal cases and scholarly articles.     Attempting a similar search for

caselaw finding the touchstone of due process is deterrence, however, is

fruitless.

      It is simply wrong for the Supreme Court to convert the federal

constitutional due process protection that a trial be fundamentally fair into

some kind of review for police misconduct. The eyewitness identification

context is fundamentally different than when exclusion of evidence is

sought under search and seizure provisions, where reliable evidence is

excluded in order to deter violation of constitutional rights. Here, the exact

opposite is taking place. Exclusion occurs not to deter police misconduct,

but to ensure the reliability of eyewitness evidence submitted to the jury.

Due process in this context requires a laser-like focus on the potential

reliability and prejudicial effects of a faulty eyewitness identification.

When the focus shifts to police, the tendency is to excuse misconduct, but

when the focus is on the fairness of the process to the individual, the

outcomes are dictated by the core value of due process:          fundamental

fairness for the accused.

      Further, any distinction between police-orchestrated identification

and the identification process in Perry, for purposes of fundamental

fairness, makes no sense. A wrongly convicted defendant will not sleep

better in a prison bed because a highly unreliable eyewitness identification

offered by the state in the defendant’s criminal prosecution was not a

product of explicit state action at the time of the identification. The gist of

due process, from the very beginning, has been to guarantee that any

action by the state, like a criminal prosecution, is fundamentally fair. The

purpose of the Due Process Clause is to protect the defendant from unfair

imposition of criminal sanction, not to function as some kind of beneficent
                                       82

police disciplinary board that gives law enforcement wide latitude in order

to maintain morale and obtain convictions by procuring unreliable

identification.

      3. Inconsistent application of deterrence goals. Even on its face, the

deterrence rationale in Perry is flawed. Under the Biggers formulation,

many unnecessarily suggestive identifications become admissible.           As

noted in Biggers, the deterrence of a per se rule was superior to the ad hoc

process of determining reliability based on a number of factors, yet the

Court insisted on focusing not on deterrence but instead on the reliability

of the underlying confession. In Biggers, the Court held that deterrence

played second fiddle to reliability.    Now, in Perry, the Supreme Court

suggests that deterrence is more important than reliability in a due

process attack on an eyewitness identification. It seems the main goal

here is not consistency of reasoning but consistency in result: highly

suggestive eyewitness identifications are not excluded and can be used to

convict defendants.

      4. Reliance on jury to sort out issues of suggestive identification. Of

course, as a general matter, we rely upon juries to find facts.          Yet,

throughout the law, we refuse to allow admission of evidence for jury

consideration. We have an elaborate set of rules of evidence that excludes,

for instance, hearsay evidence on the ground that it is unreliable. The

admission of hearsay is thought to be so damaging that it is presumed to

be prejudicial. See, e.g., Fed. R. of Evid. 802; Iowa R. of Evid. 5.802. We

further have a regulatory regime surrounding the admission of other bad

acts evidence. See, e.g., Fed. R. of Evid. 404; Iowa R. of Evid. 5.404. Again,

evidence of prior bad acts is thought to be simply too prejudicial to be

provided to a jury. Finally, we control the admission of expert testimony

in order to prevent miscarriages of justice arising from reliance on
                                           83

unreliable expert testimony. See, e.g., Fed. R. of Evid. 702; Iowa R. of Evid.

5.702. In a wide variety of contexts, then, our legal system does not simply

hand evidence to the jury without gatekeeping, and we do not on rely on

Wigmore’s “engine” of cross-examination to establish reliability of hearsay,

other bad acts evidence, or expert testimony, nor should we here. 14 As

has been shown above, cross-examination is a limited tool when a lawyer

faces a sincere but mistaken eyewitness.

       D. Application           of   Due   Process     Challenges       to    In-Court

Identifications. Prior to Perry, a majority of the circuit courts held that a

defendant could mount a Biggers/Manson due process attack on in-court

identifications. See United States v. Saunders, 501 F.3d 384, 389–90 (4th

Cir. 2007); United States v. Rattler, 475 F.3d 408, 411 (D.C. Cir. 2007);

United States v. Jones, 126 F. App’x 560, 567–69 (3d Cir. 2005); United

States v. Rogers, 126 F.3d 655, 657–59 (5th Cir. 1997); United States v.

Kime, 99 F.3d 870, 882–83 (8th Cir. 1996); United States v. Archibald, 734

F.2d 938, 940–43 (2d Cir.), as modified, 756 F.2d 223 (2d Cir. 1984). In

United States v. Domina, 784 F.2d 1361 (9th Cir. 1986), the Ninth Circuit

reviewed admission of a first-time, in-court identification for abuse of

discretion, stating an abuse of discretion would occur if “in-court

identification procedures are so ‘ “unnecessarily suggestive and conducive

to irreparable misidentification” as to amount to a denial of due process of



       14We,   of course, refer to
       Dean and legal scholar John Henry Wigmore [1863–1943], whose greatest
       contribution was the Treatise on the Anglo–American System of Evidence
       in Trials at Common Law (1904) [“Wigmore on Evidence”], famously
       described cross-examination as the “greatest legal engine ever invented for
       the discovery of truth” and “the great and permanent contribution of the
       Anglo–American system of law to improved methods of trial procedure.”
Barnaby v. Coreman, Inc., 890 N.Y.S.2d 291, 293 (Sup. Ct. 2009) (quoting 5 John Henry
Wigmore, Wigmore on Evidence § 1367, at 32 (Chadbourn rev. 1974)).
                                     84

law.’ ” Id. at 1369 (quoting United States v. Williams, 436 F.2d 1166, 1168–

69 (9th Cir. 1970)).

      After Perry, Federal courts are divided on the question of whether a

defendant may launch a due process challenge to an in-court

identification. The Fourth and Seventh Circuits have held that the Biggers

reliability test still applies to in-court identifications. See Lee v. Foster,

750 F.3d 687, 691–92 (7th Cir. 2014); United States v. Greene, 704 F.3d

298, 308 (4th Cir. 2013). On the other hand, the Tenth and Eleventh

Circuits have come to the opposite conclusion.         See United States v.

Thomas, 849 F.3d 906, 911 (10th Cir. 2017); United States v. Whatley, 719

F.3d 1206, 1214–17 (11th Cir. 2013).

      VII. State Court Developments Embracing Eyewitness Science.

      A. Role of State Courts in Development of Law. Historically,

more often than not it has been the state courts that have taken the lead

in the development of constitutional law. While cases of the United States

Supreme Court often gain the most attention, invariably the seminal cases

are based on state court developments. See William J. Brennan, Jr., State

Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489,

490–91 (1977).    While many of us attended law schools that focused

courses on constitutional law on developments in the Warren Court, it has

been the state courts that have been primarily the drivers of the

development of legal doctrine. As a result, if we are to have a vibrant legal

system, it is important that the state courts embrace their primary role in

legal development and not surrender it to an institution that, in large part

because of federalism considerations, tends to be an inert and lagging

decision-maker. States following the federal approach in lockstep with

constitutional issues stifle and inhibit the development of the law.
                                      85

      No one should be surprised that state courts play the leadership role

in the development of constitutional law in the criminal justice system.

