|
You can of the Alaska Court of Appeals opinions.
|
|
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
FRANK MOSES TEGOSEAK,
Appellant, Court of Appeals No. A-
10074
v. Trial Court No. 3AN-
05-5489 Cr
STATE OF ALASKA,
Appellee. O P I N I
End of Caption O N
No. 2248 December 11, 2009
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Michael L.
Wolverton, Judge.
Appearances: Tracey Wollenberg, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant. Eric
A. Ringsmuth, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Richard A. Svobodny, Acting
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
MANNHEIMER, Judge.
BOLGER, Judge, concurring.
Following a jury trial, Frank Moses Tegoseak was
convicted of felony driving under the influence and driving with
a suspended license.1 Both the grand jury that indicted Tegoseak
and the trial jury that convicted him heard the testimony of
Robert Maestas, a private citizen who observed a Ford Bronco
being driven in an obviously impaired manner, and who later
identified Tegoseak from a photographic lineup as having driven
the Bronco.
In pre-trial motions, Tegoseak argued that the
photographic lineup was conducted in an unduly suggestive manner
and that the superior court should therefore suppress Maestass
identification of Tegoseak as the driver. The superior court,
employing the test set forth in Manson v. Brathwaite, 432 U.S.
98, 97 S.Ct. 2243, 53 | L.Ed.2d 140 (1977 | ), concluded that Maestass identification of Tegoseak was reliable despite the arguable flaws in the way the photo lineup was conducted. The court therefore denied Tegoseaks motions and allowed evidence of the identification to be admitted at Tegoseaks trial. |
| We agree with Tegoseak that there are troublesome aspects to the photographic lineup procedure in this case. In addition, we are aware that scientific research conducted during the past thirty years has cast doubt on the analysis set forth in Manson v. Brathwaite raising questions as to whether that analysis is a valid method for ascertaining whether a photographic lineup has yielded a reliable identification. Nevertheless, we conclude that any potential suggestiveness in the photo lineup in Tegoseaks case was harmless beyond a reasonable doubt, and we therefore affirm Tegoseaks convictions. | |
Underlying facts
On June 19, 2005, Robert and Michelle
Maestas2 were driving around the Anchorage area,
looking for a house to purchase. They observed a Ford
Bronco that was traveling slower than normal. While
they watched, the Bronco swerved and repeatedly changed
lanes without apparent cause.
The Maestases could see three occupants in
the vehicle: two males in the front seat, and another
person in the back seat. Using her cell phone,
Michelle Maestas called the Anchorage Police dispatcher
to report this vehicle because she and her husband
thought that the driver was drunk.
After making this call to the police, the
Maestases temporarily lost sight of the Bronco, but
they came upon it again a few moments later. It was
still being driven in an erratic manner. The Maestases
then decided to follow the car. Michelle Maestas
called the Anchorage police once more, and this time
she remained on the line to assist officers in locating
the Bronco as it continued to travel through Anchorage.
The Maestases followed the Bronco to the
parking lot of Bells Nursery on DeArmoun Road, where
the Bronco stopped. Robert Maestas parked the couples
car near the nursery parking lot in order to keep an
eye on the Bronco while they waited for the police to
arrive.
While the Bronco was parked in the Bells
Nursery parking lot, Mr. and Mrs. Maestas saw the
driver and the front-seat passenger emerge from the
Bronco and swap places. While these two men were
outside the vehicle, Robert Maestas was able to observe
them.
Maestas described both males as having dark
or black hair. He described the man who was originally
driving the Bronco (and who switched to the passenger
seat in the nursery parking lot) as having a slender
build and wearing a black shirt. Maestas described the
other man (that is, the man who was originally in the
passenger seat of the Bronco, and who began driving the
vehicle after the switch in the nursery parking lot) as
a heavier set gentleman who was wearing a white ... T-
shirt.
After the two men switched places in the
Bronco, the Bronco left the nursery parking lot and
headed east on DeArmoun Road. Just after the Bronco
started up DeArmoun, Anchorage Police Officer Gerald
Asselin arrived and conducted a traffic stop of the
vehicle.
When Officer Asselin stopped the Bronco, he
found that there were two men and one woman inside the
vehicle. The man driving the vehicle was wearing a
white T-shirt, and the male passenger was wearing a
black shirt. The driver was later identified as Edgar
Henry, while the passenger was identified as Tegoseak.
Because his dispatcher had informed him that
the driver and passenger had just switched places,
Officer Asselin questioned both men about who had been
driving the Bronco before the vehicle stopped at Bells
Nursery. Based on the mens responses (both verbal and
non-verbal), Asselin concluded that Tegoseak had been
driving the vehicle prior to the stop at Bells. In
particular, as Asselin later testified, Edgar Henry
told the police that he had taken over driving the
Bronco after the stop at Bells Nursery because Tegoseak
had been driving so poorly that he thought Tegoseak was
going to kill them.
Officer Asselin conducted field sobriety
tests of both Henry and Tegoseak. Based on the results
of these tests, the officer concluded that he had
probable cause to arrest both men. A subsequent breath
test showed that Tegoseak had a blood alcohol content
of .227 percent (in other words, just under three times
the legal limit).3
One week later, on June 26th, Officer Asselin
contacted Robert and Michelle Maestas and asked them to
view a photographic lineup to see if they could
identify the two men in the Bronco. This photo lineup
was comprised of two separate arrays of six photographs
each. The two arrays were composed so that each of
them contained a photograph of one of the men in the
Bronco. (The first array contained a photograph of
Edgar Henry in position number 5; the second array
contained a photograph of Frank Tegoseak in position
number 5.)
