Eyewitness Identifications Require Special Jury Instruction Upon Request of Defense (from now on)

State v. Cabagbag (HSC May 17, 2012)

Background. Steven Cabagbag was charged with unauthorized control of a propelled vehicle and theft in the second degree. At trial, employees of a waterproofing company testified that one of their work trucks was stolen. Fifteen days later, Officer Eutiquito Tomimbang was on patrol in Pearl City. He went to investigate an open gate near the Newtown Recreation Center at around 1:00 in the morning. They went to the area and saw a work site that may have been burglarized. At around 1:40 a.m., Officer Tomimbang testified that he was standing guard at the worksite when he saw a truck driving up the street. Officer Tomimbang testified that even though he did not shine his flashlight into the inside of the truck, he got a good look at the driver. From about 60 to 70 yards from the truck, he saw a man get out of the truck and walk toward the worksite. The man closed the gate and walked toward Officer Tomimbang. When he saw the officer, the man froze, then took off running. Officer Tomimbang testified that he saw the man's face. He identified Cabagbag as the man he saw that morning. The man was ultimately arrested. The jury found Cabagbag guilty as charged and he was sentenced to five years of probation. On appeal, Cabagbag argued that the circuit court plainly erred in failing to provide a specific instruction regarding eyewitness identification. The ICA affirmed.

Specific Jury Instruction Required when Identification is Central to the Case and at the Request of the Defendant. Prior to this case, it was left to the sound discretion of the trial court in giving a specific jury instruction regarding eyewitness identification. State v. Padilla, 57 Haw. 150, 162, 552 P.2d 357, 365 (1976); State v. Pahio, 58 Haw. 323, 331-32, 568 P.2d 1200, 1206 (1977); State v. Okumura, 78 Hawai'i 383, 404-05, 894 P.2d 80, 101-02 (1995);  State v. Vinge, 81 Hawai'i 309, 316-17, 916 P.2d 1210, 1217-18 (1996).

The HSC re-examined the deference it afforded trial courts. It examined several cases from other jurisdictions that have held that when eyewitness testimony is a key or central issue to the case, a specific instruction should be given. State v. Warren, 635 P.2d 1236 (Kan. 1981); State v. Long, 721 P.2d 483 (Utah 1986); Commonwealth v. Rodriguez, 391 N.E.2d 889 (Mass. 1979); State v. Cotto, 865 A.2d 660 (N. J. 2005); State v. Henderson, 27 A.2d 872, 926 (N. J. 2011). The HSC also examined the large body of scientific and empirical evidence demonstrating the weakness and unreliability of eyewitness testimony.

The empirical data and the wave of decisions across the country, persuaded the HSC to break with past precedence. No longer can it be "assumed that juries will necessarily know how to assess the trustworthiness of eyewitness identification evidence." Thus, "when eyewitness identification is central to the case, circuit courts must give a specific jury instruction upon the request of the defendant to focus the jury's attention on the trustworthiness of the identification. A circuit court may also give a specific eyewitness instruction, in the exercise of its discretion, if it believes the instruction is otherwise warranted in a particular case."

The Instruction Itself . . . The HSC provided an instruction that would address the concerns regarding reliability. This is a rare breaking of the fourth wall for the HSC. It specifically noted that this instruction did not intend to preclude courts and the Committee on Pattern Criminal Jury Instructions from commenting, modifying, or otherwise tinkering with it. Here's the instruction:

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 heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave accurate testimony.

In evaluating identification testimony, consider the following factors:

The opportunity of the witness to observe the alleged criminal act and the perpetrator of the act;

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

The witness' ability, following the observation, to provide a description of the perpetrator of the act;

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

The cross-racial or ethnic nature of the identification;

The witness' capacity to make an identification;

[Evidence relating to the witness' ability to identify other alleged perpetrators of the criminal act;]

[Whether the witness was able to identify the alleged perpetrator in a photographic or physical lineup;]

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

Whether the witness had prior contacts with the alleged perpetrator;

The extent to which the witness is either certain or uncertain of the identification;

Whether the witness identification is in fact the product of his own recollection;

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

The bracketed portions, noted the HSC, would only be given if applicable.

When to Give the Instruction. A majority of the justices limited the new rule (1) only when it is requested by the defense and (2) prospectively. There are times, it reasoned, when the defendant "may legitimately conclude, as a matter of trial strategy, that the instruction is not necessary or appropriate in a given case." The majority found support for limiting the instruction only upon request of the defense from courts of other jurisdictions. State v. Ledbetter, 881 A.2d 290, 318 (Conn. 2005). The majority also held that this new instruction applies prospectively and it had no retroactive effect. Thus, in Cabagbag's case, the HSC examined the case under the old rule. Although identification was a key issue to the case, the given instructions adequately apprised the jury of the need to consider the weaknesses of eyewitness identification. Cabagbag's conviction was affirmed.

Justice Acoba's Dissent. Justice Acoba dissented with the majority on the limitations on the new rule. Justice Acoba emphasized that trial courts have a duty to ensure that juries are properly instructed. State v. Nichols, 111 Hawai'i 327, 336 n. 5, 141 P.3d 974, 983 n. 5 (2006). So even if the defense does not request the instruction, the trial court should provide it anyway. For Justice Acoba, foregoing the instruction in the interest of strategy undermines the truth-seeking function of the jury. Justice Acoba also took issue with the limitation of prospective applicability in general and the harmlessness in not having the instruction in Cabagbag's case.