Indeed, that is exactly what the framers of the United States Constitution

intended. At the time the United States Constitution was adopted, there

were virtually no federal crimes and it was fully expected that criminal

justice would be the primary concern of state courts. The framers would

have been comfortable with the notion that the state courts would often

take the lead in the development of law, with the United States Supreme

Court, more often than not, responding to state court developments and

not the other way around.

      B. State Court Return to Per Se Rejection of Unnecessary

Showups     Framework       of   Wade/Gilbert/Stovall        Under        State

Constitutions.

      1. Introduction.    One approach designed to limit the risk of

misidentification   in   eyewitness   testimony   is   to   return   to     the

Wade/Gilbert/Stovall approach to the issue where showups are employed.

By adopting a per se rule that unnecessarily suggestive identification

procedures are inadmissible, courts avoid a slipshod, multifactored case-

by-case approach to reliability in favor of a more certain rule for law

enforcement to follow and the courts to apply.

      2. New York. By the mid-1980s, state courts began to conform their

approach to eyewitness identification to bring it more in line with the

scientific consensus. By way of example, in People v. Adams, 423 N.E.2d

379 (N.Y. 1981), the New York court condemned a showup under the due

process clause of the New York Constitution where multiple witnesses

were presented with multiple suspects. Id. at 383–84. The Adams court

dubbed the police procedure “the ideal of suggestibility.” Id. at 383. The

Adams court rejected the grafting of a reliability test of Biggers on such
                                      86

pretrial showups and declared that under the due process clause of the

New York Constitution, the approach adopted in Stovall would control. Id.

at 383–84.

      3. Massachusetts. In Commonwealth v. Johnson, 650 N.E.2d 1257

(Mass. 1995), the Supreme Judicial Court of Massachusetts considered

the validity of a suggestive showup under article 12 of the Declaration of

Rights of the Massachusetts Constitution. Id. at 1260. The Johnson court

noted that it followed the per se rule previously set forth in the

Wade/Gilbert/Stovall trilogy in a number of cases but had not had the

opportunity to consider whether to apply the approach of Biggers/Manson.

Id.; see Commonwealth v. Botelho, 343 N.E.2d 876, 880–81 (Mass. 1976).

      The Johnson court rejected the invitation to follow Biggers/Manson

under the Massachusetts due process clause, recognizing the approach in

Manson “denies the trier reliable evidence, [and so] [the per se approach]

may result, on occasion, in the guilty going free.” Johnson, 650 N.E.2d at

1263 (quoting Manson, 432 U.S. at 112, 97 S. Ct. at 2252).            But the

Johnson court declared that the inverse is more likely true, namely, that

the admission of unnecessarily suggestive identification procedures under

the reliability test would likely result in the innocent being jailed while the

guilty go free. Id.

      Further, the Johnson court distinguished its per se exclusionary rule

for unnecessarily suggestive showups from the exclusionary rule applied

to confessions and the fruits of search and seizure. Unlike the confession

and search and seizure settings, the exclusion of suggestive identifications

is designed to enhance the reliability of trial and reduce the risk that the

wrong person will be convicted as a result of suggestive identification

procedures. Id. at 1264. According to the Johnson court, “The [Manson]

reliability test hinders, rather than aids, the fair and just administration
                                     87

of justice by permitting largely unreliable evidence to be admitted directly

on the issue of defendant’s guilt or innocence.” Id.

      The Johnson court also noted that the Manson test “does little or

nothing to discourage police from using suggestive identification

procedures.” Id. at 1263. The Johnson court noted that “[a]lmost any

suggestive lineup will still meet reliability standards” and be admitted into

evidence despite the unnecessary suggestiveness of the identification

procedure. Id. (quoting Paseltiner, Diminishing Protection, 15 Hofstra L.

Rev. at 606).

      4. Wisconsin.     The Wisconsin Supreme Court considered the

appropriate approach to showups under the due process clause of article I,

section 8 of the Wisconsin Constitution in State v. Dubose, 699 N.W.2d

582 (Wis. 2005), overruled by State v. Roberson, 935 N.W.2d 813, 816 (Wis.

2019). Prior Wisconsin caselaw had simply applied Biggers and Manson

to eyewitness identifications. See State v. Wolverton, 533 N.W.2d 167, 178

(Wis. 1995), overruled by Roberson, 935 N.W.2d at 816; Fells v. State, 223

N.W.2d 507, 513–14 (Wis. 1974), overruled by Roberson, 935 N.W.2d at

816. The defendant in DuBose asked the court to revisit its position with

regard to the application of Biggers and Manson under the Wisconsin

Constitution. Dubose, 699 N.W.2d at 591.

      The Dubose court began its analysis by recognizing that much new

information had been assembled since the court reviewed a showup

procedure in Wolverton, citing research over the past decade, including the

work of Gary Wells, that the court characterized as “impossible for us to

ignore.” Id. at 591. The Dubose court concluded that the recent studies

confirmed that eyewitness testimony is often “hopelessly unreliable,” and

that its current approach has significant flaws.       Id. at 592 (quoting

Johnson, 650 N.E.2d at 1262). In developing an independent test under
                                      88

the Wisconsin Constitution, the Dubose court returned to examine the

two-pronged test in Stovall of suggestiveness and necessity, concluding

that showups were always suggestive and that the focus of analysis should

be on the second Stovall prong of necessity.          Id. at 599.    Under the

Wisconsin due process test, the Dubose court narrowly defined necessity

to include only exigent circumstances or an inability to arrest a suspect

for lack of probable cause to prevent the police from engaging in a line up

or photo array procedure. Id. at 593–94.

      C. Modification of Biggers Reliability Framework Under State

Constitutions.

      1. Introduction.     While New York, Massachusetts, and Wisconsin

returned to a Wade/Gilbert/Stovall model for consideration of the

admissibility    of   pretrial   showup   identifications   under   their   state

constitutions, courts in Utah, New Jersey, Connecticut and other states

retained the two-step structure of Biggers/Manson, yet engaged in

substantial revision of the factors to be considered to better conform the

law to the consensus eyewitness science. A similar result was obtained

through application of local rules of evidence in Oregon and other

jurisdictions.

      2. Utah. In Utah, the evolving caselaw begins with State v. Long,

721 P.2d 483. In Long, the court considered a claim that the defendant

was entitled to an instruction cautioning the jury about the fallibility of

eyewitness identifications where such an identification was at issue. Id.

at 484, 487. In order to answer the issue, the Long court canvassed the

scientific literature and concluded that it “is replete with empirical studies

documenting the unreliability of eyewitness identification.” Id. at 488. The

court further observed that “[p]erhaps it is precisely because jurors do not
                                       89

appreciate the fallibility of eyewitness testimony that they give such

testimony great weight.” Id. at 490.

      The Long court observed that courts and lawyers tend to “ignore the

teachings of other disciplines, especially when they contradict long-

accepted legal notions.” Id. at 491. As an example, the court noted “the

lag between the assumptions embodied in the law and the findings of other

disciplines” found in Biggers.   Id.    The court noted that several of the

criteria listed in Biggers were flatly contradicted by empirical studies and

that the time had come for a more empirically sound approach. Id.

