Article Do You See What I See Part Ii: Litigating Utah Rule of Evidence 617

• Publication year: 2021
• Pages: 18

Article Do You See What I See Part II: Litigating Utah Rule of Evidence 617 No. Vol. 34 No. 3 Pg. 18 Utah Bar Journal June, 2021

May, 2021

Louisa M. A. Heiny, J.

In Part I of Do You See What I See?, we examined the factors Utah courts use to determine the reliability of eyewitness identifications, as well as the science underpinning Utah Rule of Evidence 617. Louisa M.A. Heiny, Do You See What I See? The Science Behind Utah Rule of Evidence 617, 34 Utah B. J. 34 (Mar./Apr. 2021) [hereinafter Do You See What I See? Part I]. Part II considers best practices in Rule 617 litigation, including the use of motions in limine to suppress eyewitness identification evidence, cross-examination of eyewitnesses, when and how to include expert opinions and testimony, and the role of jury instructions to help jurors gauge the reliability of eyewitness identification.

EYEWITNESS IDENTIFICATION IN PRETRIAL LITIGATION

There are three issues counsel should address in deciding when and how to litigate Rule 617: whether and when to file pretrial motions, the type of motion to file, and whether to hire an expert in support of those motions.

Strategy and Timing

While Rule 617 provides a means of challenging eyewitness identification pretrial, not every case with an eyewitness identification will be amenable to the challenge. Attorneys should assess several issues before filing pretrial motions challenging an eyewitness identification, including how crucial the eyewitness identification will be to the prosecution’s case, which law enforcement agency obtained the identification, the agency’s standard protocols, and the procedure used to elicit the identification. Where an agency followed a standard best practices protocol and both the identification and procedure used to elicit the identification appear facially valid, “then [don’t] waste your time [or] the court’s time, and your client’s money for that matter, challenging something that appears to be… – from an admissibility…standpoint – solid.” Louisa M. A. Heiny and the Honorable Richard McKelvie, University of Utah S.J. Quinney College of Law Continuing Legal Education Series, Do You See What I See? The Science and Law of Eyewitness Identifications (Part 2), YOUTUBE (Jan. 11, 2021), https://www.youtube.com/watch?v=y97LzFsJBzM [hereinafter Science and Law CLE]. Instead, concentrate resources on trial strategy and the use of eyewitness experts at trial.

Where an eyewitness identification is amenable to a pretrial challenge, it is crucial that attorneys file pretrial motions quickly. Eyewitness identifications can easily be

polluted…by a subsequent introduction of the defendant or the suspect to the [eyewitness]. Because then it becomes much more difficult to…ascertain whether the in-court identification is a product of the witness’s recollection of the offense itself or their recollection of some proceeding in which they were shown either a photograph of the suspect/ defendant or actually presented to them in person.

Id. These kinds of “introductions” may occur at any time and are often outside the control of counsel. A witness who sees the defendant at a pretrial hearing, watches a news report, or gives a media interview is often getting information about the suspect that the witness may unconsciously fold into the original memory. Id.

For example, in one recent case the eyewitness initially identified the defendant in a photographic lineup “with eighty to ninety percent certainty.” State v. Wright, 2021 UT App 7, ¶ 17, 481 P.3d 479. Afterward, and prior to the preliminary hearing, the “[e]yewitness had apparently downloaded a photo of [the defendant] that had been circulated by the media after his arrest. [The e]yewitness then digitally superimposed various wigs on the photo until he came up with an image that he believed matched the shooter.” Id. The eyewitness later identified the defendant at a preliminary hearing, “with one hundred percent certainty.” Id. Early identification of a problematic eyewitness identification can allow the court to quickly and accurately rule on motions in limine, engage in a Rule 617 analysis based on the original identification without needing to detangle the original identification from later exposure, and make any other appropriate pretrial orders addressing the eyewitness.

Motions in Limine

There are three possible motions in limine under Rule 617, any of which may prevent the introduction of potentially unreliable eyewitness testimony: (1) a motion in limine to suppress an eyewitness identification for lack of reliability; (2) a motion in limine challenging the procedure used by law enforcement in eliciting the eyewitness identification; and (3) a motion to suppress evidence based on constitutional doctrines.

Motions in Limine to Suppress an Eyewitness Identification for Lack of Reliability

The most straightforward use of Rule 617 is through a motion in limine to exclude an eyewitness identification at trial. The party challenging the eyewitness identification bears the burden of proof and must show the court that “a factfinder…could not reasonably rely on the eyewitness identification.” Utah R. Evid. 617(b). Under these circumstances, the court is required to exclude the evidence. Id. When determining the reliability of the identification, the court may consider expert testimony on reliability, as well as the nine factors listed in Rule 617(b)(1)–(9). These nine factors, called “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.” State v. Lujan, 2020 UT 5, ¶ 37, 459 P.3d 992 (citations omitted). The nine factors are:

(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, and the science...