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                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-XX-XXXXXXX
                                                               01-OCT-2019
                                                               08:04 AM




            IN THE SUPREME COURT OF THE STATE OF HAWAI‘I

                            ---oOo---
________________________________________________________________

                           STATE OF HAWAI‘I,
                    Respondent/Plaintiff-Appellee,

                                     vs.

                       BRONSON KANEAIAKALA,
                 Petitioner/Defendant-Appellant.
  _____________________________________________________________

                             SCWC-XX-XXXXXXX

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                (CAAP-XX-XXXXXXX; CR. NO. 15-1-0108)

                             OCTOBER 1, 2019

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

                 OPINION OF THE COURT BY McKENNA, J.

                            I.    Introduction

    This appeal arises from an impermissibly suggestive field

show-up identification.      Midday on Saturday, January 24, 2015,

Mari Laraway (“Laraway”) was walking with her minor son from

their apartment building on Date Street to her car.             As she

walked alongside the apartment building, she saw a man crouching
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beneath the window of a ground-floor apartment.              Once at her

car, she looked up and saw the man entering the apartment

through a window.       Laraway called 911 to report the man’s

activity.

      Honolulu Police Department (“HPD”) officers later found

Petitioner/Defendant-Apellant Bronson Kaneaiakala

(“Kaneaiakala”) naked in the laundry room of the apartment

building with items missing from the apartment, and they

arrested him.      Two-and-a-half hours after she had seen a man

enter the ground-floor apartment through a window, Laraway met

the officers on the street outside the apartment building.

Kaneaiakala was shirtless, handcuffed, and standing beside a

police car, surrounded by police.           Laraway looked at Kaneaiakala

and told the officers she was “almost positive” Kaneaiakala was

the man she saw at the window earlier.            After she had identified

Kaneaiakala as the suspect, Laraway was asked to complete a

suspect description form and she gave the officers a written

statement.

      The State of Hawaiʻi (“State”) charged Kaneaiakala with one

count of Burglary in the First Degree in violation of Hawai‘i

Revised Statutes (“HRS”) § 708-810(1)(c) (2014).1              Before trial,


1
      HRS § 708-810(1)(c) provides as follows:

             (1) A person commits the offense of burglary in the first
             degree if the person intentionally enters or remains
                                                               (continued. . .)

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Kaneaiakala filed a motion to suppress Laraway’s show-up

identification.

      The Circuit Court of the First Circuit (“circuit court”)2

conducted a hearing on the motion to suppress.             The State

stipulated that the procedure employed by HPD was impermissibly

suggestive.      The circuit court found Laraway’s identification

nonetheless sufficiently reliable and denied the motion.                   At

jury trial, the State presented testimony from Laraway, one of

the residents of the burglarized apartment, and two police

officers.     The jury found Kaneaiakala guilty as charged.

      On appeal, the Intermediate Court of Appeals (“ICA”)

affirmed the conviction and, in a summary disposition order,

held that the circuit court did not err in concluding that

Laraway’s identification was sufficiently reliable for admission

in evidence and consideration by the jury.             State v.

Kaneaiakala, No. CAAP-XX-XXXXXXX at 2-5 (App. Nov. 7, 2017)

(SDO).     On certiorari, Kaneaiakala argues Laraway’s




(continued. . .)
            unlawfully in a building, with intent to commit therein a
            crime against a person or against property rights, and:

             . . . .

             (c) The person recklessly disregards a risk that the building is
             the dwelling of another, and the building is such a dwelling.
2
      The Honorable Shirley M. Kawamura presided over the hearing on
Kaneaiakala’s motion to suppress and jury trial.


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identification should have been suppressed because it was

unreliable and tainted by HPD’s show-up procedure.

     As Justice Brennan stated in 1967, “[t]he vagaries of

eyewitness identification are well-known; the annals of criminal

law are rife with instances of mistaken identification.”                 United

States v. Wade, 388 U.S. 218, 228 (1967).          In the half-century

since Wade, science on human memory has advanced even further,

and it has become widely accepted that unreliable eyewitness

identifications are the leading cause of wrongful convictions.

     Recognizing this, in State v. Cabagbag, 127 Hawai‘i 302,

313-14, 277 P.3d 1027, 1038-39 (2012), we held that when the

trustworthiness or reliability of eyewitness identification is

central to a case, trial courts must give a specific jury

instruction when requested by the defense to focus the jury’s

attention on the reliability of the identification.             127 Hawaiʻi

at 313-14, 277 P.3d at 1038-39.        We also proposed a model jury

instruction to address reliability concerns with eyewitness

identifications, including thirteen reliability factors that a

judge should consider including in a jury instruction.             127

Hawai‘i at 314, 277 P.3d at 1039.

     By ruling that trial courts no longer had discretion to

reject defense requests for a jury instruction regarding the

trustworthiness of eyewitness identifications, we abrogated the

holding in State v. Padilla, 57 Haw. 150, 552 P.2d 357 (1976),

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that a trial court had discretion to decide whether to give such

an instruction.

    While overruling Padilla on that point in Cabagbag, we did

not address another holding of Padilla.          In Padilla, we also

adopted a test set out by the United States Supreme Court in

Neil v. Biggers, 409 U.S. 188 (1972), for trial courts to apply

to determine whether an eyewitness identification procured

through an impermissibly suggestive procedure should be

admissible in evidence.      We held that when an eyewitness

identification is procured through an impermissibly suggestive

procedure, the trial court must evaluate five factors under the

totality of the circumstances to determine whether the

identification is nonetheless sufficiently reliable to be

admitted in evidence.      Padilla, 57 Haw. at 154, 552 P.2d at 360.

    The five factors are: (1) the opportunity of the witness to

view the defendant at the time of the crime, (2) the witness's

degree of attention, (3) the accuracy of the witness's prior

description of the defendant, (4) the level of certainty

demonstrated by the witness at the identification, and (5) the

length of time between the crime and the identification.                 Id.

    The thirteen factors we held in Cabagbag that a judge

should consider including in a jury instruction regarding

reliability of eyewitness identifications include the five



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factors delineated in Padilla for a judge to consider in

addressing admissibility.

     After Cabagbag, in State v. Cabinatan, 132 Hawai‘i 63, 76,

319 P.3d 1071, 1084 (2014), we noted that although field show-up

identifications can be admissible, they are inherently

suggestive.    We cited to various United States Supreme Court

opinions criticizing identifications of only one person

presented as a possible perpetrator of a crime, including

Stovall v. Denno, 388 U.S. 293, 302 (1967) abrogated on other

grounds by Griffith v. Kentucky, 479 U.S. 314 (1987), which had

stated 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.”         Cabinatan, 132 Hawaiʻi at

83, 319 P.3d 1091.     We held that under the circumstances of that

case, where the eyewitness’s testimony suggested her

identification of the defendant in a show-up might have been

influenced by suggestive procedures, even under the pre-Cabagbag

discretionary standard, the trial court abused its discretion in

denying a defense request for a jury instruction regarding the

inherent suggestiveness of show-up identifications.             Cabinatan,

132 Hawaiʻi at 77, 319 P.3d at 1085.         But because the issue

before us was the need for a jury instruction and not

admissibility, we did not address whether trial courts must also



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consider additional factors when addressing the admissibility of

show-up identifications.

    A defendant is denied due process of law, however, when the

procedure used to obtain an eyewitness identification admitted

at trial is “unnecessarily suggestive and conducive to

irreparable mistaken identification.”         State v. Masaniai, 63

Haw. 354, 362, 628 P.2d 1018, 1024 (1981) (citations omitted).

In this case, we therefore address whether, in determining

whether an eyewitness identification procured through an

impermissibly suggestive procedure is nonetheless sufficiently

reliable under the totality of the circumstances to be admitted

in evidence, a trial judge must also consider factors we have

held the judge must consider including in a jury instruction

regarding the reliability of the eyewitness identification.

    In doing so, we set forth new rules that expressly overrule

precedent upon which parties have regulated their conduct;

therefore, our holdings will only apply prospectively to events

occurring after publication of this decision, i.e., to

admissibility determinations or jury instructions given after

the date of this opinion.       See State v. Auld, 136 Hawaiʻi 244,

256, 361 P.3d 471, 483 (2015) (citations omitted) (“The

‘paradigm case’ warranting a prospective-only application of a

new rule arises ‘when a court expressly overrules a precedent

upon which the contest would otherwise be decided differently

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and by which the parties may previously have regulated their

conduct.’”).