The court concluded,

      Given the great weight jurors are likely to give eyewitness
      testimony, and the deep and generally unperceived flaws in it,
      to convict a defendant on such evidence without advising the
      jury of the factors that should be considered in evaluating it
      could well deny the defendant due process of law under article
      I, section 7 of the Utah Constitution.

Id. at 492.

      The Utah Supreme Court built on Long in State v. Ramirez, 817 P.2d

774 (Utah 1991), abrogated by State v. Lujan, 459 P.3d 992, 999 (Utah

2020). In Ramirez, a defendant challenged the admission of eyewitness

showup testimony.      Id. at 776–77.       The Ramirez court noted that by

departing from the federal caselaw, it would be better able to craft a more

empirically based approach under Utah law. Id. at 780. The Ramirez court

declared that the ultimate question is whether, under the totality of

circumstances, the identification was reliable. Id. at 781. Reviewing Long,

the Ramirez court retained the first two Biggers factors and discarded the

last three (accuracy of prior description, level of certainty, and length of

time). Id. at 779. The Ramirez court then added the additional factors of

(1) “the witness’s capability to observe the event”; (2) “whether the

witness’s identification was made spontaneously and remained consistent
                                       90

thereafter, or whether it was the product of suggestion”; and (3) “the nature

of the event being observed and the likelihood that the witness would

perceive, remember and relate it correctly.” Id. (quoting Long, 721 P.2d at

493). The Ramirez court thus pruned unsound criteria in Biggers and

added science-based criteria which research showed were related to

reliability.    Under the facts presented in the case, the Ramirez court

determined that construing the facts in a fashion most favorable to the

trial court’s determination to admit the evidence, no constitutional error

was present. Id. at 784.

         3. New Jersey. In 2011, the New Jersey Supreme Court decided

Henderson, 27 A.3d 872, in which the court undertook a major review of

its approach to eyewitness identification.       In order to assist in its

deliberations, the court appointed a special master to hold hearings,

review pertinent eyewitness science and make recommendations to the

court.      Id. at 877.    The Henderson opinion begins with an explicit

declaration that the scientific evidence reviewed by the special master was

reliable.      Id.   Among other findings, the court acknowledged the

malleability of memory and the impact of many factors on the reliability of

eyewitness identification.       Id. at 878.     According to Henderson,

misidentification was generally a product of a witness’s honest yet

mistaken belief. Id. at 889.

         The Henderson court reviewed the United States Supreme Court’s

approach to eyewitness identification and found it to be inadequate,

concluding that Manson did not deter police from using suggestive

procedures and overestimated the ability of jurors to evaluate testimony

for reliability.     Id. at 918–19.   Henderson developed a framework for

admission of eyewitness evidence obtained through unnecessarily

suggestive procedures in New Jersey. Id. at 919–22. A defendant may
                                       91

trigger a pretrial hearing by showing evidence that a system variable could

have caused the identification to be suggestive. Id. at 920. The burden

shifts to the state to show that the identification is reliable. Id. If the state

succeeds, the burden shifts back to the defendant to show a “very

substantial likelihood” of incorrect identification. Id.

      4. Oregon.     A year after Henderson, the Oregon Supreme Court

considered its law of eyewitness identification in Lawson, 291 P.3d 673,

which surveyed the current eyewitness science and concluded that its

prior approach, which was similar to the Biggers test, was no longer

adequate. Id. at 677. The Lawson court replaced its prior approach with

a regime based upon the Oregon Evidence Code (OEC).               Id.   The new

framework adjudged that eyewitness identification must be based on

personal knowledge, and must be rationally based and “helpful to the trier

of fact” under Oregon Evidence Code 602 and 701, respectively. Id. at

692–94. If these tests are met, the identification is admissible unless the

defendant can show that the evidence is substantially more prejudicial

than probative under Oregon Evidence Code 403. Id. at 694. The Lawson

court listed a number of variables that could be considered by courts in

making the determination as to whether to admit evidence, but the Lawson

court gave trial courts broad discretion in determining whether to admit

the eyewitness evidence. Id. at 694–97.

      5. Alaska. In 2009, the Alaska Court of Appeals highlighted the

weakness in the way courts evaluated the reliability of eyewitness

testimony under Manson.         Tegoseak v. State, 221 P.3d 345, 350–63

(Alaska Ct. App. 2009). The Alaska Supreme Court then considered in

2016 the continued vitality of the Biggers/Manson approach under the due

process clause of the Alaska Constitution in Young, 374 P.3d 395.
                                      92

       The Young court determined that any eyewitness identification error

that might have occurred in the case was harmless.                Id. at 409–10.

Nonetheless, while the court stated it generally refrained from issuing

advisory opinions, it at times set aside the policy of self-restraint to correct

or clarify important aspects of the law. Id. at 412–13. The Young court

proceeded to reevaluate the Biggers/Manson framework.

       The Young court determined that it was time to abandon the

Biggers/Manson framework for a science-based approach, emphasizing

the explosion of eyewitness science after the 1970s. Id. at 414. The Young

court noted that it had adopted the Biggers/Manson framework of

reliability without reference to whether its assumptions were scientifically

valid. Id. at 415. The legal landscape, however, according to the Young

court, had changed. Id. The Young court noted that a primary goal of the

criminal justice system was “to protect the innocent accused against an

erroneous conviction.” Id. at 416 (quoting Shaw v. State, 861 P.2d 566,

570 (Alaska 1993)).

       The court concluded that the five Biggers factors did not consider

many    of   the   factors   known   to    impact   reliability   of   eyewitness

identifications.   Id. at 425.   Further, the court noted that three of the

Biggers factors rely on the witness’s own subjective perceptions, and

therefore the court questioned the reliability of witness confidence in light

of the eyewitness science. Id. at 426. According to the Young court,

       [b]ecause the [Manson] test assesses reliability only after the
       defendant has shown that the procedure was unnecessarily
       suggestive, the test could have the perverse effect of making it
       more likely an improperly suggestive procedure will be found
       reliable and admissible, because the suggestiveness itself has
       made a witness more certain.

Id.
                                      93

       6. Connecticut.   As in Utah, the evolution of law in Connecticut

began with a case which considered a relatively narrow issue. In Guilbert,

49 A.3d 705, the defendant challenged his conviction based on the refusal

of the trial court to allow the admission of expert testimony on the fallibility

of eyewitness identification testimony.       Id. at 712.   Prior Connecticut

caselaw held that such testimony would invade the province of the jury.

Id.; see, e.g., State v. McClendon, 730 A.2d 1107, 1114–15 (Conn. 1999),

overruled by Guilbert, 49 A.3d at 712; State v. Kemp, 507 A.2d 1387, 1389

(Conn. 1986), overruled by Guilbert, 49 A.3d at 712.

