I usually don't read the unpublished opinions. There are too many of them, they typically lack a ton of reasoned analysis, so I'll leave 'em to the parties.
But I happened to look at this one today. Not because I cared (or knew anything) about the case. But just because the Ninth Circuit today didn't list any published opinions -- yet omitted the "No Opinions Filed Today" blurb that it uses on every other such day -- so just took a quick look to make sure that the Circuit was still hard at work.
And, once I read the thing -- it's very short -- I wondered: "Why isn't this opinion published?"
Here's the relevant part:
The District Court denied Valencia’s request for a Ninth Circuit pattern
eyewitness identification instruction (the “Model Eyewitness Instruction”) and, in
doing so, did not abuse its discretion. In its final jury instructions, the District Court
discussed Valencia’s identification defense and provided a general witness
credibility instruction. Further, the District Court permitted Valencia to elicit
comprehensive expert testimony on, among other things, eyewitness memory,
memory for the details of events, the ability to pick faces, and suggestibility.
Counsel for Valencia extensively argued the identification defense to the jury based
on this testimony. The jury was thus alerted to potential weaknesses in the
Government’s eyewitness identification evidence. Accordingly, we see no abuse of
discretion in the District Court’s refusal to give the Model Eyewitness Instruction.
While we see no abuse of discretion, we are troubled by the comment to the
Model Eyewitness Instruction that recommends “against the giving of an eyewitness
identification instruction.” Manual of Model Criminal Jury Instructions for the
District Courts of the Ninth Circuit § 4.11 cmt. (2010) [hereinafter MMCJI]. There
is now a robust body of scientific research and evidence that highlights the unique
perils of eyewitness identification testimony as “one of the greatest causes of
erroneous convictions.” Dennis v. Sec’y, Pa. Dep’t of Corr., 834 F.3d 263, 313–45 (3d Cir. 2016).
The Supreme Court has acknowledged the fallibility of eyewitness testimony
and characterized eyewitness instructions as due process safeguards that “warn the
jury to take care in appraising identification evidence.” Perry v. New Hampshire,
565 U.S. 228, 246 (2012); see also id. at 246 n.7 (citing the Ninth Circuit Model
Eyewitness Instruction). Other Circuits have also encouraged the giving of such
instructions, recognizing the inherent dangers of this type of evidence. United States
v. Hodges, 515 F.2d 650, 653 (7th Cir. 1975); United States v. Holley, 502 F.2d 273,
277 (4th Cir. 1974); United States v. Telfaire, 469 F.2d 552, 556–57 (D.C. Cir.
1972). Further, we have previously suggested that the need for heightened jury
instructions should correlate with the amount of corroborating evidence. See United
States v. Masterson, 529 F.2d 30, 32 (9th Cir. 1976) (noting that “[i]n both Holley
and Telfaire a single eyewitness was the only incriminating evidence against the
defendant”). Without disagreeing that courts are given discretion in fashioning jury
instructions, we encourage the Jury Instructions Committee to reassess their
comment as it is inconsistent with legal precedent and growing scientific evidence.
For similar reasons, we are also troubled by the following language in the
comment to the Model Eyewitness Instruction: "The Ninth Circuit has approved the giving of a comprehensive
eyewitness jury instruction where the district court has determined that
proffered expert witness testimony regarding eyewitness identification
should be excluded." MMCJI § 4.11 cmt. This comment seems to suggest that a district court may either
give the Model Eyewitness Instruction or allow expert witness testimony, but not
both. Again, because of the particularly unreliable nature of eyewitness
identification evidence, we encourage the Jury Instructions Committee to make clear
that it is within a court’s sound discretion to provide both safeguards if the facts and
circumstances of the case so require."
I get that even an unpublished opinion can be send to the Jury Instructions Committee. But this discussion seems to me pretty important on the merits. As well as useful to contemporary litigants and judges in the plethora of eyewitness identification cases that happen every day in the district courts.
So I'd publish this one. Something that's far more informative and significant, honestly, than some of the published opinions we see.
