Fresh Eyes: Young v. State's New Eyewitness Identification Test and Prospects for Alaska and Beyond

• Publication year: 2018

§ 35 Alaska L. Rev. 41. FRESH EYES: YOUNG V. STATE'S NEW EYEWITNESS IDENTIFICATION TEST AND PROSPECTS FOR ALASKA AND BEYOND

Alaska Law Review
Volume 35, No. 1, June 2018
Cited: 35 Alaska L. Rev. 1

FRESH EYES: YOUNG V. STATE'S NEW EYEWITNESS IDENTIFICATION TEST AND PROSPECTS FOR ALASKA AND BEYOND

Savannah Hansen Best ^[*]

This Note evaluates recent developments in Alaska's eyewitness identification admissibility doctrine under the 2016 case Young v. Alaska. For the past four decades, federal and most state courts have relied on the Supreme Court's 1977 ruling in Manson v. Brathwaite, which identified five admissibility factors- known as the "Biggers factors"-for establishing the reliability of eyewitness identifications made under the influence of unnecessarily suggestive police procedures ("systemic variables"). In recent decades, however, social and psychological science has demonstrated the flaws in the five Biggers factors as reliability indicators and the impact of non-suggestive circumstantial (or "estimator") variables on eyewitness identification reliability. In Young, Alaska joined New Jersey and Oregon as the third state to break from Brathwaite, employing a new and evolving admissibility test with scientific support, consideration of both systemic and estimator variables, and a call for corresponding jury instructions.

In 2016, the Alaska Supreme Court broke step with nearly forty years of established criminal procedure through its decision in Young v. Alaska, ^[1] adopting a new test for the admission of eyewitness identifications. In Young, Alaska opened pre-trial hearings on the reliability of eyewitness identifications to evidence and consideration of both systematic and circumstantial flaws that may affect those identifications. ^[2] Until recently, both federal and state courts, following the United States Supreme Court's 1977 decision in Manson v. Brathwaite, ^[3] have employed a narrow definition what constitutes a suggestive procedure and set aside concerns about reliability even when faced with clearly manipulated identifications. ^[4] Young looks squarely at the unreliability of eyewitness identifications and suggests new and greatly improved mechanisms for assessing it. In doing so, Alaska aligns itself with other states that have drawn on recent social science to update the court's treatment of problematic eyewitness identifications. ^[5]

Young carefully confronts and-where appropriate-uproots longstanding conceptions about the reliability of eyewitness identifications, accounting for modern scientific insights about the malleability of such identifications. For example, careful study has helped identify the difference between system variables-suggestive influences manufactured by the state-and estimator variables-circumstantial factors which internally influence eyewitnesses and may also lead to flawed identifications. ^[6] Following the lead of other state courts that have departed from Brathwaite, Young incorporates numerous psychological and sociological studies in creating additional procedural steps that address system variables, while calling for further development of guidelines that can combat estimator flaws. ^[7] For instance, Young created an additional procedural step that uses evidentiary hearings to address system and estimator variables. ^[8] While this step does not altogether eliminate the various dangers that eyewitness identification flaws create, ^[9] it does effectively shift the focus from a myopic procedural view of the benefits of eyewitness identifications to a broader appreciation of the positive and negative impacts of such evidence on criminal trials. ^[10] Although Alaska is not the first state to depart from the Brathwaite doctrine and adopt such a test, ^[11] this Note looks at Young's innovation in Alaskan criminal procedure and suggests that other states should consider if such a break from historical doctrine could also serve their criminal justice systems well and more closely align with their state constitutional guarantees of due process.

The Alaska Supreme Court's decision in Young builds on the decisions of other state courts that have broken with federal jurisprudence. While the federal courts have focused on a narrow concern with police suggestiveness, as reinforced in 2012 by the Supreme Court in Perry v. New Hampshire, ^[12] Young broadens the focus in Alaska by taking into account recent trends in other states, advanced social science on suggestiveness and circumstantial reliability factors, and the often weighty impact of flawed eyewitness identifications in wrongful convictions. ^[13] Basing its holding on these doctrines and scientific progress, the Alaska Supreme Court has created a flexible, adaptable method for protecting criminal proceedings from many of the corrupting effects of unreliable eyewitness identifications. Young not only forges a path forward for Alaska but also serves as a beacon of progress for states in the lower forty-eight still in need of comprehensive procedural reform beyond the Brathwaite and Perry precedents. ^[14]

I. THE JURISPRUDENTIAL BACKGROUND

A. The Brathwaite Doctrine

Modern federal eyewitness identification jurisprudence-which the majority of states still follow-stems from the Supreme Court's 1977 case, Manson v. Brathwaite, which considered the issue of excluding suggestive eyewitness out-of-court identifications from criminal trials under the Fourteenth Amendment's Due Process Clause. ^[15] In that case, Nowell Brathwaite was charged with, and convicted of, possession and sale of heroin in Connecticut state court. ^[16] The prosecutor tied Brathwaite to the heroin exclusively through an identification made by an undercover state trooper, who had purchased drugs from a man behind an apartment door that had been opened twelve to eighteen inches. ^[17] After the purchase, the trooper returned to police headquarters and spoke with other officers, where he described the seller's appearance. ^[18] One of those other officers went to the police's records department and retrieved a photograph of Brathwaite, who he suspected might be seller. ^[19] The trooper who made the purchase identified Brathwaite based on review of that single photograph, rather than a photo array, and identified Brathwaite in court eight months later. ^[20]

The district court considered two constitutional issues: whether the police used a suggestive tactic to obtain the out-of-court identification, and if so, whether that suggestive tactic, under the totality of the circumstances, led to a "substantial likelihood of irreparable misidentification." ^[21] Three eyewitness identification doctrines promulgated by the Supreme Court laid the main foundation for Brathwaite's analysis of the admissibility of the undercover agent's identification and, more broadly, the admission standard still employed in federal courts today: Stovall v. Denno, ^[22] Simmons v. United States, ^[23] and, perhaps most significantly, Neil v. Biggers. ^[24]

The first of these cases, Stovall, opened the door to the possibility of exclusion for identifications obtained through police procedures that are unnecessarily suggestive. ^[25] However, its holding by no means provided for automatic exclusion whenever an identification passed the unnecessarily suggestive threshold. ^[26] Stovall imposed a totality of the circumstances test on eyewitness identifications subject to suggestiveness to determine the permissibility of admission. ^[27] Before allowing the petitioner in Stovall-suspected of stabbling the witness after killing her husband-time to retain counsel, the police escorted him into the witness's hospital room for identification. ^[28] Although individually presenting a suspect to a witness for identification is and was, at the time Stovall arose, a widely-condemned practice, the Court said that the "imperative" nature of the witness's identification, given the circumstances, outweighed the concerns about suggestiveness surrounding the identification. ^[29] The Supreme Court found the admission of the identification therefore did not violate the petitioner's right to due process, ^[30] as "a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it," and the necessity of the identification heavily factored into that equation. ^[31]

Brathwaite also built on the holding of Neil v. Biggers, decided five years after Stovall, which examined the reliability of an eyewitness identification procured from a show up (where officers bring a suspect back to the crime scene to be identified by witnesses there). ^[32] The Biggers Court inquired whether, "under the 'totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive," ^[33] and announced five factors to help determine the reliability of an eyewitness identification made under suggestive conditions. ^[34] The factors were:

[T]he opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. ^[35]

By limiting the scope of the inquiry to the relationship between suggestiveness by police and misidentification, Biggers concluded that if the identification was reliable under the stated...