       The Guilbert court, however, determined that the time had come to

overrule prior precedent prohibiting expert eyewitness testimony. Id. at

712.      Noting    widespread     judicial   recognition    that   eyewitness

identifications were potentially unreliable in a variety of ways unknown to

the average juror, the court found that the broad based judicial recognition

tracked a “near perfect scientific consensus.” Id. at 721. Among other

things, the Guilbert court provided a nonexhaustive list of concepts that

courts across the country now accepted:

       (1) there is at best a weak correlation between a witness’
       confidence and his or her identification and its accuracy, (2)
       the reliability of an identification can be diminished by a
       witness’ focus on a weapon, (3) high stress at the time of
       observation may render a witness less able to retain an
       accurate perception and memory of the observed events, (4)
       cross-racial identifications are considerably less accurate
       than same race identifications, (5) a person’s memory
       diminishes rapidly over a period of hours rather than days or
       weeks, (6) identifications are likely to be less reliable in the
       absence of a double-blind, sequential identification
       procedure, (7) witnesses are prone to develop unwarranted
       confidence in their identifications if they are privy to postevent
       or postidentification information about the event or the
       identification, and (8) the accuracy of an eyewitness
       identification may be undermined by unconscious
       transference, which occurs when a person seen in one context
       is confused with a person seen in another.
                                     94

Id. at 721–23 (footnotes omitted). The Guilbert court determined that while

these findings were widely accepted by scientists, they were largely

unfamiliar to the average person and that, in fact, many of the findings

were counterintuitive. Id. at 723.

       The Guilbert court considered whether cross-examination was

adequate to identify the weakness of eyewitness testimony, and ultimately

concluded that it was not for several reasons. Most importantly, cross-

examination is far better at exposing lies than sincere but mistaken beliefs.

Id. at 725.   Cross-examination also cannot effectively educate the jury

about the importance of factors affecting eyewitness identification. Id. at

726.

       The Guilbert court also considered the curative efficacy of jury

instructions, determining that jury instructions in broad terms are

ineffective compared with expert testimony. Id. at 726–27. Further, jury

instructions generally come at the end of trial, when jurors are likely to

have formed opinions on the witness testimony and are likely to be fatigued

after a long trial. Id. For the above reasons, the Guilbert court reversed

its prior precedent and held it was error for the district court to refuse to

allow admission of eyewitness testimony. Id. at 735–38.

       Guilbert foreshadowed the later case of State v. Harris, 191 A.3d 119

(Conn. 2018).    Harris reversed course from an earlier case, State v.

Ledbetter, 441 A.2d 595 (Conn. 1981), where the Connecticut Supreme

Court rejected a request to depart from Biggers under the Connecticut

Constitution. In Harris, the defendant challenged under both the State

and Federal Constitutions a pretrial identification that occurred at his

arraignment and a subsequent in-court identification. Harris, 191 A.3d at

122–23. The Harris court first determined that the original identification

was unnecessarily suggestive as only nine of the persons being arraigned
                                     95

were African-American and there were marked dissimilarities between

each of those and the witness’s original description of the culprit. Id. at

127–30.     The court then examined whether the product of the

unnecessarily suggestive procedure was nonetheless reliable. Id. at 130.

Applying the five Biggers factors, the court determined that the

identification was sufficiently reliable under the Federal Constitution. Id.

at 132.

      The Harris court then turned to consider whether to adopt a different

approach under article first, section 8 of the Connecticut Constitution,

noting that in Guilbert, it adopted a framework for analyzing eyewitness

identification claims different than Biggers. Id. at 136. The court found

that the Guilbert approach was preferable as, among other things, it

provided greater specificity on the value of confidence statements and

included factors not recognized in Biggers, including weapon focus, level

of stress at the time of observation, cross-racial misidentification,

postevent exposure to information, and potential for unconscious

transference. Id. at 136–37.

      In support of its independent state constitutional approach, the

Harris opinion cited courts in Alaska, Kansas, Massachusetts, New Jersey,

New York, Utah, and Wisconsin that have held that the Biggers

formulation insufficiently protected against the risks of misidentification.

Id. at 142. Further, the opinion noted that courts in Georgia and Oregon

came to the same conclusion as a matter of evidence law. Id. The Harris

court asserted that only two states, Idaho and New Hampshire, had

explicitly adopted Biggers, but the courts in these states did not engage in

any analysis of independent scientific developments that have exposed the

deficiencies of the Biggers reliability test. Id.; see State v. Buti, 964 P.2d
                                          96

660, 665–66 (Idaho 1998); State v. Leclair, 385 A.2d 831, 833–34 (N.H.

1978).

       Harris proceeded to develop a procedural framework to consider

eyewitness identification challenges under the Connecticut Constitution,

finding that a defendant may trigger a pretrial hearing by presenting “some

evidence that a system variable undermined the reliability of the

eyewitness identification.”       Harris, 191 A.3d at 143. The burden then

shifts to the prosecution to show that the identification was reasonable,

taking into account all estimator and system variables.                    Id.   If the

prosecution meets its burden, the burden shifts back to the defendant to

show “very substantial likelihood of misidentification” in order for the

evidence to be excluded. Id. In establishing criteria for making a reliability

determination, Harris relied on Guilbert, 49 A.3d at 731–32, where the

court identified eight factors about which eyewitness experts could testify.

Harris, 191 A.3d at 144. In addition to a motion to suppress, a defendant

could also seek to admit expert testimony and obtain instructions on the

fallibility of eyewitness identification evidence. Id. at 144–45. 15

       D. Post-Perry State Court Application of Eyewitness Science to

First-Time, In-Court Identifications.
       1. Introduction. After Perry, there has been a question as to whether

due process protections apply at all with respect to in-court identifications

where there has been no suggestive pretrial identification.                   There is

recognition in both state and federal courts that the Perry Court did not

expressly decide the issue. See State v. Dickson, 141 A.3d 810, 821 (Conn.


       15A number of other state courts have departed from Biggers. See, e.g., State v.
Almaraz, 301 P.3d 242, 252–53 (Idaho 2013) (adding onto Biggers factors arising from
system and estimator variables established by eyewitness science); State v. Hunt, 69 P.3d
571, 576 (Kan. 2003) (adopting expanded science-based factors beyond Biggers); State v.
Discola, 184 A.3d 1177, 1188 (Vt. 2018) (abandoning witness certainty as a factor).
                                       97

2016) (“The United States Supreme Court has not yet addressed the

question of whether first-time in-court identifications are in the category

of   unnecessarily   suggestive    procedures    that   trigger   due   process

protections.”); Galloway v. State, 122 So. 3d 614, 663 (Miss. 2013) (“The

United States Supreme Court has not decided whether Biggers applies to

an in-court identification not preceded by an impermissibly suggestive

pretrial identification.”). As noted above, the post-Perry federal courts are

divided on this question. The question has also arisen in a number of

state courts, which are similarly divided on whether judicial prescreening

for reliability applies in the context of a first-time, in-court identification.

       2. Massachusetts.     In Commonwealth v. Crayton, 21 N.E.3d 157

(Mass. 2014), the Massachusetts Supreme Court considered the question

of admissibility of first-time, in-court identifications under the due process

clause of article 12 of the Massachusetts Declaration of Rights. Id. at 161,

164.   The Crayton court reviewed Massachusetts caselaw noting that

showups were disfavored because they were highly suggestive. Id. at 165.