      Factors to be applied in addressing eyewitness and show-up

identifications should not differ based on whether it is a judge

or jury considering them for purposes of admissibility or, if

admitted into evidence, for purposes of determining reliability.

As further discussed below, and to summarize, we therefore

prospectively hold that trial courts must, at minimum, consider

any relevant factors set out in the Hawaiʻi Pattern Jury

Instructions--Criminal (“Hawai̒i Standard Instructions” or

“HAWJIC”) governing eyewitness and show-up identification

testimony,3 as may be amended, as well as any other relevant



3
      The HAWJIC 3.19 (2014) “Eyewitness Testimony” instruction currently
reads as follows:

             The burden of proof is on the prosecution with reference to
             every element of a crime charged, and this burden includes
             the burden of proving beyond a reasonable doubt the
             identity of the defendant as the person responsible for the
             crime charged.

             You must decide whether an eyewitness gave accurate
             testimony regarding identification.

             In evaluating identification testimony, you may consider
             the following factors:

             The opportunity of the witness to observe the person
             involved in the alleged criminal act;

             The stress, if any, to which the witness was subject at the
             time of the observation;

             The witness’s ability, following the observation, to
             provide a description of the person;

                                                                (continued. . .)

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(continued. . .)
            The extent to which the defendant fits or does not fit the
            description of the person previously given by the witness;

            The cross-racial or ethnic nature of the identification;

            The witness’s capacity to make an identification;

            Evidence relating to the witness’s ability to identify
            other participants in the alleged criminal act;

            Whether the witness was able to identify the person in a
            photographic or physical lineup;

            The period of time between the alleged criminal act and the
            witness’s identification;

            Whether the witness had prior contacts with the person;

            The extent to which the witness is either certain or
            uncertain of the identification and whether the witness’s
            assertions concerning certainty or uncertainty are well-
            founded;

            Whether the witness’s identification is in fact the product
            of his/her own recollection; and

            Any other evidence relating to the witness’s ability to
            make an identification.

The commentary provides that “[t]he court may wish to delete from the
instruction those listed factors that do not apply in a given case.” HAWJIC
3.19 cmt.

      The HAWJIC 3.19A (2014) “Show-Up Identification” instruction currently
reads as follows:

            In this case, in addition to other eyewitness
            identification testimony, you have received evidence that
            the defendant was identified by a witness at a so-called
            “show-up” conducted by the police. While show-ups are
            permissible, they are inherently suggestive police
            procedures. In determining the reliability and accuracy of
            an identification made at a police show-up, you must
            consider the totality of the circumstances involved in the
            show-up, which may include the following:

            [Whether the identification was the result of a suggestive
            procedure, including actions taken or words spoken by
            police or anyone else to the witness before, during, or
            after the identification process;]

            [Whether the police either indicated to the witness that a
            suspect was present in the procedure or failed to warn the
                                                              (continued. . .)

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factors that may be set out in binding precedent in addressing

whether, under a totality of circumstances, an impermissibly

suggestive eyewitness or show-up identification is nonetheless

sufficiently reliable to be admissible in evidence.

     We also prospectively hold that in addressing the

admissibility of a suggestive eyewitness or show-up

identification, trial courts must also consider the effect of

any suggestiveness on the reliability of the identification in

determining whether it should be admitted into evidence.

     Finally, we prospectively hold that when an eyewitness or

show-up identification is central to a case or has been procured

through a suggestive eyewitness or show-up identification, the

jury must also be instructed to consider the impact of any


(continued. . .)
            witness that the perpetrator may or may not be in the
            procedure;]

            [Whether the defendant was required to wear distinctive
            clothing that the perpetrator allegedly wore, or was
            handcuffed or otherwise appeared to be in police custody;]

            [Whether the witness was exposed to opinions, descriptions,
            or identifications made by other witnesses, or to
            photographs, news media, or to any other information that
            may have influenced the independence of the
            identification;]

            [Whether other participants in the show-up were similar in
            appearance to the defendant;]

            [Whether the witness's identification was made
            spontaneously and remained consistent thereafter;]

            [and any other circumstance relating to the witness’s
            ability to make an identification.]




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suggestive procedure on the reliability of the eyewitness or

show-up identification.4

       In Kaneaiakala’s case, however, the trial judge did not err

in applying the Padilla factors that governed the admissibility

determination at the time it was made.              As our holdings are

prospective, we therefore affirm the ICA’s judgment on appeal

affirming Kaneaiakala’s conviction and the denial of his motion

to suppress.

             II.   Additional Factual and Procedural Background

A.     Circuit Court Proceedings

       On January 26, 2015, the State charged Kaneaiakala via

felony information with one count of Burglary in the First

Degree, in violation of HRS § 708-810(1)(c).

       1.      Pretrial Motion to Suppress Eyewitness Identification

       On June 9, 2015, Kaneaiakala filed a motion to suppress

Laraway’s identification and argued the identification was

obtained through an impermissibly suggestive and unreliable

show-up.       Kaneaiakala maintained that as a result of the process

used by the officers to conduct the field show-up, there was an

“inordinately high” likelihood that Laraway incorrectly

4
      This language, which already appears in HAWJIC 3.19A governing show-up
identifications, could also be included in HAWJIC 3.19 governing eyewitness
identifications:

               [Whether the identification was the result of a suggestive
               procedure, including actions taken or words spoken by
               police or anyone else to the witness before, during, or
               after the identification process;]


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identified him as the man she saw at the window.            Kaneaiakala

also asserted Laraway’s identification was unreliable because

Laraway (1) viewed the man at the window briefly in passing, and

(2) she later “admitted she had bad eye sight and was not

wearing her glasses” when she witnessed the man at the window.

    The State responded that even if the show-up was

impermissibly suggestive, Laraway’s identification was still

admissible as reliable because: (1) Laraway saw the man at the

window in broad daylight; (2) her view was not obstructed; (3)

she “was able to provide at least a partial description of [the

suspect] to 911” that was consistent with how Kaneaiakala looked

when the police arrested him; (4) the show-up took place just a

few hours after Laraway saw the man at the window; and (5)

Laraway was “almost positive” that Kaneaiakala was the man she

saw at the window based on his body shape, scruffy face, and

short, curly hair.

    The circuit court held a two-day hearing on the motion to

suppress on September 1, 2015 and September 8, 2015.             Two

witnesses testified at the hearing: Laraway and Officer Kanoa

Hose (“Officer Hose”).      The following relevant testimony was

presented at the hearing.

           a.    Laraway’s Testimony

    Through a Japanese interpreter, Laraway testified as

follows.

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      Laraway lived in the 2904 Date Street Apartments on January

24, 2015.     At around 12:30 p.m. that day, she left her apartment

to walk to her car, which was parked on Date Street across from

the apartment building.        As she and her son walked on the

sidewalk alongside the apartment building before crossing Date

Street, Laraway saw a man crouched beneath the window of a

corner, ground-floor unit of the apartment building.               Laraway

was about four meters away from the man when she also noticed

that the window’s screen was rolled up.

      Laraway could only see the side of the man’s face as she

walked by, but she observed the man had short, curly hair and a

“scruffy face.”       She also noted he was “not black, but he seemed

to be suntanned, Caucasian with light brown . . . skin.”                   She

did not recognize him.        She took note of the man because “[i]t

was quite unusual” for someone to be crouched there.               The man

was wearing a hat covering a portion of his face, but at the

hearing she could not remember whether the hat cast a shadow

over his face.

      When Laraway got into her car, which was parked facing

towards the apartment, she looked up and saw the man’s upper

body was through the window and into the apartment.               She

immediately called 911.5


5
      The recording of Laraway’s 911 call was not offered as evidence at the
motion to suppress hearing.


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    On the day of the incident, Laraway spoke and wrote in

English when interacting with HPD.         Laraway had given the

following description of the man to the 911 dispatcher: “a

skinny black guy,” who was also “muscular” and “stout,” and who

was wearing a white or light blue t-shirt.

    At the hearing, Laraway thought the shirt the man was

wearing was long-sleeved.       She also clarified that she did not

describe the man’s hair to the 911 dispatcher or tell the 911

dispatcher that the man’s face was “scratchy or unshaved.”

    After calling 911, Laraway drove to her son’s soccer game.

While at the park, at around 2:00 p.m., Laraway received a call

from an officer, but did not further describe the man she saw at

the window at that time.

