HSC Abandons Rigid Factors for a Totality of the Circumstances Approach in Evaluating Eyewitness Testimony


State v. Kaneaikala (HSC October 1, 2019)
Background. Bronson Kaneaiakala was charged with one count of burglary in the first degree. The key to the prosecution’s case was the testimony of Mari Laraway. Laraway was walking with her son on Date street from their apartment to her car when she saw a man crouching under a window of a ground-floor apartment. When she got to her car she saw the men entering the apartment through a window. It was in the middle of the day in January. Laraway called 911. Police officers found Kaneaiakala naked in the laundry room of the apartment building with items missing from an apartment. He was arrested. Two-and-a-half hours later Laraway met the officers on the street outside the building. He was shirtless, h andcuffed, and standing next to a police car surrounded by police officers. Laraway looked at Kaneaiakala and told the officers she was “almost positive” that that was the man she saw.

Kaneaiakala filed a motion to suppress the identification on the grounds that it was impermissibly suggestive and in violation of Kaneaiakala’s due process rights. Judge Shirley M. Kawamura of the circuit court agreed that the police identification procedures in this case were impermissibly suggestive, but the identification was nonetheless reliable. Laraway testified at trial and Kaneaiakala was found guilty as charged and was sentenced to ten years imprisonment with a mandatory minimum of three years and four months. He appealed. The ICA—C.J. Nakamura, J. Leonard, and J. Chan--affirmed.

The Two-Part Test to Determine Admissibility of Identification Testimony. Due process of law is violated whenever the procedure to used to obtain eyewitness identification is “unnecessarily suggestive and conducive to irreparable mistaken identification.” State v. Masaniai, 63 Haw. 354, 362, 628 P.2d 1018, 1042 (1981). But not all impermissibly suggestive identification procedures are inadmissible. State v. Malani, 59 Haw. 167, 170, 578 P.2d 236, 238 (1977). The admissibility of impermissibly suggestive identification procedures hinges on the reliability of the identification. State v. Padilla, 57 Haw. 150, 522 P.2d 357 (1976).
From this, a two-step procedure emerges. Eyewitness testimony is excluded from trial when (1) the procedures used to obtain the identification are impermissibly suggestive and (2) the identification itself is not sufficiently reliable.

The First Part—the easy part. The first prong requires the trial court to determine if the procedures used by the police to obtain the identification are “impermissibly suggestive.” This is usually the easy part for the defense. In this case, the prosecution conceded and agreed that this procedure—having Kaneaiakala shirtless, handcuffed, next to a police car, and surrounded by uniformed police officers—was “impermissibly suggestive.” See State v. Bennett, 62 Haw. 59, 66-67, 610 P.2d 502, 507 (1980) (“the practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.”).

The Second Part—a Factor-Based Approach to Determine Reliability. Once the court finds that the police procedure is impermissibly suggestive, the trial court applies five factors: (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. State v. Padilla, 57 Haw. 150, 154, 552 P.2d 357, 360 (1976) (citing Neil v. Biggers, 409 U.S. 188 (1972)).

The HSC later held that when eyewitness identification testimony is admitted, the trial court must instruct jurors about thirteen factors in evaluating the testimony:

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.

HAWJIC Inst. No. 3.19 and State v. Cabagbag, 127 Hawaii 302, 313-314, 277 P.3d 1027, 1038-1039 (2012). The HSC noted later that even if it is admissible, field show-up identifications are inherently suggestive. State v. Cabatingan, 132 Hawaii 63, 76, 319 P.3d 1071, 1084 (2014). And so when it is admitted, the trial judge must tell the jury it is inherently suggestive and afford different factors in evaluating its reliability. HAWJIC Inst. No. 3.19A. Despite these changes in evaluating reliability for the jury, the HSC noted that there were no changes for trial courts as the gatekeeper of the evidence.

The Five Padilla Factors aren’t Enough. The HSC held that the five factors from Padilla are not enough for trial courts when it comes to evaluating the reliability of the identification. The HSC held that trial courts must now, “at minimum, consider any relevant factors set out in the Hawaii Standard Instructions governing witness and show-up identifications, as may be amended, as well as any other 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.”

The HSC moved away from a rigid adoption of factors. The factors are not set in stone. “Reliability is a totality of the circumstances determination that can encompass more than the factors that are included[.]” The HSC encouraged trial courts to consider scientifically-supported reliability factors presented by the parties.
“The 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). The HSC observed that in the five decades since Justice Brennan made that observation, the science of human memory “has advanced even further, and it has become widely accepted that unreliable eyewitness identifications are the leading cause of wrongful convictions.”

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