Explicitly in Commonwealth v. Johnson, 650 N.E.2d 1257, 1261 (Mass.

1995), the Supreme Judicial Court of Massachusetts ruled that

unnecessarily suggestive showups were subject to a per se rule of

exclusion, and that the Massachusetts Constitution “requires the

application of [a] stricter per se approach.”

       The Crayton court emphasized that in-court identification of the

defendant is also highly suggestive. Crayton, 21 N.E.3d at 166. Indeed,

the Crayton court noted that in-court identification may be even more

suggestive a showup as the presence in the courtroom is likely to be

understood as a confirmation that the prosecutor believes that the

defendant committed the crime. Id. (citing Evan J. Mandery, Due Process
                                       98

Considerations of In-Court Identifications, 60 Alb. L. Rev. 389, 415–16

(1997)).

        The   Crayton     court   considered   ways   in   which   an   in-court

identification differs from showups.        While a jury is able to see the

identification process and may be better able to assess the confidence level

of the witness, the court did not believe those features lead to more reliable

assessments of eyewitnesses. Id. at 168. The court noted that “[s]ocial

science research has shown that a witness’s level of confidence in an

identification is not a reliable predictor of the accuracy of the identification,

especially where the level of confidence is inflated by its suggestiveness.”

Id.    Further, the court recognized that a witness is subject to cross-

examination when an in-court identification is made, but the court was

not persuaded that the immediacy of cross-examination outweighed the

suggestiveness of the lineup.       Id. Third, the Crayton court noted that

where the prosecutor provides defense counsel with advance warning,

there is an opportunity to arrange for less suggestive identification. Id. at

169.    The court concluded that the proper approach was to place the

burden on the prosecution to move in limine for an in-court identification

and to develop alternatives to a suggestive process. Id. at 170–71. Under

the facts of the case, however, the Crayton court concluded that the in-

court identification was unreliable and vacated the defendant’s conviction.

Id. at 179.

        3. Connecticut.    The Connecticut Supreme Court considered the

admissibility of first-time, in-court identifications in Dickson, 141 A.3d

810. In Dickson, a witness who could not identify the defendant in a photo

array made an in-court identification of the defendant who was one of only

two African-Americans in the courtroom and was seated at counsel table.

Id. at 823.      The court deemed any claim under the Connecticut
                                    99

Constitution   waived   and   considered   only   whether    the   in-court

identification violated the Fifth and Fourteenth Amendments of the United

States Constitution. Id. at 818–19. The Dickson court noted that whether

in-court identification was subject to due process attack was an open

question under Perry, stating that the question in Perry was whether an

identification that was the result of suggestive private conduct triggered

due process protection. Id. at 827–28.

      The court determined in Dickson that an in-court identification was

unduly suggestive and subject to due process protection under the United

States Constitution under several theories.        First, if the in-court

identification in this case was not suggestive, there would be no procedure

that was suggestive. Id. at 822–23. Second, the in-court identification

procedure amounted to a vouching of the witness by the government. Id.

Third, the Dickson court emphasized that misidentifications were a

significant cause of wrongful convictions. Id. at 823–24. Fourth, state

action subject to due process occurs when a prosecutor elicits an in-court

identification from a witness. Id. at 824. Fifth, the court found that the

purpose of excluding suggestive identifications under the United States

Constitution, deterrence, applied equally to prosecutors as to law

enforcement officers. Id.

      The Dickson court rejected the view that a jury could effectively

evaluate in-court identifications, finding that because of its inherently

suggestive nature, a witness is far less likely to be hesitant or uncertain

when making a suggestive in-court identification. Id. at 832. The court

also found that curatives like cross-examination are inadequate, citing its

previous decision in Guilbert for the proposition that “cross-examination

is far better at exposing lies than at countering sincere but mistaken

beliefs.” Id. at 832 (quoting Guilbert, 49 A.3d at 725). While the Dickson
                                     100

court recognized contrary authority, it concluded that “the arc of logic

trumps the weight of authority,” finding “no reason to distinguish

inherently suggestive in-court identifications from inherently suggestive

out-of-court   identifications.”    Id.    at   827.     Notwithstanding     its

determination that the highly suggestive in-court identification violated

due process, the Dickson court concluded, based upon the evidence of the

case, that the error was harmless under the facts as presented. Id. at 844.

      4. Montana. In 2016, the Montana Supreme Court updated their

approach to in-court eyewitness identification in City of Billings v. Nolan,

383 P.3d 219 (Mont. 2016). This case began with a road rage incident, in

which the eyewitnesses were being threatened by an individual driving a

car erratically, screaming, and honking at them. Id. at 221–22. Not only

was this a high-stress situation, with the individuals driving defensively

between fifty and seventy miles per hour, but this also involved cross-

racial identification between the witnesses and alleged aggressor. Id. An

officer observed a driver in a car matching the description from dispatch

of the aggressor somewhat proximate to the incident. Id. at 222. The

officer was “confident of his identification [of the defendant] based on his

own observations” and did not ask the eyewitnesses to do a photo lineup.

Id.

      At trial, the defendant objected to a first-time, in-court identification

as he was “the only black male in the courtroom and . . . seated next to

defense counsel at the table for the defendant.” Id. The judge responded,

“[T]here’s nothing I can do about it. What do you want me to do? Get three

more defendants in here . . . that are black?” Id. The Montana Supreme

Court on appeal found that due process rights under the U.S. Constitution

barred   admission    of   impermissibly    suggestive    first-time,   in-court

identification, adopting a two-prong Biggers substantial likelihood of
                                     101

irreparable misidentification and unreliability standard. Id. at 224. In

this case, the court found that the first-time, in-court identification was

impermissibly suggestive, but that the identification by the eyewitness was

nonetheless reliable. Id. at 224–25.

      5. Alaska. As indicated above, the Alaska Supreme Court revisited

its approach to eyewitness testimony under the due process clause of the

Alaska Constitution in Young, 374 P.3d 395. Yet, the Young court held

that due process protections do not extend to first-time, in-court

identifications.   Id. at 411–12.   The Young court noted that the jurors

observe the circumstances of the identification and expert witnesses may

testify about the problems of first-time, in-court identifications. Id. The

court also noted that a trial court could grant a request for an in-court

lineup or a request that the defendant be seated elsewhere than at counsel

table. Id.

      6. Colorado. The Colorado Supreme Court considered whether in-

court identification was subject to due process protection in Garner v.

People, 436 P.3d 1107 (Colo. 2019), cert. denied 140 S. Ct. 448 (2019). The

opinion does not state whether the claim is made under the due process

clause of the State or Federal Constitution. The opinion itself, however,

focuses on the federal caselaw related to eyewitness identification. Id. at

1110. The Garner court concluded that the reasoning utilized by the U.S.

Supreme Court in Perry, namely, that in-court identification involves no

improper law enforcement action, that judicial prescreening of reliability

was not required in all cases, and that ordinary safeguards of the trial are

sufficient, apply in all cases involving in-court identification. Id. at 1117.
                                        102

      E. Iowa’s       Approach     to    Due   Process    Under   the    Iowa

Constitution.