    Laraway returned home at around 3:00 p.m. and saw four

police cars outside the apartment building.           The police told

Laraway they had “captured the guy in the laundromat.”             She

thought that meant they had caught the man she had seen earlier

at the window.    Laraway agreed to participate in a field show-up

outside the apartment building sometime between 3:00 p.m. and

4:00 p.m.   The officers did not provide her with any forms or

instructions before conducting the show-up.

    The officers asked Laraway to look at Kaneaiakala, who was

standing on the sidewalk, shirtless, handcuffed, and surrounded

by police officers.     It was a “clear day” and she stood ten to

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fifteen feet away from him.       On June 24, 2015, Laraway told the

police she was “[p]retty sure” Kaneaiakala was the same man she

had seen earlier.     She “got the same impression” from

Kaneaiakala as she did from the man at the window, because of

the “structure and the face and the hair color . . . the image

itself, and also [the] complexion of his skin.”

    Laraway admitted she did not see anything distinct about

the eyes or nose of the man at the window, and if shown someone

with similar body shape and complexion, it might have been hard

for her to identify the correct person.          She further testified,

however, that she was sure that Kaneaiakala was the man she saw

at the window.

    After she identified Kaneaiakala, Laraway completed a

written statement on which she wrote, “I almost positive the guy

was him.”   After identifying Kaneaiakala, she also filled out a

suspect description form, checking various boxes describing the

suspect as a Caucasian male, 5’6” to 5’8” feet tall with a

medium build, dark brown hair, brown facial hair, and wearing a

long-sleeved white polo shirt and long blue pants.            She wrote in

the word “scruffy” to describe the man at the window’s facial

hair.

    Laraway explained that on June 24, 2015, she had checked

the box indicating the man at the window was wearing pants, but

she now recalled the man at the window was wearing shorts.               She

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also explained she checked the box for long-sleeved shirt, but

testified that the man might have been wearing a short-sleeved

shirt.     She acknowledged she checked the box indicating the man

at the window’s height based on later seeing Kaneaiakala at the

show-up.

    On January 24, 2015, Laraway had spoken English with the

officers and completed all forms in English.             At some point that

day, she told the police that she has “bad eyesight” and that

she was not wearing her glasses when she saw the man at the

window.     Laraway testified she was born and raised in Japan and

grew up interacting mostly with Japanese people.              At her

workplace, she predominately interacts with ethnically Japanese

people.     During her past decade in Hawaiʻi, however, she has seen

and interacted with diverse people, and she is married to a

Caucasian man.

    At the hearing, Laraway also identified Kaneaiakala, who

was present in the courtroom, as the man she had seen at the

window.

             b.    Officer Hose’s Testimony

    Officer Hose testified that on January 24, 2015, at around

12:38 p.m., he responded to a “suspicious circumstances type

case” at the apartment building.            Upon his arrival, he noticed

that a window screen of a ground-floor, corner apartment had

been cut.     He contacted the owner of the apartment, who arrived

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around 1:00 p.m.     The owner looked in the apartment and

identified missing items.

    Officer Hose left the apartment, but was called back thirty

minutes later to investigate a situation involving “a nude male

in the laundry room.”      When he returned, Officer Abe Kamanao

(“Officer Kamanao”) was in the laundry room with the man, whom

Officer Hose identified in court as Kaneaiakala.            The officers

found a long-sleeved, light-blue collared shirt and a pair of

black shorts near Kaneaiakala and instructed Kaneaiakala to put

on the shorts.    Officer Hose observed that several items the

apartment owner reported missing were in the laundry room,

including the watch Kaneaiakala was wearing.

    Officer Hose then called Laraway, who said she was

returning to the apartment building soon.          When she returned, he

asked her if she would be able to identify the man she saw at

the window and whether she would “be willing to participate in a

field show-up.”

    To conduct the show-up, Officer Hose had Kaneaiakala stand

next to a parked police car on the street outside the apartment

building.   He had Laraway stand “no more than about 40 feet”

away from Kaneaiakala, from where she had a clear, unobstructed

view of Kaneaiakala.      Laraway calmly and quickly identified

Kaneaiakala as the man she saw at the window.

    Officer Hose testified that Laraway was never given any

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instructions and was never told that the person she viewed may

or may not be a suspect.       He denied telling Laraway that

Kaneaiakala was the man she had seen earlier. He admitted that

Laraway did not record her description of the man at the window

until after the show-up.

    During Officer Hose’s cross-examination, the State

stipulated that the show-up was impermissibly suggestive.

            c.   The Circuit Court’s Findings of Fact, Conclusions
                 of Law, and Order Denying Motion to Suppress

    On October 27, 2015, the circuit court entered findings of

fact and conclusions of law denying Kaneaiakala’s motion to

suppress.    The court’s findings of fact were based largely on

Laraway’s testimony of the events that occurred on January 24,

2015.   The findings of fact included, among other things, that

Laraway (1) participated in a field show-up, (2) recognized

Kaneaiakala based on his build, body shape, complexion, and

hair, and (3) told the officers she was “almost positive” that

Kaneaiakala was the man she saw at the window.

    Based on those findings, the circuit court concluded that:

(1) although the show-up procedure was impermissibly suggestive,

(2) Laraway’s identification of Kaneaiakala was nonetheless

admissible because the totality of the circumstances, including

the five Biggers factors, indicated the identification was

reliable.


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    The case then proceeded to jury trial.

    2.      Jury Trial

    Kaneaiakala’s jury trial was held from April 18, 2016 to

April 20, 2016.      The State called four witnesses:         Laraway,

Officer Hose, Kip Praissman (“Praissman”), and Officer Kamanao.

Kaneaiakala did not present any witnesses.            Laraway’s testimony

was substantially similar to her testimony at the hearing on the

motion to suppress.      At trial, she added that she lived with her

husband and son at the 2904 Date Street apartment building on

January 24, 2015, and that she had left their apartment that day

with her twelve-year-old son to go to her son’s soccer game at

Kapiolani Park.      Officer Hose’s testimony was substantially

similar to his testimony at the hearing on the motion to

suppress.

    Praissman, a resident of the ground-floor apartment that

was broken into, testified in pertinent part as follows.                  He had

locked the apartment when he left it the morning of January 24,

2015.    He returned around 1:00 p.m. after receiving a call from

HPD that his apartment had been burglarized and met with HPD

officers to identify what items were missing from the apartment

and to provide a statement.

    A short time after the officers left, Praissman discovered

a naked man standing in the laundry room of the apartment

building and wearing Praissman’s watch.           Praissman immediately

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called the police.     Praissman later identified other items the

officers found in the laundry room with the man as items missing

from his apartment.     At trial, Praissman identified the man he

saw in the laundry room as Kaneaiakala.

    Officer Kamanao testified that on January 24, 2015, he had

responded to a call regarding an attempted burglary at the

apartment with Officer Hose and returned that same day in

response to a call regarding a naked man in the building’s

laundry room.     Kamanao testified that, along with clothing and

some of Praissman’s missing items, the officers also found a

kitchen mitt, pair of scissors, pair of pliers, knife, dental

floss, and a screwdriver on the washing machine near

Kaneaiakala.    At trial, Officer Kamanao identified Kaneaiakala

as the man he saw in the laundry room.

    The recording of Laraway’s phone call to 911 on the day of

the incident was also introduced and played for the jury.

    The jury found Kaneaiakala guilty as charged of one count

of Burglary in the First Degree in violation of HRS § 708-

810(1)(c).     On September 20, 2016, the circuit court entered a

Judgment of Conviction and Sentence (“circuit court judgment”)

sentencing Kaneaiakala to a ten-year term of imprisonment with a

mandatory minimum sentence of three years and four months as a

repeat offender.     Kaneaiakala timely appealed from the circuit

court judgment to the ICA.

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B.     ICA Proceedings

       On appeal to the ICA, Kaneaiakala argued the circuit court

erred by denying his motion to suppress because the field show-

up was impermissibly suggestive and Laraway’s identification of

Kaneaiakala was unreliable.          Kaneaiakala also argued there was

insufficient evidence for the State to convict him of first

degree burglary because the State did not present substantial

evidence that Kaneaiakala burglarized the apartment.

       In response, the State conceded the show-up procedure was

impermissibly suggestive.          The State argued, as it did in

opposition to the motion to suppress, that Laraway’s

identification was nevertheless admissible because it was

reliable based on the totality of the circumstances.                The State

maintained that based on the totality of the circumstances test

set forth in Biggers and Padilla, the circuit court correctly

denied Kaneaiakala’s motion to suppress.

