The so-called “Telfaire instruction” (from U.S. v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972)) is the most commonly used jury instruction on eyewitness ID in U.S. courts, aimed at alerting jurors to the potential pitfalls of eyewitness evidence. Unfortunately, it is based directly on the flawed and outdated criteria for assessing the reliability of eyewitness evidence set forth in Neil v. Biggers in 1972, which was decided before the majority of eyewitness research now available was conducted, when the entire field was in its infancy. As a result, the instruction often backfires, causing jurors to rely even more heavily on shaky eyewitness testimony, rather than serving its intended purpose of sensitizing them to the factors that tend to make it unreliable.
It opens as follows:
Are you satisfied that the identification made by the witness subsequent to the offense was the product of his own recollection? You may take into account both the strength of the identification, and the circumstances under which the identification was made.
Here’s the first problem. When a judge instructs a jury to rely on the “strength of the identification,” she asks them to consider the confidence of the witness in assessing his or her accuracy. Yet it is well-established among experts that a witness’s confidence is “a dubious indicator of eyewitness accuracy even when measured at the time an identification is made.” See, e.g., Steven Penrod & Brian Cutler, Witness Confidence and Witness Accuracy: Assessing Their Forensic Relation, 1 Psychol., Pub. Pol., & L. 817 (1995). According to the same article, the more emphasis that is placed on the Telfaire instruction, the more jurors tend to credit eyewitness testimony. That is, “the instruction produced a credulity rather than a skepticism effect.” Id. at 833.
The Telfaire instruction continues:
You may also take into account that an identification made by picking the defendant out of a group of similar individuals is generally more reliable than one which results from the presentation of the defendant alone to the witness.
There’s more trouble here. This is true if and only if the lineup is conducted in accordance with best practices, and given that rigid criteria are applied in adhering to the “similar” requirement. Lineup members can quite easily pass a broad interpretation of the “similar” test, by, for example, all belonging to the same race. But the requirements of a good lineup are far more subtle than a generic “similarity” requirement, which juries are not equipped to judge without insight from the research. And as Gary Wells has pointed out, a bad lineup can have the effect of pointing a giant finger at the suspect, while giving the witness heightened (though false) confidence because she “picked” him from a group.
The problems with Telfaire are apparent, and defense lawyers have been urging trial courts to abandon it for some time. As an alternative, researchers recommend detailed instructions that are informed by the findings of social scientists over the last 35 years, since the Biggers factors were identified by the Supreme Court with no scientific basis.
These tailored instructions should include, where applicable, instructions on the cross-race effect, the detrimental effects of stress on eyewitness memory, the weapon-focus effect, the absence of a reliable correlation between confidence and accuracy, and lineup procedures that have been shown to make an identification more or less reliable.
But scientifically accurate jury instructions are not enough. To properly sensitize jurors to the problems with eyewitness testimony and to begin to curb the nationwide wrongful conviction problem due to over-reliance on bad eyewitness evidence, expert testimony is critical. In fact, according to the recent Copeland ruling by the Supreme Court of Tennessee, expert testimony is the only reliable method to ensure that jurors have the necessary tools to assess eyewitness evidence accurately. State v. Copeland, 2007 WL 1498396, *11 (“Research over the past 30 years has shown that expert testimony on memory and eyewitness identification is the only legal safeguard that is effective in sensitizing jurors to eyewitness errors.”).
It’s time to stop misinforming juries based on the antiquated, unscientific musings of an old Court, and to start letting science into the courtroom at every phase of trial. The Constitution demands it, and the rights of the wrongfully accused depend on it.