      1. Due process clause under the Iowa Constitution. Article I, section

9 of the Iowa Constitution provides that “no person shall be deprived of

life, liberty, or property, without due process of law.” Iowa Const. art. I,

§ 9. Although the language is similar to the Due Process Clause of the

United States Constitution, we may construe the provision in a different

fashion than federal precedent. See, e.g., State v. Pals, 805 N.W.2d 767,

771 (Iowa 2011) (“While these [Iowa and United States Constitutional]

provisions use nearly identical language and were generally designed with

the same scope, import, and purpose, we jealously protect this court's

authority   to     follow   an   independent   approach   under   our    state

constitution.”).     Indeed, at the Iowa constitutional convention, floor

debates show derision for the due process decisions of the United States

Supreme Court to fugitive slaves. For example, the fugitive slave decisions

were decried at the Iowa constitutional convention in 1857. According to

George Ells, the Due Process Clause was “violated again and again by the

dominant party in the land, which rides rough-shod over the necks of

freemen.” 1 The Debates of the Constitutional Convention of the State of

Iowa 102 (W. Blair Lord rep., 1857), https://www.statelibraryofiowa.org/

services/collections/law-library/iaconst. Ells further opined that

      [i]f the words “due process of law,” shall in time be recognized
      by our judicial tribunals to mean what they really do mean,
      . . . [t]hen, sir, that infamous Fugitive Slave Law will become
      a nullity, and the American people will trample its odious
      enactments in the dust.

Id.

      We have considered challenges to convictions based upon the

admission of eyewitness identification in a number of cases. Some cases
                                    103

involve due process challenges brought under the United States

Constitution.   See State v. Whetstine, 315 N.W.2d 758, 764–65 (Iowa

1982); State v. Mark, 286 N.W.2d 396, 405 (Iowa 1979). In other cases,

the opinions do not indicate whether the challenge is brought under the

State or Federal Constitution. See State v. Webb, 516 N.W.2d 824, 829–

30 (Iowa 1994). In one case, the defendant cited article I, section 9 of the

Iowa Constitution, but did not suggest a different analytical framework.

State v. Taft, 506 N.W.2d 757, 762–63 (Iowa 1993). Where citations to the

Iowa Constitution are mere constitutional hitchhikers, or where the

parties do not indicate whether the case is brought under the State or

Federal Constitution, we ordinarily apply the established federal

framework but reserve the right to apply the framework in a fashion

different than the federal courts. State v. Baldon, 829 N.W.2d 785, 822–

23 (Iowa 2013). The important point, however, is that we have not had an

occasion where a party has asked us to depart from the established federal

eyewitness identification due process framework. The issues before us

today are questions of first impression.

      2. Iowa due process framework embraced in State v. Cox.            We

considered a due process challenge to the admission of evidence under

article I, section 9 of the Iowa Constitution in State v. Cox, 781 N.W.2d 757

(Iowa 2010). In Cox, the defendant was charged with sexual abuse of a

younger cousin.    Id. at 759.    The state introduced evidence that the

defendant had sexually abused two other cousins. Id. The question posed

in the case was whether the introduction of the crimes allegedly committed

by the defendant against others violated due process under the Iowa

Constitution. Id. at 761.
                                    104

      We noted that under Iowa Rule of Evidence 5.404(b), evidence of

other crimes or wrongs is generally not admissible to show that a person

acted in conformity with them. Id. at 760. The rule

      is founded not on a belief that the evidence is irrelevant, but
      on a fear that juries will tend to give it excessive weight, and
      on a fundamental sense that no one should be convicted of a
      crime based on his or her previous misdeeds.

Id. (quoting State v. Sullivan, 679 N.W.2d 19, 24 (Iowa 2004)). While the

prior crimes seemed excludable under rule 5.404(b), the legislature

enacted a statute that appeared to override the rule and allow for

admissibility of prior crimes in sex abuse cases. See Iowa Code § 701.11

(2007).   The question thus became whether Iowa Code section 701.11

could be constitutionally applied in the case at hand.

      In Cox, we held that the statute could not be constitutionally applied

against Cox and that the evidence of his other crimes was inadmissible

under the due process clause of the Iowa Constitution. Id. at 768–72. We

did so “[b]ased on Iowa’s history and the legal reasoning for prohibiting

admission of propensity evidence out of fundamental conceptions of

fairness.” Id. at 768. In precedent caselaw we found that “it would be

extremely difficult for jurors to put out of their minds knowledge [of past

crimes] and not allow this information to consciously or subconsciously

influence their decision.” Id. at 769 (quoting State v. Reynolds, 765 N.W.2d

283, 292 (Iowa 2009), overruled on other grounds by Alcala v. Marriott Int’l,

Inc., 880 N.W.2d 699, 708 & n.3 (Iowa 2016)).

      Several propositions were embraced in Cox.            First, the Iowa

Constitution could be construed to provide more due process protection

than its federal counterpart. Id. at 761. Second, a due process claim could

arise under the due process clause of the Iowa Constitution that would

exclude evidence from trial based on fundamental fairness. Id. at 767–68.
                                    105

Third, some types of evidence, such as prior bad acts evidence, is so

troubling that it should not go to the jury. Id. at 769–70. Fourth, although

not stated expressly in the opinion, by their notable omission as curatives

it is implied that cross-examination and jury instructions would not

remedy the constitutional error. Fifth, the evidence is this case was not

police generated, but the only state action was to offer the evidence at trial

as part of the prosecution’s case. Sixth, there is no mention of deterrence

in this due process case, only fundamental fairness.        As is apparent,

although it does not deal with eyewitness identification, Cox runs dead

against the due process approach of Perry requiring police orchestration,

relying on trial processes, emphasizing the function of the jury, and

focusing on deterrence rather than fundamental fairness in its due process

analysis.

      VIII. Iowa Due Process Analysis of In-Court Identification in
this Case.

      A. Introduction.      There are two general approaches to the

identification issues in this case. First, we could lockstep Iowa law with

federal precedent, embrace Biggers and Perry notwithstanding the

consensus eyewitness science, and decline to think about it any further.

In short, we function as if we were a municipal federal criminal claims

court and consign the Iowa Constitution on long-term loan to the Iowa

Historical Museum.

      If we take this course, however, we must consider the question open

under Perry as to whether the in-court identification in this case remains

subject to a challenge under Biggers.       If so, we must then apply the

antiquated Biggers factors, recognizing that a delay of identification of

seven months in Biggers is construed as a very serious factor against

reliability. Indeed, because the eyewitness identification in the case before
                                     106

us is so suggestive and so unreliable even under the Biggers factors, there

is strong possibility that due process would require exclusion of Brkovic’s

in-court identification even under current federal law.

      A second approach is to recognize the consensus eyewitness science

and develop a science-based approach to eyewitness evidence under the

due process clause of the Iowa Constitution.         There are at least two

potential approaches here. First, we could adopt a per se approach to in-

court identifications similar to that      adopted by the            New York,

Massachusetts,     and    Wisconsin    Supreme       Courts        for      showup

identifications. Second, we could evaluate the admission of an in-court

eyewitness identification under a modified Biggers approach that

eliminates scientifically unsound factors and adds estimator and system

variables to the due process test.