       On November 7, 2017, the ICA entered an SDO affirming the

circuit court’s denial of the motion to suppress and the circuit

court judgment.        Kaneaiakala, SDO at 2.       Although the ICA

accepted the State’s stipulation that the field show-up was

impermissibly suggestive, the ICA determined that Laraway’s

identification was sufficiently reliable and worthy of

presentation to the jury based on the totality of the



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circumstances.6        Kaneaiakala, SDO at 3-5.        On November 24, 2017,

the ICA entered a Judgment on Appeal consistent with the SDO

(“judgment on appeal”).

C.     Application for Certiorari

       Kaneaiakala timely filed an application for writ of

certiorari from the ICA’s judgment on appeal and SDO.

Kaneaiakala contends the ICA erred in upholding the circuit

court’s rulings that Laraway’s identification of Kaneaiakala was

sufficiently reliable for admissibility under Padilla.

                          III. Standards of Review

       With respect to whether an eyewitness identification should

be suppressed, we have held that “questions of suggestiveness

and reliability are questions of law that are freely reviewable

on appeal.”       State v. Okumura, 78 Hawai‘i 383, 391, 894 P.2d 80,

88 (1995), abrogated on other grounds by Cabagbag, 127 Hawai‘i at

315, 277 P.3d at 1040.         However, “answering these questions

involves determinations of fact by the [trial] court.”                78

Hawaiʻi at 392, 894 P.2d at 89.           “[F]actual determinations made

by the trial court deciding pretrial motions in a criminal case

[are] governed by the clearly erroneous standard,” and

“conclusions of law are reviewed under the right/wrong

6
      The ICA also examined the State’s evidence and testimony adduced at
trial and ultimately held there was substantial evidence identifying
Kaneaiakala and thus sufficient evidence to convict him as charged. See
Kaneaiakala, SDO at 5-8.



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standard.”       State v. Edwards, 96 Hawai‘i 224, 231, 30 P.3d 238,

245 (2001) (quoting State v. Eleneki, 92 Hawai‘i 562, 564, 993

P.2d 1191, 1193 (2000)).

           “A finding of fact is clearly erroneous when (1) the

record lacks substantial evidence to support the finding, or (2)

despite substantial evidence in support of the finding, the

appellate court is nonetheless left with a definite and firm

conviction that a mistake has been made.”              Okumura, 78 Hawaiʻi at

392, 894 P.2d at 89 (citations and internal quotation marks

omitted).       When applying the “clearly erroneous” test, it must

be remembered that:

               [i]t is for the trial judge as fact-finder to assess the
               credibility of witnesses and to resolve all questions of
               fact; the judge may accept or reject any witness’s
               testimony in whole or in part. As the trier of fact, the
               judge may draw all reasonable and legitimate inferences and
               deductions from the evidence, and the findings of the trial
               court will not be disturbed unless clearly erroneous. An
               appellate court will not pass upon the trial judge’s
               decisions with respect to the credibility of witnesses and
               the weight of the evidence, because this is the province of
               the trial judge.

State v. Eastman, 81 Hawaiʻi 131, 139, 913 P.2d 57, 65 (1996)

(citations omitted).

                                 IV.   Discussion

A.     As State v. Padilla Controlled, the Circuit Court’s Denial
       of the Motion to Suppress was Properly Affirmed by the ICA

       A defendant is denied due process of law when the procedure

used to obtain an eyewitness identification admitted at trial is

“unnecessarily suggestive and conducive to irreparable mistaken


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identification.”     Masaniai, 63 Haw. at 362, 628 P.2d at 1024

(citations omitted).      We have held, however, that an eyewitness

identification is not inadmissible merely because the

identification procedure was impermissibly suggestive.             State v.

Malani, 59 Haw. 167, 170, 578 P.2d 236, 238 (1978) (citing

Manson v. Brathwaite, 432 U.S. 98, 109-114 (1977))

(“Impermissible suggestiveness alone does not require the

exclusion of identification evidence.”).          Rather, whether an

eyewitness identification obtained through an impermissibly

suggestive procedure is admissible depends upon the reliability

of the identification.      Cabagbag, 127 Hawai‘i at 309, 277 P.3d at

1034 (citing Padilla, 57 Haw. at 153-55, 552 P.2d at 360-61).

    Kaneaiakala argues the ICA erred in upholding the circuit

court’s ruling that Laraway’s identification was sufficiently

reliable under Padilla and thus admissible, because the

impermissibly suggestive show-up produced an unreliable

identification and created a substantial likelihood of

misidentification, requiring suppression of the identification.

We hold that pursuant to the Padilla rule then in effect, the

circuit court did not clearly err in concluding that Laraway’s

identification was sufficiently reliable and thus admissible.

Therefore, the ICA did not err with regard to the admission of

Laraway’s identification.



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    In this case, the circuit court accepted the State’s

stipulation that the show-up identification of Kaneaiakala was

impermissibly suggestive.       See Cabinatan, 132 Hawaiʻi at 76, 319

P.3d at 1084 (“While show-ups are permissible, they are

inherently suggestive.”) (citations omitted).           The circuit court

then applied the five Biggers factors we adopted in Padilla to

determine whether the show-up identification at issue was

nevertheless sufficiently reliable to be admissible in evidence.

Padilla held that even if an eyewitness identification is

procured through an impermissibly suggestive procedure, the

trial court must nonetheless determine whether the

identification is sufficiently reliable under the totality of

the circumstances to be admissible in evidence.            See Padilla, 57

Haw. at 154, 552 P.2d at 360.        Under Padilla, the circuit court

was required to conduct a totality of the circumstances analysis

of Laraway’s identification, paying particular attention to (1)

Laraway’s opportunity to view the suspect at the time of the

crime, (2) her degree of attention, (3) the accuracy of her

prior description of the suspect, (4) the level of certainty she

demonstrated at the show-up, and (5) the length of time between

the crime and the show-up.       See Padilla, 57 Haw. at 154, 552

P.2d at 360 (citing Biggers, 409 U.S. at 199-200).

    With respect to the five factors, the circuit court found:

(1) Laraway “got a good look” at the suspect on the day of the

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incident; (2) she observed the suspect’s build, complexion,

hairstyle, and clothing; (3) she did not recognize the suspect

and felt something was wrong; (4) she looked back at the

apartment while inside her car and saw that the suspect’s upper

body had entered the apartment window, prompting her to call

911; (5) Laraway had been “almost positive” at the field show-up

that Kaneaiakala was the same man she saw beneath the window;

and (6) at the motion to suppress hearing, Laraway “was sure

that [Kaneaiakala] was the person she saw earlier,” even if “she

might have a hard time picking between two people with similar

body shape and complexion without seeing their face[s].”                   The

court also found that the show-up was conducted within three

hours of Laraway’s initial observation of the suspect.               The

court concluded that within the totality of the circumstances,

including consideration of the five reliability factors,

Laraway’s identification was worthy of presentation to the jury.

      Upon review of the testimony adduced at the motion to

suppress hearing, the circuit court did not clearly err.                   The

ICA, therefore, did not err in upholding the circuit court’s

denial of Kaneaiakala’s motion to suppress based on the Padilla

standards in effect at the time of the circuit court’s ruling.7


7
      Kaneaiakala also argues that because Laraway’s identification should
not have been admitted, the State did not present substantial evidence of his
identity, and therefore the ICA erred by holding there was sufficient
evidence at trial for his conviction. Our affirmance of the ICA’s holding
                                                              (continued. . .)

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B.     Prospectively, Trial Courts Must Consider the Same Factors
       as Jurors in Evaluating the Reliability of Challenged
       Eyewitness Identifications for Admissibility Purposes

       1.      The Padilla Factors are Insufficient

       As discussed, under our current framework, when a defendant

challenges the admissibility of an eyewitness identification

based on an impermissibly suggestive procedure, courts are

required to determine within the totality of the circumstances

whether the identification is nonetheless “sufficiently reliable

so that it is worthy for presentation to and consideration by

the jury.”       See State v.Walton, 133 Hawai‘i 66, 87-88, 324 P.3d

876, 898 (2014) (citations omitted).             The identification must be

suppressed only if the impermissibly suggestive procedure used

created a very substantial likelihood of misidentification.                   133

Hawai‘i at 87, 324 P.3d at 897 (citations omitted).

