Article, Do You See What I See? The Science Behind Utah Rule of Evidence 617, 0421 UTBJ, Vol. 34 No. 2. 34

AuthorBy Louisa M. A. Heiny
PositionVol. 34 2 Pg. 34

Article, Do You See What I See? The Science Behind Utah Rule of Evidence 617

Vol. 34 No. 2 Pg. 34

Utah Bar Journal

April, 2021

March, 2021

By Louisa M. A. Heiny

In late 1983, a ten-year-old boy named David was kidnapped and raped in Tucson, Arizona. Arizona v. Youngblood, 488 U.S. 51, 52 (1988). At the hospital on the night of the assault, he described his attacker as a black man with one bad eye. He worked with a police sketch artist and later identified his attacker on four different occasions. He identified the defendant twice in successive photo lineups, once in a courthouse hallway while waiting for a preliminary hearing, and twice in consecutive trials. The child’s repeated and consistent identification of his attacker was – like most eyewitness identifications – incredibly persuasive to the jury. It was also – like some eyewitness identifications – absolutely wrong. Eighteen years after the attack, surviving DNA evidence showed that the perpetrator was not the man convicted of the crime but rather a serial rapist serving time in a Texas state prison. See Louisa M. A. Heiny & Amos N. Guiora, Arizona v. Youngblood (Deep Dive Series) (forthcoming 2022).

Eyewitness identifications play a key role in many investigations and are often central to a prosecutor’s case. As Justice Brennan recognized more than forty years ago, “[T]here is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says ‘That’s the one!’” Watkins v. Sowders, 449 U.S. 341, 352 (1981) (Brennan, J., dissenting) (emphasis omitted) (quoting E. Loftus, Eyewitness Testimony 19 (1979)).

At the same time, eyewitness identifications can be tainted, accidentally or purposely, thus tainting the justice system as well. According to the Innocence Project, mistaken eyewitness identifications contributed to about 69% of wrongful convictions in the United States overturned by exculpatory DNA evidence. Alexis Agathocleous, How Eyewitness Misidentification Can Send Innocent People to Prison, the Innocence Project, (Apr. 15, 2020)

There are myriad reasons for this phenomenon, but the primary responsibility lies not with the witness who, like David, is doing the best job possible after great trauma. Instead, the fault lies with a system that fails to recognize, and often amplifies, mistakes and assumptions in the identification process.

Prior to 2019, Utah courts used five “reliability” factors to determine the admissibility of eyewitness identifications. The five factors were: (1) the opportunity of the eyewitness to view the suspect; (2) the degree of attention paid to the suspect; (3) the witness’s capacity to observe the event; (4) the degree of spontaneity and consistency of the eyewitness testimony thereafter; and (5) the nature of the event being observed. State v. Ramirez, 817 P.2d 774, 781 (Utah 1991). In 2019, however, Utah became an early adopter of a new rule of evidence designed to increase the reliability of eyewitness identifications presented to juries. Utah Rule of Evidence 617 “ensures that when called upon, a trial court will perform a gatekeeping function and will exclude unreliable eyewitness identification evidence in a criminal case.” Utah R. Evid. 617 advisory committee note. The starting point for determinations of eyewitness identification admissibility is now Rule 617. State v. Lujan, 2020 UT 5, ¶ 4, 459 P.3d 992.

Rule 617 serves a number of functions. First, it requires that the court exclude evidence if a factfinder “could not reasonably rely on the eyewitness identification.” Utah R. Evid. 617(b). Second, it places the burden on the party challenging the evidence to make the necessary showing of unreliability. Id. Third, it sets out factors that the court may use in determining reliability, including those that apply in all cases and those that apply specifically to lineups, photo arrays, and showups. Id. R. 617(b)–(c). Fourth, it sets parameters for the admission of photographs. Id. R. 617(d). Finally, it sets out the role of expert witnesses and jury instructions in helping the court and the jury assess the reliability of eyewitness identifications. Id. R. 617(e)–(f). This article examines the factors courts may use in determining reliability, as well as the science underpinning the Rule. An upcoming article will discuss litigation at various trial stages under Rule 617.


In all cases involving challenged eyewitness identifications, courts may consider nine estimator variables. Estimator variables are “factors connected to the event, witness, or perpetrator - items over which the justice system has no control” but which “may affect the reliability of an eyewitness account.” Lujan, 2020 UT 5, ¶ 37. They include (among others) the viewing conditions at the time of the event (distance, lighting, etc.), the amount of stress (or duress) the witness was under, whether there was a weapon that the witness focused on, witness characteristics (age, impairment, etc.), perpetrator characteristics (like age and race, given that witnesses are better at identifying persons of their own age and race), and factors affecting memory decay. Id.

Thus, Rule 617 directs judges to consider: (1) Whether the witness had an adequate opportunity to observe the suspect committing the crime;

(2) Whether the witness’s level of attention to the suspect committing the crime was impaired because of a weapon or any other distraction;

(3) Whether the witness had the capacity to observe the suspect committing the crime, including the physical and mental acuity to make the observation;

(4) Whether the witness was aware a crime was taking place and whether that awareness affected the witness’s ability to perceive, remember, and relate it correctly;

(5) Whether a difference in race or ethnicity between the witness and suspect affected the identification;

(6) The length of time that passed between the witness’s original observation and the time the witness identified the suspect;

(7) Any instance in which the witness either identified or failed to identify the suspect and whether this remained consistent thereafter;

(8) Whether the witness was exposed to opinions, photographs, or any other information or influence that may have affected the independence of the witness in making the identification; and

(9) Whether any other aspect of the identification was shown to affect reliability.

Utah R. Evid. 617(b)(1)–(9).

Estimator variables have been extensively researched over the past fifty years by psychologists, law...

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