      B. Rejection of Federal Approach. Historically, the United States

Supreme Court often lags behind legal developments in the states. As we

have seen, eyewitness identification doctrine is no exception.                  The

developments in eyewitness science, however, make adherence to the

established federal approach untenable.      Continued use of the federal

framework will simply perpetuate a system of criminal justice where highly

unreliable eyewitness identifications convict innocent persons.                 The

Biggers factors are demonstrably flawed by their inclusion of irrelevant

factors, the impact of improper suggestiveness on reliability factors, and

the exclusion of important estimator and system variables that impact the

likelihood of accurate eyewitness identifications.

      The Perry approach is unpersuasive on many levels.                 First, it is

simply not true that due process claims related to the introduction of

eyewitness   evidence    have   been   based    primarily     in     deterrence.

Fundamental fairness and reliability are the principles underlying due
                                    107

process and, as suggested in Manson, “the reliability is the linchpin.”

Mason, 432 U.S. at 114, 97 S. Ct. at 2253.         Further, nothing in the

prescience Biggers factors meaningfully deters unreliable testimony. The

notion of an unduly suggestive but reliable identification is hard to grasp,

particular when the more suggestive the identification process, the more

likely a witness will demonstrate the presence of Biggers factors that

establish “reliability.”

      A per se approach that declares that in-court identifications are not

subject to due process screening is hard to fathom. The suggestiveness of

an in-court identification is of the highest order and yet, an in-court

identification often powerfully affects juries and may make the difference

between conviction and acquittal.

      On the state action issue, Perry is wrong. A state orchestrated, first-

time in-court identification crashes full speed into the reliability

parameters previously embraced by the courts and are currently capable

of being informed by eyewitness science. In In re Winship, 397 U.S. 358,

90 S. Ct. 1068 (1970), no one asked whether state action was involved in

the due process challenge to a criminal conviction not based upon

substantial evidence. In Napue v. Illinois, 360 U.S. 264, 269–70, 79 S. Ct.

1173, 1177 (1959), the Supreme Court held that a due process violation

arose when a prosecutor introduced false evidence. In re Winship and

Napue teach that prosecutorial actions are state actions for purposes of

due process.

      Further, our decision in Cox cuts dead against Perry. In Cox, the

state sought to admit evidence of prior sexual misconduct. 781 N.W.2d at

759. The state’s effort to introduce evidence was sufficient state action in

Cox to give rise to a due process claim under article I, section 9 of the Iowa

Constitution. Id. at 761–62.
                                    108

      Further, the approach in Perry is also an invitation to abuse. For

example, a witness incapable of making an identification in a lineup of an

African-American defendant may walk into a courtroom and identify the

defendant, the only African-American present, as the culprit without

judicial intervention. See Perry, 565 U.S. at 236–48, 132 S. Ct. at 723–30.

A prosecutor who knows that this witness may not be able to make an

identification from a nonsuggestive identification process can simply bring

the witness into the highly suggestive courtroom, where the likelihood of

identification of the defendant is dramatically higher than in a

nonsuggestive procedure. Where the state has a doubtful eyewitness, it is

better off avoiding a disciplined nonsuggestive identification procedure

and simply presenting the witness in court for highly suggestive,

unreliable in-court identification. Indeed, all of the law that has been

constructed to control the reliability of pretrial identification can be

unilaterally dismantled by simply avoiding a pretrial identification process.

Further, the notion that first-time in-court eyewitness identifications can

be defended by effective cross-examination is wholly unmoored from

reality. While cross-examination can be an effective tool to expose liars, it

is completely ineffective for persons who honestly, but mistakenly, believe

in the accuracy of their testimony. As every trial lawyer knows, a frontal

attack in cross-examination of an eyewitness who honestly believes his

testimony is often counterproductive. Those who have tried such a frontal

attack on sincere witnesses generally regret it.

      There are potential remedies other than exclusion. For example, a

defendant may call an expert witness to explain the developments of

eyewitness science and may seek a jury instruction tailored to it. But the

research indicates that jurors are simply not sufficiently sensitive to the

nuances of eyewitness identification. If we exclude evidence of prior bad
                                     109

acts from a jury because of their potentially prejudicial effect, or exclude

highly relevant hearsay, or exclude bad science through a mechanism of

judicial prescreening, we should be able to do the same for in-court

identification where there is strong likelihood of unreliability.

      C. Proper Approach to In-Court Identifications Under the Due

Process Clause of the Iowa Constitution. Having rejected the view that

first-time, in-court identifications are not outside due process protections,

the question is what approach to take under article I, section 8 of the Iowa

Constitution.

      On the one hand, we could adopt the per se approach generally

applied in New York, Massachusetts, and Wisconsin and specifically

applicable with regard to in-court testimony in Crayton and Dickson. If we

did so, reversal would clearly be required in this case.       There was no

necessity of the in-court identification in this case, and it was obviously

highly suggestive.

      The advantage of the per se approach is that it tends to avoid ad hoc

judgments on reliability that provide trial courts with little guidance and

produce inconsistent results. It would require law enforcement seeking to

introduce eyewitness testimony in-court in most cases to engage in a

nonsuggestive, science based pretrial identification procedure.      To the

extent deterrence is a goal, as claimed by Perry, the per se rule would be

very effective, and it would promote fundamental fairness in the

development of what is often highly unreliable but persuasive testimony.

On the other hand, we could adopt a multifactored reliability test that

drops or modifies scientifically unsupportable criteria in Biggers and

replaces them with factors identified by the eyewitness science.         The

advantage of such an approach is its flexibility. The disadvantage is that
                                     110

it would require ad hoc judgments by district courts. Disagreements over

application of ad hoc multifactored test permeate Biggers and Manson.

      The wisest path forward is to adopt a per se approach like that in

Crayton and Dickson.      First-time, in-court identifications would not be

admissible absent a prior identification made through a nonsuggestive

process. If the witness failed pretrial to identify the suspect, “[t]he state is

not entitled to conduct an unfair procedure merely because a fair

procedure failed to produce the desired result.” Dickson, 141 A.3d at 830.

The prosecution has the burden of showing a proper pretrial identification

occurred. Id. at 825–26.

      In the alternative, if we were to adopt a science-based modification

of the Biggers test, the eyewitness identification in this case would be

excluded. The event happened under poor illumination. The witness had

a short period of time to observe the perpetrator, the perpetrator was

wearing a hat, the perpetrator had a gun, and whatever observation of the

perpetrator was made by the eyewitness was made during a time of great

stress.   Shortly after the event, the eyewitness could not provide a

meaningful description of the defendant. All of these factors weigh heavily

against reliable identification contemporaneously in this case, let alone at

a later date. Then, two years later, in a remarkable turn of events, the

eyewitness makes an in-court identification of the defendant, whom he

could not describe a few hours after the event. In my mind, such an

identification, given what we know about eyewitness science, has “a very

substantial likelihood of irreparable misidentification.” Biggers, 409 U.S.

at 198, 93 S. Ct. at 381 (quoting Simon, 390 U.S. at 384, 88 S. Ct. at 971).