       In this case, the circuit court applied the five-factor

Biggers test we adopted in Padilla to determine whether a show-

up identification obtained from impermissibly suggestive

procedure is nonetheless reliable under the totality of the

circumstances and thus admissible.             57 Haw. at 154, 552 P.2d at

360.       Since Padilla, we have not modified the

five-factor test for admissibility of impermissibly suggestive

eyewitness identifications.           See, e.g., Cabagbag, 127 Hawaiʻi at

(continued. . .)
that the circuit court did not err in admitting Laraway’s identification is
dispositive on that issue.


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309, 277 P.3d at 1034 (applying the Padilla/Biggers factors in

2012).

     It has become widely accepted since 1976, however, that

misidentifications are one of the leading causes of wrongful

convictions.     127 Hawaiʻi at 315, 277 P.3d at 1040.          A robust

body of scholarship and empirical research has emerged calling

into doubt whether the Biggers factors we adopted in Padilla are

sufficient indicators of reliability and admissibility.

     In Cabagbag, we held that when identification evidence is a

central issue in a case, a court must, at the defendant’s

request, give a specific jury instruction about factors

affecting the reliability of eyewitness identification.              127

Hawai‘i at 304, 313–15, 277 P.3d at 1029, 1038–40.             To support

the need for the special jury instructions, we cited numerous

studies evincing the connection between unreliable eyewitness

identifications and wrongful convictions.           127 Hawaiʻi at 310-14,

277 P.3d at 1035-39.       We explained:

            Many studies now confirm that false identifications are
            more common than was previously believed. For example,
            Professor Brandon L. Garrett concluded in a study involving
            250 exonerated defendants that “[e]yewitnesses
            misidentified 76% of the exonerees (190 of 250 cases).”
            Brandon L. Garrett, Convicting the Innocent: Where Criminal
            Prosecutions Go Wrong, 48 (2011). Professor Garrett’s
            original study of 200 such cases in 2008 concluded that
            eyewitness identification testimony was the leading
            contributing factor to wrongful convictions and was four
            times more likely to contribute to a wrongful conviction
            than a false confession. Brandon L. Garrett, Judging
            Innocence, 108 Colum. L. Rev. 55, 76 (2008). Other studies
            have reached similar results. See, e.g., Edward Connors,
            et. al., Convicted by Juries, Exonerated by Science: Case
            Studies in the Use of DNA Evidence to Establish Innocence

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             after Trial, 15, 96 (1996), available at https://www.ncjrs.
             gov/pdffiles/dnaevid.pdf (reviewing 28 sexual assault cases
             in which defendants were later exonerated and concluding
             that all cases, except those involving homicide, “involved
             victim eyewitness identification both prior to and at
             trial,” and that in those cases “eyewitness testimony was
             the most compelling evidence”); Gary L. Wells, et. al.,
             Recommendations for Properly Conducted Lineup
             Identification Tasks, in Adult Eyewitness Testimony:
             current Trends and Developments 223–24 (1994) (studying
             over 1,000 wrongful convictions and concluding that recall
             errors by witnesses were the leading cause of such
             convictions).

127 Hawaiʻi at 310, 277 P.3d at 1035 (some formatting altered).

      In Cabagbag, we recognized that studies had identified

factors such as “passage of time, witness stress, duration of

exposure, distance, ‘weapon focus . . . ’, and cross-race bias”8

as affecting the reliability of an eyewitness identification.

127 Hawaiʻi at 310-11, 277 P.3d at 1035-36.            We also noted that,

“[e]mpirical research has also undermined the common sense

notion that the confidence of the witness is a valid indicator

of the accuracy of the identification.”            127 Hawai‘i at 311, 277

P.3d at 1036.

      Accordingly, we set out thirteen factors that a judge

should consider including in a jury instruction on how to assess

the reliability of an eyewitness identification which Hawaii’s


8
      Other jurisdictions have also recognized that cross-race identification
raises significant reliability issues. See, e.g., Young v. State, 374 P.3d
395, 424 (Alaska 2016); State v. Henderson, 27 A.3d 872, 907 (N.J. 2011).
See also Anthony G. Greenwald & Linda Hamilton Krieger, Implicit Bias:
Scientific Foundations, 94 CALIF. L. REV. 945, 946 (2006) (“[T]he science
of implicit cognition suggests that actors do not always have conscious,
intentional control over the processes of social perception, impression
formation, and judgment that motivate their actions.”).



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Standard Committee on Pattern Jury Instructions (“Jury

Instructions Committee”) has adopted in Hawaiʻi Standard

Instruction 3.19.     HAWJIC 3.19 reads as follows:

           The burden of proof is on the prosecution with reference to
           every element of a crime charged, and this burden includes
           the burden of proving beyond a reasonable doubt the
           identity of the defendant as the person responsible for the
           crime charged.

           You must decide whether an eyewitness gave accurate
           testimony regarding identification.

           In evaluating identification testimony, you may consider
           the following factors:

           The opportunity of the witness to observe the person
           involved in the alleged criminal act;

           The stress, if any, to which the witness was subject at the
           time of the observation;

           The witness’s ability, following the observation, to
           provide a description of the person;

           The extent to which the defendant fits or does not fit the
           description of the person previously given by the witness;

           The cross-racial or ethnic nature of the identification;

           The witness’s capacity to make an identification;

           Evidence relating to the witness’s ability to identify
           other participants in the alleged criminal act;

           Whether the witness was able to identify the person in a
           photographic or physical lineup;

           The period of time between the alleged criminal act and the
           witness’s identification;

           Whether the witness had prior contacts with the person;

           The extent to which the witness is either certain or
           uncertain of the identification and whether the witness’s
           assertions concerning certainty or uncertainty are well-
           founded;

           Whether the witness’s identification is in fact the product
           of his/her own recollection; and

           Any other evidence relating to the witness’s ability to
           make an identification.


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HAWJIC 3.19 Eyewitness Testimony (added underscoring indicating

substantive addition to the instruction approved in Cabagbag).9

      The existing Padilla factors, in contrast, only require

that a judge consider the following five factors, some of which

are subsumed in different terminology within HAWJIC 3.19:                  (1)

the opportunity of the witness to view the defendant at the time

of the crime, (2) the witness's degree of attention, (3) the

accuracy of the witness's prior description of the defendant,

(4) the level of certainty demonstrated by the witness at the

identification, and (5) the length of time between the crime and

the identification.

      In Cabagbag, by ruling that trial courts no longer have

discretion to reject a defense request for a jury instruction

regarding the reliability of an eyewitness identification, we

abrogated our holding in Padilla that the decision on whether or

not to give such a jury instruction was discretionary with the

trial court.      While overruling Padilla on this point, however,

as admissibility was not at issue, we did not address whether a

trial judge should also have to consider the thirteen Cabagbag

factors, rather than the five Padilla factors, to determine


9
      In addition to the underscored text, HAWJIC 3.19 differs from the
instruction proposed in Cabagbag by its use of “person involved in the
alleged criminal act” in place of where Cabagbag used “perpetrator.” Compare
HAWJIC 3.19 with Cabagbag, 127 Hawai‘i at 314, 277 P.3d at 1039.



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whether an impermissibly suggestive eyewitness identification

was nonetheless sufficiently reliable under the totality of

circumstances to be admissible in evidence.

       After Cabagbag, in Cabinatan, we noted that although field

show-up identifications can be admissible, they are inherently

suggestive.        Cabinatan, 132 Hawaiʻi at 76, 319 P.3d at 1084.10              We


10
       We noted:

              The police did not have Kincaid identify Cabinatan in
              either a line-up or photographic array. Thus,
              identification of Cabinatan was made at an inherently
              suggestive field showup where Cabinatan was in
              handcuffs. See, e.g., United States v. Newman, 144 F.3d
              531, 535 (7th Cir. 1998) (“We have noted many times that a
              showup identification, in which witnesses confront only one
              suspect, is inherently suggestive.”) (citing United States
              ex rel. Kirby v. Sturges, 510 F.2d 397, 403 (7th Cir.
              1975) (Stevens, J.) (“Without question, almost any one-to-
              one confrontation between a victim of crime and a person
              whom the police present to him as a suspect must convey the
              message that the police have reason to believe him
              guilty.”)). The United States Supreme Court has noted that
              “the influence of improper suggestion upon identifying
              witnesses probably accounts for more miscarriages of
              justice than any other single factor.” United States v.
              Wade, 388 U.S. 218, 229, 87 S.Ct. 1926, 18 L.Ed.2d 1149
              (1967) (internal quotation marks omitted). Such suggestive
              circumstances have a “corrupting effect” on
              reliability. Manson v. Brathwaite, 432 U.S. 98, 114, 97
              S.Ct. 2243, 53 L.Ed.2d 140 (1977); see also Stovall v.
              Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199
              (1967) (“The practice of showing suspects singly to persons
              for the purpose of identification, and not as part of a
              lineup, has been widely condemned.”); State v. DeCenso, 5
              Haw.App. 127, 131, 681 P.2d 573, 578 (1984). As explained
              by the dissent in Perry [v. New Hampshire, 565 U.S. 228,
              251 (2012)], an initial identification derived through
              suggestive circumstances often is difficult to discredit as
              part of the adversary process:

                     Eyewitness evidence derived from suggestive
                     circumstances . . . is uniquely resistant to
                     the ordinary tests of the adversary process.
                     An eyewitness who has made an identification
                     often become convinced of its accuracy. . . .
                     At trial, an eyewitness' artificially inflated
                                                                  (continued. . .)