      IX. Ineffective Assistance of Counsel.

      In this case, Doolin’s counsel did not seek suppression of the in-

court identification. As a result, we can reach the merits of this case only
                                    111

if his failure to seek suppression amounts to ineffective assistance of

counsel. The parties agree that the proper test of ineffective assistance in

this case is provided in Strickland v. Washington, 466 U.S. 668, 687, 104

S. Ct. 2052, 2064 (1984), finding “[a]s all the Federal Courts of Appeals

have now held, the proper standard for attorney performance is that of

reasonably effective assistance.”

      The first prong of Strickland requires an examination of whether

Doolin’s counsel fell below the level of competence expected of Iowa

attorneys.     The majority properly states that in order to establish a

violation of the first Strickland prong, a defendant must show that his

counsel failed to pursue “a claim ‘worth making.’ ” State v. Halverson, 857

N.W.2d 632, 634 (Iowa 2015); see State v. Graves, 668 N.W.2d 860, 882

(Iowa 2003).

      A reasonably competent lawyer should have been aware of the legal

issues surrounding eyewitness development.          The science has been

around for decades. More than a decade ago in State v. Folkerts, 703

N.W.2d 761, 765 (Iowa 2005), we were highly critical of what amounted to

a one person showup at a defendant’s criminal deposition. In that case,

we noted that litigating an in-court identification that was “so clearly

suggestive as to be impermissible” was “a waste of judicial resources and

time” and that counsel should “avoid[] a situation that will likely create an

impermissibly suggestive procedure and result in an inadmissible

identification.” Id.

      Further, in Folkerts we cited the work of Gary Wells that summarized

developments in eyewitness science. Id. (citing Gary L. Wells, Eyewitness

Identification Evidence: Science and Reform, 29 Champion 12 (2005)). A

computerized search of authorities citing Folkerts would reveal a 2009

student note in the Drake Law Review provided a summary of the issues
                                    112

surrounding eyewitness identification and urged a change in Iowa law.

Erica A. Nichols, Note, The Dangers of Eyewitness Identifications and the

Need for Change in Iowa, 57 Drake L. Rev. 985, 995–98, 1004 (2009). A

computer search of the catalogue of the Drake Law Library would have

revealed troves of comprehensive secondary sources on eyewitness

identification, including the work of Gary L. Wells and Elizabeth Loftus.

      On top of these Iowa developments, the issue of eyewitness

identification has been among the most visible issues nationally.

Henderson and Lawson were indicators of fermentation in the issue in

state courts, and Perry indicated the question of eyewitness identifications

remained a very important part of the national legal dialogue.

      Under Iowa Rules of Professional Conduct 32:1.1 and 32:1.3, Iowa

attorneys must act with reasonable diligence and reasonable competence

in handling matters for their clients. And indeed, part of a lawyer’s duty

of reasonable competence is maintaining competence through “keep[ing]

abreast of changes in the law and its practice, including . . . relevant

technology . . . [and] continuing study and education . . . .” Iowa R. of

Prof’l Conduct 32:1.1 cmt. [8]. As I see it, ignorance of caselaw, legal

trends, and changing science generally violates these professional

obligations of attorneys.      Under these circumstances, reasonably

competent counsel should have known that a challenge to the admission

of the in-court identification in this case was a claim worth making.

      The second prong of the Strickland test is prejudice. Strickland, 466

U.S. at 694–95, 104 S. Ct. at 2068.       Under our approach, it is not

necessary that the defendant show it more likely than not that conviction

would not have resulted, but only that the alleged legal error undermines

our confidence in the verdict. State v. Clay, 824 N.W.2d 488, 496 (Iowa

2012).
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       The State does not argue that the prejudice prong has not been met

in this case. That showed good sense. In this case, there was no other

eyewitness identification. The evidence showed that Doolin was under

arrest at about 1:10 a.m., but Brkovic’s friend testified that the incident

happened ten or fifteen minutes before police returned to Flirts for a

second time that evening at 2:40 p.m.               At the time the alleged crime

occurred, according to Brkovic’s friend, Doolin was in jail. If the crime

actually occurred at 1:10 a.m., why didn’t Brkovic report the matter to the

police who had arrived at the scene? It is true that Doolin was arrested in

the parking lot of Flirts, where he dropped a gun under a car, but the

evidence showed there were other persons carrying weapons that night at

Flirts. The many inconsistencies in this case are obvious, and therefore

the second prong of Strickland has plainly been met. 16




       16In light of my resolution of the due process issue, I do not consider the question

of whether counsel was ineffective for failure to request an eyewitness instruction. The
case for science-based, Henderson-type instructions is well established. See Fiona
Leverick, Jury Instructions on Eyewitness Identification Evidence: A Re-Evaluation, 49
Creighton L. Rev. 555, 561–65 (2016). Conversely, there is authority for the position that
generalized, nonscience-based eyewitness instructions are not effective with juries. See
Guilbert, 49 A.3d at 725. There is also caselaw that finds both a breach of duty and
prejudice where counsel fails to request a science-based jury instruction. See State v.
Maestas, 984 P.2d 376, 381 (Utah 1999).
        In addition, some cases see a relationship between the need for a science-based
instruction and whether the defendant called an expert witness to explain the consensus
science behind eyewitness identification. In United States v. Wiley, 545 F. App’x 598, 599
(9th Cir. 2013) (en banc), the Ninth Circuit noted that expert testimony is not necessary
when the court gives a science-based eyewitness instruction. Conversely, in State v.
Clopten, 362 P.3d 1216, 1228 (Utah 2015), the Utah Supreme Court noted that if an
expert does testify regarding eyewitness science, the giving of a science-based instruction
is discretionary. In this case, the problem is double barreled: counsel did not present
expert eyewitness testimony and did not seek a science-based instruction. See State v.
Clay, 824 N.W.2d 488, 500 (Iowa 2012) (discussing the concept of cumulative error).
Under the majority’s disposition, the question of whether the failure to call either an
expert witness or seek a science-based instruction amounted to ineffective assistance of
counsel is left unresolved and preserved for postconviction relief.
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      X. Conclusion.

      William Blackstone wrote that “the law holds that it is better that

ten guilty persons escape than that one innocent suffer.”         4 William

Blackstone, Commentaries on the Laws of England 352 (1st ed. 1723–1780),

available    at     http://avalon.law.yale.edu/18th_century/blackstone_

bk4ch27.asp. The majority insults Blackstone, taking the position that if

highly suggestive in-court identifications are not admitted, the guilty will

go free. But, as noted by the Supreme Judicial Court of Massachusetts,

“[t]he inverse of this is probably more accurate: the admission of

unnecessarily suggestive identification procedures under the reliability

test would likely result in the innocent being jailed while the guilty remain

free.” Johnson, 650 N.E.2d at 1263.

      For all of the above reasons, I would reverse the conviction and

remand the case.