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held that under the circumstances of that case, where the

eyewitness’s testimony indicated her show-up identification of

the defendant might have been influenced by suggestive

procedures, even though the giving of an instruction was

discretionary pre-Cabagbag, the trial court abused its

discretion in denying a defense request for a jury instruction

regarding the inherent suggestiveness of show-up

identifications.      Cabinatan, 132 Hawaiʻi at 77, 319 P.3d at 1085.

Again, although we ruled that jurors must be instructed on

issues regarding the suggestiveness of show-up identifications,

as admissibility was not at issue, we did not address whether a

judge would also be required to consider suggestiveness factors

affecting reliability in evaluating admissibility.

      As a result of our holding in Cabinatan, the Jury

Instructions Committee also promulgated Hawaiʻi Standard

Instruction 3.19A regarding show-up identifications, which reads

as follows:

(continued. . .)
                   confidence in an identification's accuracy
                   complicates the jury's task of assessing
                   witness credibility and reliability. . . . The
                   end result of suggestion . . . is to fortify
                   testimony bearing directly on guilt that juries
                   find extremely convincing and are hesitant to
                   discredit.

      Perry, 132 S.Ct. at 732 (Sotomayor, J., dissenting).

Cabinatan, 132 Hawaiʻi at 82-83, 319 P.3d at 1090-91.




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              In this case, in addition to other eyewitness
              identification testimony, you have received evidence that
              the defendant was identified by a witness at a so-called
              “show-up” conducted by the police. While show-ups are
              permissible, they are inherently suggestive police
              procedures. In determining the reliability and accuracy of
              an identification made at a police show-up, you must
              consider the totality of the circumstances involved in the
              show-up, which may include the following:

              [Whether the identification was the result of a suggestive
              procedure, including actions taken or words spoken by
              police or anyone else to the witness before, during, or
              after the identification process;]

              [Whether the police either indicated to the witness that a
              suspect was present in the procedure or failed to warn the
              witness that the perpetrator11 may or may not be in the
              procedure;]

              [Whether the defendant was required to wear distinctive
              clothing that the perpetrator allegedly wore, or was
              handcuffed or otherwise appeared to be in police custody;]

              [Whether the witness was exposed to opinions, descriptions,
              or identifications made by other witnesses, or to
              photographs, news media, or to any other information that
              may have influenced the independence of the
              identification;]

              [Whether other participants in the show-up were similar in
              appearance to the defendant;]

              [Whether the witness's identification was made
              spontaneously and remained consistent thereafter;]

              [and any other circumstance relating to the witness’s
              ability to make an identification.]

HAWJIC 3.19A Show-Up Identification.

       This instruction appropriately points out additional

factors that a judge should consider including in a jury

instruction regarding the reliability of show-up

identifications.        Yet, trial courts are currently not required

11
      We suggest that, similar to HAWJIC 3.19, “perpetrator” be changed to
“person involved in the alleged criminal act” whenever it appears in this
instruction. See supra text accompanying note 9.



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to consider any of these factors that may be relevant in

evaluating reliability for admissibility purposes.

    2.      Admissibility Criteria in Other States

    Several states that also adopted the five-factor Biggers

test, as we did in Padilla, have since modified their frameworks

to require trial judges to consider additional factors affecting

reliability contained in jury instructions when they evaluate

the reliability of eyewitness identifications for admissibility

purposes.

    The Utah Supreme Court, for example, adopted the Biggers

test in 1980.     See State v. McCumber, 622 P.2d 353, 357 (Utah

1980) (abrogation recognized in State v. Ramirez, 817 P.2d 774,

779-81 (Utah 1991)).       Initially, in 1986, as we did in Cabagbag,

the Utah court recognized weaknesses with the Biggers test in

light of scientific studies on human memory and modified the

considerations to be included in its jury instructions, which

previously only included the five Biggers factors.             See State v.

Long, 721 P.2d 483, 490 (Utah 1986).          The Utah court retained

only two of the Biggers factors and explicitly rejected the

Biggers “level of certainty” factor based on studies indicating

that suggestive police procedures may influence a witness’s

confidence.     See Long, 721 P.2d at 490-93.         The Utah court also

required consideration of whether an identification was the

product of suggestion.       See 721 P.2d at 493.

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       Then, with respect to the admissibility of suggestive

eyewitness identifications, the Utah Supreme Court ruled in 1991

that the reliability factors to be included in jury instructions

also applied to the threshold question of the admissibility of

eyewitness identifications.12          See Ramirez, 817 P.2d at 778-79.

       Similarly, the New Jersey Supreme Court had adopted Biggers

and Manson in 1982.        State v. Carter, 449 A.2d 1280, 1303-04

(N.J. 1982).       Then in 2011, in the leading case State v.

Henderson,13 after extensive research on memory and the

reliability of eyewitness identification,14 the New Jersey

Supreme Court recognized that “[s]cience has proven that memory

is malleable.       The body of eyewitness identification research

12
      The Utah test for reliability, based on the considerations enunciated
in Long, are:

              (1) [T]he opportunity of the witness to view the actor
              during the event; (2) the witness’s degree of attention to
              the actor at the time of the event; (3) the witness’s
              capacity to observe the event, including his or her
              physical and mental acuity; (4) whether the witness’s
              identification was made spontaneously and remained
              consistent thereafter, or whether it was the product of
              suggestion; and (5) the nature of the event being observed
              and the likelihood that the witness would perceive,
              remember and relate it correctly.

Ramirez, 817 P.2d at 781 (quoting Long, 721 P.2d at 493). Utah courts have
also identified expert testimony as an effective means of assisting jurors
with determining eyewitness identification reliability. See, e.g., State v.
Clopten, 223 P.3d 1103, 1108-15 (Utah 2009).
13
       We discussed Henderson in Cabagbag.    See 127 Hawaiʻi at 312-13.
14
      Henderson was based in large part on the findings of a Special Master,
who was appointed to evaluate hundreds of scientific studies, preside over
hearings, hear testimony from seven experts, and issue an extensive report
regarding human memory and the reliability of eyewitness identifications.
Henderson, 27 A.3d at 877-78.



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further reveals that an array of variables can affect and dilute

memory and lead to misidentifications.”              Henderson, 27 A.3d at

895.       Henderson recognized that, in practice, many New Jersey

courts treated the Biggers factors as a checklist without

considering the effects of other variables on the reliability of

the identification within the totality of the circumstances.

Henderson, 27 A.3d at 919.15

       The New Jersey Supreme Court announced a new, non-

exhaustive list of twenty-two reliability factors to be

considered within the totality of the circumstances by a court

when ruling on the admissibility of an eyewitness

identification.         27 A.3d at 920-23.16      The New Jersey Supreme

Court ruled that for a defendant to obtain a pretrial hearing on

the admissibility of an eyewitness identification, the

“defendant has the initial burden of showing some evidence of

suggestiveness” due to one or more system variables “that could




15
      The New Jersey Supreme Court also raised concerns that three of the
Biggers factors — the witness’s opportunity to view the crime, the witness’s
degree of attention, and the witness’s level of certainty at the time of
identification — rely on witness self-reporting, which may be affected by
suggestive procedure. Henderson, 27 A.3d at 918.
16
      The New Jersey Supreme Court divided the factors into (1) “system
variables,” which are factors that are within the control of the criminal
justice system, such as police procedure, and (2) “estimator variables,”
which are factors “related to the witness, the perpetrator, of the event
itself — like distance, light, or stress — over which the legal system has no
control.” Henderson, 27 A.3d at 878, 895-96, 920-23.



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lead to a mistaken identification.”17            27 A.3d at 920.     To avoid

suppression of the identification, the prosecution would then be


17
      “System variables,” factors that are within the control of the criminal
justice system, laid out by Henderson include:

              1. Blind Administration. Was the lineup procedure
              performed double-blind? [Where the administrator does not
              know which lineup member is the subject.] If double-blind
              testing was impractical, did the police use a technique . .
              . to ensure that the administrator had no knowledge of
              where the suspect appeared in the photo array or lineup?

              2. Pre-identification Instructions. Did the administrator
              provide neutral, pre-identification instructions warning
              that the suspect may not be present in the lineup and that
              the witness should not feel compelled to make an
              identification?

              3. Lineup Construction. Did the array or lineup contain
              only one suspect embedded among at least five innocent
              fillers? Did the suspect stand out from other members of
              the lineup?

              4. Feedback. Did the witness receive any information or
              feedback, about the suspect or the crime, before, during,
              or after the identification procedure?

              5. Recording Confidence. Did the administrator record the
              witness' statement of confidence immediately after the
              identification, before the possibility of any confirmatory
              feedback?

              6. Multiple Viewings. Did the witness view the suspect
              more than once as part of multiple identification
              procedures? Did police use the same fillers more than
              once?

              . . . .

              [7.] Private Actors. Did law enforcement elicit from the
              eyewitness whether he or she had spoken with anyone about
              the identification and, if so, what was discussed?

              [8.] Other Identifications Made. Did the eyewitness
              initially make no choice or choose a different suspect or
              filler?

27 A.3d at 920. The New Jersey Supreme Court later revised this framework to
allow a defendant to trigger a pretrial hearing due to estimator variables as
well as system variables. State v. Chen, 27 A.3d 930, 943 (N.J. 2011); see
also State v. Almaraz, 301 P.3d 242, 252-53 (Idaho 2013) (adopting system
variables as threshold considerations for whether a pre-trial hearing on a
                                                              (continued. . .)

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required to offer proof at the hearing, accounting for both

system and estimator variables, that the identification is

reliable.      27 A.3d at 919.      The ultimate burden in New Jersey,

however, remained with the defendant “to prove a very

substantial likelihood of irreparable misidentification.”                   27

A.3d at 920.18


(continued. . .)
motion to suppress an eyewitness identification allegedly procured from
suggestive police procedure is necessary).
18
      Hawaiʻi law requires a “very substantial likelihood of irreparable
misidentification” based on a totality of circumstances for suppression of
identification. Padilla, 57 Haw. at 154, 552 P.2d at 360. Padilla cited to
the United States Supreme Court opinion in Simmons v. United States, 390 U.S.
377, 384 (1968) for this test. With respect to the burden in cases
challenging identifications, the United States Supreme Court

       applie[s] a two-step inquiry: First, the defendant has the burden
       of showing that the eyewitness identification was derived through
       “impermissibly suggestive” means. Simmons, 390 U.S. at 384, 88
       S.Ct. 967. [S]econd, if the defendant meets that burden, courts
       consider whether the identification was reliable under the
       totality of the circumstances. That step entails considering the
       witness'[s] opportunity to view the perpetrator, degree of
       attention, accuracy of description, level of certainty, and the
       time between the crime and pretrial confrontation, then weighing
       such factors against the “corrupting effect of the
       suggestive identification.” Braithwaite, 432 U.S.[] at 108, 114,
       97 S.Ct. 2243. Most identifications will be admissible. The
       standard of “fairness as required by the Due Process
       Clause,” id., at 113, 97 S.Ct. 2243, however, demands that a
       subset of the most unreliable identifications—those carrying a “
       ‘very substantial likelihood of . . . misidentification’”—will be
       excluded. Biggers, 409 U.S.[] at 198, 93 S.Ct. 375.

Perry, 565 U.S. at 253-54. Thus, a defendant challenging an eyewitness
identification has the initial burden to show that the identification was
“impermissibly suggestive.” The court then independently analyzes whether
there is a “very substantial likelihood of misidentification” under the
totality of circumstances. To the extent Hawaiʻi cases state that

       [w]hen the defendant challenges admissibility
       of eyewitness identification on the grounds of impermissibly
       suggestive pre-trial identification procedure, he or she has
       the burden of proof, and the court, trial or appellate, is faced
       with two questions: (1) whether the procedure was impermissibly
                                                               (continued. . .)

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       Thus, in determining whether suggestive identifications

should be admissible, New Jersey requires courts to employ a

totality of the circumstances test considering reliability

variables set forth in Henderson.19           27 A.3d at 919.      Other

states have since expressly adopted New Jersey’s Henderson

framework.      See, e.g., State v. Harris, 191 A.3d 119, 143–44

(Conn. 2018); Young, 374 P.3d at 427-28.20


(continued. . .)
      or unnecessarily suggestive; and (2) if so, whether, upon viewing
      the totality of the circumstances, such as opportunity to view at
      the time of the crime, the degree of attention, and the elapsed
      time, the witness's identification is deemed sufficiently
      reliable so that it is worthy of presentation to and
      consideration by the jury,

Walton, 133 Hawaiʻi at 83, 324 P.3d at 893, an interpretation of this phrase
placing the burden of proof on the defendant to establish factor (2) would
not comport with the standard of “fairness as required by the Due Process
Clause” of the federal constitution. Manson, 432 U.S. at 113.
19
      Under New Jersey’s new test, the court may end the pretrial hearing at
any time if the court determines the defendant’s suggestiveness accusation is
groundless. Henderson, 27 A.3d at 920.
20
      The Idaho Supreme Court decided to maintain the two-part test from
Biggers/Manson, in which a court considering whether to grant a motion to
suppress an eyewitness identification must first determine whether the
“identification procedures are overly suggestive,” and, if they are, then
“examine whether the reliability of the identification outweighs the
corrupting effect of the suggestive identification.” Almaraz, 301 P.3d at
252. Referencing Henderson, however, the Idaho Supreme Court held that Idaho
courts must consider system variables when determining the suggestiveness of
the procedure, and then consider estimator variables within the application
of the Biggers factors to determine reliability and admissibility. 301 P.3d
at 252-53; see also State v. Moore, 430 P.3d 1278, 1280 (Idaho 2018)
(applying eyewitness identification reliability test announced in Almaraz).
      Other states have adopted some other factors in the
reliability/admissibility analysis. Vermont has abandoned the Biggers
“witness certainty” reliability factor based on empirical research indicating
that witness certainty is easily corrupted by suggestive procedure. See
State v. Discola, 184 A.3d 1177, 1188–89 (Vt. 2018); see also Commonwealth v.
Gomes, 22 N.E.3d 897 (Mass. 2015) (requiring juries to be instructed on
principles affecting reliability), abrogated on other grounds by
Commonwealth v. Bastaldo, 32 N.E.3d 873 (Mass. 2015) (building
on Gomes regarding application of cross-racial identification instruction);
                                                               (continued. . .)

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     3.      Revised Admissibility Criteria

     We did not adopt New Jersey’s twenty-two factor “system”

and “estimator” reliability factors.           See Cabagbag, 127 Hawaiʻi

at 314, 277 P.3d at 1039.         Instead, we set out thirteen factors,

now reflected in Hawaiʻi Standard Instruction 3.19, that a judge

should consider including in a jury instruction regarding the

reliability of an eyewitness identification.             Factors a judge

should consider in addressing whether an impermissibly

suggestive eyewitness or show-up identification is nonetheless

sufficiently reliable to be admitted into evidence should not

differ from the factors a judge should consider including in a

jury instruction regarding reliability.            We therefore agree with

New Jersey, Utah, and other states that the factors a jury must

consider in evaluating the reliability of an eyewitness or show-

up identification must also be considered by a trial court in

addressing admissibility of an impermissibly suggestive

eyewitness or show-up identification.

     Thus, we prospectively hold that trial courts must, at

minimum, consider any relevant factors set out in the Hawaiʻi

Standard Instructions governing eyewitness and show-up

identifications, as may be amended, as well as any other


(continued. . .)
State v. Lawson, 291 P.3d 673 (Or. 2012) (limiting admissibility of
eyewitness identifications based on rules of evidence).



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relevant factors that may be set out in binding precedent in

addressing whether, under a totality of circumstances, an

impermissibly suggestive eyewitness or show-up identification is

nonetheless sufficiently reliable to be admissible in evidence.

       As this holding sets forth a new rule that expressly

overrules precedent upon which parties have regulated their

conduct, it will only apply prospectively to admissibility

determinations made after the date of this opinion.21

C.     Prospectively, Judges Must Also Consider the Impact of
       Suggestive Procedures as a Part of the Admissibility of
       Determination

       Padilla only required a trial judge to address

suggestiveness as a threshold issue; if an eyewitness

identification was determined to have been procured through an

impermissibly suggestive procedure, Padilla required the trial

court to evaluate five factors under the totality of the

circumstances to determine whether the identification is

nonetheless sufficiently reliable to be admitted in evidence.

21
      See Auld, 136 Hawaiʻi at 256, 361 P.3d at 483 (“The ‘paradigm case’
warranting a prospective-only application of a new rule arises ‘when a court
expressly overrules a precedent upon which the contest would otherwise be
decided differently and by which the parties may previously have regulated
their conduct.’”) (citations omitted); State v. Jess, 117 Hawaiʻi 381, 400-02,
184 P.3d 133, 152-54 (2008) (summarizing our case law on the retroactivity of
new rules); Cabagbag, 127 Hawaiʻi at 317, 277 P.3d at 1042 (holding that a new
rule requiring a jury instruction on eyewitness identification in certain
circumstances would have prospective effect only). Although “judicial
decisions are assumed to apply retroactively,” when this court “announces a
‘new rule,’ then this court may, in its discretion, determine that the
interests of fairness preclude retroactive application of the new rule.”
State v. Ketchum, 97 Hawaiʻi 107, 123 n.26, 34 P.3d 1006, 1022 n.26 (2001).



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Padilla, 57 Haw. at 154, 552 P.2d at 360.          Suggestiveness

itself, however, was not one of the five factors to be

considered by a trial court to determine admissibility.

    As noted earlier, however, various courts, including the

Utah Supreme Court, now also require consideration of whether an

identification was the product of suggestion as a part of a

trial court’s reliability evaluation determining whether an

eyewitness identification should be admitted into evidence.               See

Long, 721 P.2d at 493.      For it is known that human memory, and

therefore reliability, can also be distorted and affected by

suggestive police procedures.        See Henderson, 27 A.3d at 894-95.

In fact, in the 1977 Manson case, decided five years after

Biggers, the United States Supreme Court itself reaffirmed the

Biggers test, but noted that the factors indicating reliability

should be weighed against the “corrupting effect of the

suggestive identification itself.”         Manson, 432 U.S. at 114.

    In this regard, eyewitnesses who receive “a simple post-

identification confirmation regarding the accuracy of their

identification 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.”    Henderson, 27 A.3d at 899 (citations omitted).

Moreover, suggestiveness in police conduct — intentional or

unintentional — may undermine the independence and accuracy of

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the witness’s recollection and subsequent identification.                See

Perry, 565 U.S. at 251 (Sotomayor, J., dissenting) (citation

omitted) (“Our precedents make no distinction between

intentional and unintentional suggestion.          To the contrary, they

explicitly state that ‘[s]uggestion can be created intentionally

or unintentionally in many subtle ways.’”); see also, Gomes, 22

N.E.3d at 915 (discussing impacts of suggestiveness on witness

confidence).    Thus, Alaska has also held that any suggestiveness

in procuring an eyewitness identification — irrespective of

whether it be an “impermissible” or “unnecessary” suggestion —

requires an evaluation of reliability by the court.             See Young,

374 P.3d at 426.

    Therefore, it is clear that suggestive procedures can also

affect the reliability of eyewitness identifications and should

be considered in the admissibility determination.            To counteract

possible effects of suggestive procedures on reliability, we

therefore also prospectively hold that in addressing

admissibility of a suggestive eyewitness or show-up

identification, trial courts must also consider the effect of

the suggestiveness on the reliability of the identification in

determining whether it should be admitted into evidence.




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D.     Prospectively, When Applicable, Juries Must Also Be
       Instructed To Consider the Impact of Suggestive Procedures
       as a Part of the Reliability Determination

       Correspondingly, we hold that when an identification has

been procured through a suggestive eyewitness or show-up

identification procedure or when the eyewitness or show-up

identification is central to the case, the jury must also be

instructed to consider the impact of the any suggestive

procedures on the reliability of the eyewitness or show-up

identification.        Although Hawaiʻi Standard Instruction 3.19A

regarding show-up identification recognizes this by including as

a factor “[w]hether the identification was the result of a

suggestive procedure, including actions taken or words spoken by

police or anyone else to the witness before, during, or after

the identification process,” Hawaiʻi Standard Instruction 3.19

regarding “Eyewitness Testimony” does not, and it should

therefore be amended to also include this language from Hawaiʻi

Standard Instruction 3.19A.22



22
      In addition, in Cabagbag, we noted that an eyewitness’s heightened
confidence regarding the accuracy of an identification may not correlate with
heightened reliability of the identification, and we noted that although
empirical research has also undermined the seemingly common sense notion that
the confidence of the witness is a valid indicator of the accuracy of the
identification, courts and juries continue to place great weight on the
confidence expressed by the witness in assessing reliability. Cabagbag, 127
Hawai‘i at 311, 277 P.3d at 1036. The Utah Supreme Court explicitly rejected
the Biggers “level of certainty” factor based on studies indicating that
suggestive police procedures may influence a witness’s confidence. See Long,
721 P.2d at 490. The Massachusetts Supreme Judicial Court also notes the
impact of suggestiveness on witness confidence. Gomes, 22 N.E.3d at 915.


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    As this holding also sets forth a new rule, it applies

prospectively to events occurring after publication of this

decision, i.e., to jury instructions given after the date of

this opinion.

    E.      Other Considerations

    We also note that a trial court’s ruling that an

identification is admissible does not affect the State’s burden

at trial to prove beyond a reasonable doubt the identity of the

defendant as the perpetrator of the alleged crime.             In this

sense, the judge and the jury may come to differing conclusions

regarding the reliability of an admitted eyewitness

identification.      See Cabinatan, 132 Hawaiʻi at 77, 319 P.3d at

1085 (“[A] trial court may determine that a suggestive show-up

identification is sufficiently reliable to be admissible.

However, the jury is not bound by that determination and is free

to consider the issues of suggestiveness and reliability in

determining whether to credit the identification.”); see also,

Ramirez, 817 P.2d at 778-79 (discussing overlapping but distinct

roles of the judge and jury in determining whether proffered

eyewitness identification is reliable).           By the same token, a

judge in a bench trial who receives evidence of a suggestive

eyewitness identification should consider relevant factors to

evaluate its reliability in determining whether the

identification should be credited or discredited.

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       Finally, we note that factors affecting reliability are not

set in stone.       Reliability is a totality of the circumstances

determination that can encompass more than the factors that are

included in our standard instructions or discussed in this

opinion.      See State v. Kazanas, 138 Hawaiʻi 23, 39, 375 P.3d

1261, 1277 (2016) (citations omitted) (viewing a “‘totality of

the circumstances’ review as sweeping in any circumstance,

without limitation, for the court’s consideration.”).                The

understanding of factors affecting reliability, including

suggestiveness, continues to evolve based on emerging empirical

research.      Therefore, it is also possible that some of the

factors currently contained in our instructions could be amended

or deleted.23      Courts should also consider credible evidence

presented by the parties regarding the reliability of a

particular identification based on scientifically-supported

reliability factors.         See Gomes, 22 N.E.3d at 918 (noting that

provisional jury instructions were not intended to preclude

expert testimony, which may “be important to elaborate on the

generally accepted [reliability] principles in a model

instruction and to explain how other variables relevant to the

particular case can affect the accuracy of the

identification.”); see also, Clopten, 223 P.3d 1103, 1108-15

23
      See, e.g., the discussions regarding the “witness certainty” factor in
notes 15, 20, and 22, supra.


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(discussing expert testimony as an effective means of assisting

jurors with determining eyewitness identification reliability).

                             V.    Conclusion

    As explained above, however, the circuit court did not err

in finding Laraway’s show-up identification reliable under the

Padilla test in place at the time, and therefore did not err in

denying Kaneaiakala’s motion to suppress.          Accordingly, the

ICA’s November 24, 2017 Judgment on Appeal, filed pursuant to

its November 7, 2017 SDO, is affirmed.

Michael J. Park                           /s/ Mark E. Recktenwald
for petitioner
                                          /s/ Paula A. Nakayama
Loren J. Thomas
for respondents                           /s/ Sabrina S. McKenna

                                          /s/ Richard W. Pollack

                                          /s/ Michael D. Wilson




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