Asselin showed the photo arrays to Mr. and
Mrs. Maestas separately. He told them that he would
show them two photo arrays, and he asked them to let
him know if they recognize[d] any of those individuals
as being involved. When Asselin showed the first array
to Mr. and Mrs. Maestas, he reminded them that, if they
did not recognize anyone from the first array of six
photographs, he had a second set of photographs to show
them.
After Michelle Maestas examined the two
arrays of photographs, she picked one person from among
the twelve photographs as having been in the Bronco
but that person was neither Henry nor Tegoseak.
After Michelle Maestas failed to identify
either Henry or Tegoseak, Officer Asselin showed the
photographs to Robert Maestas.
When Robert Maestas was shown the first array
of six photographs, he selected three people from this
array as the possible occupants of the Bronco. Maestas
told Asselin, [I]t could have been [number] 1 or 3 that
was driving [the Bronco originally], and [number] 5
that was in the passenger seat. ... I think [that],
between 1 and 3, those two [photographs] kind of look
like the driver that we originally pulled up next to.
The three photographs that Maestas selected
were of Edgar Henry and two fillers that is, two
people whose photographs were included, not because the
police suspected that they were connected to this
incident, but rather to fill out the six-photograph
array.
At this point that is, after Maestas had
apparently identified both the original driver and the
original passenger from among the photographs in the
first array Asselin said to Maestas, Let me try to at
least show you [the second array of photographs]; then
you can see the entire compilation of photos. So far,
youve said [that] 1 and 3 [in the first array] could be
the driver. Asselin then showed Maestas the second
array of six photographs.
When Maestas looked at the second array of
photos, he told Asselin that photograph number 5 in
this second array could also potentially be the initial
driver of the Bronco (that is, the man who was driving
before the driver and passenger switched places in the
nursery parking lot). Maestas told Asselin that the
man originally driving the car was either [number] 5 in
[the second array] or [number] 1 in [the first array].
(As we explained above, Tegoseaks picture was number 5
in the second photo array.)
Asselin asked Maestas to memorialize his
identifications on two different Photographic Lineup
forms. These forms (one for each of the two arrays)
apparently had boxes on them that corresponded to the
photographs in the arrays. Asselin asked Maestas to
place a check mark on the boxes that corresponded to
the photographs he had selected.
On the first of these forms (i.e., the form
that corresponded to the first photo array), Maestas
stated that he identified photograph number 5 in the
first array as the man who began driving the Bronco
after the car stopped at the nursery. (As explained
above, this photograph was of Edgar Henry.)
Asselin then handed Maestas the second form
(i.e., the form corresponding to the second photo
array). Although Maestas had told Asselin that he was
uncertain whether the original driver of the Bronco was
photograph number 1 from the first array or photograph
number 5 from the second array, Asselin directed
Maestas to put a check mark in only one box the box
corresponding to photograph number 5 from the second
array.
Asselin invited Maestas to add a handwritten
notation explaining his uncertainty about the
identification. Maestas wrote on the form, When
looking at the photos, both [photograph] #5 on [the
second array] and [photograph] #1 on [the first array]
look similar to the original driver that we ... first
[saw].
However, Officer Asselin added his own
separate notation to this form. In the officers
notation, he indicated that Maestas had made an
identification from the photographs, and that the
person Maestas had identified was Frank Tegoseak (who,
as we explained above, was photograph number 5 in the
second array). Maestas signed this form.
This same ambiguity concerning the nature or
precision of Maestass identification is reflected in
the testimony given by Asselin and Maestas at the
evidentiary hearing.
At the hearing, Asselin testified that he did
not remember the exact exchange between himself and
Maestas, but it was clear to [him], based upon the
[conversation], that [Maestas] identified [photograph]
number 5 [in the second array] as being ... the person
who was originally driving the vehicle. Asselin
conceded that, while he was showing the photographs to
Maestas, there was some conversation ... where
[Maestas] would say, Well, [photograph] number 1 [in
the first array] looks very similar, but [Maestas] came
back to it being [photograph] number 5 [in the second
array].
When Maestas testified at the evidentiary
hearing, he acknowledged that he was hesitant to
positively identify either photograph 1 from the first
array or photograph 5 from the second array because
the two photos look similar, ... and [because it was] a
week [after the incident]. When Maestas was asked
whether he had made a positive identification, he
responded, I wouldnt say it was 100 percent positive;
no.
After hearing this testimony, and after
listening to Officer Asselins tape recording of the
photo lineup procedure, Superior Court Judge Michael L.
Wolverton concluded that the photo lineup procedure was
not unduly suggestive.
In particular, Judge Wolverton found that the
filler photographs were well-selected (in the sense
that the people depicted in these filler photographs
were visually similar to the two suspects). The judge
suggested that this fact (the good selection of
fillers) was potentially the explanation for Robert and
Michelle Maestass difficulty in selecting Henry and
Tegoseak from among the photographs.
Judge Wolverton also concluded that there was
nothing wrong in Officer Asselins act of drawing Robert
Maestass attention to the second array after Maestas
had already declared that the first array contained
photographs of both suspects. The judge found that
Asselin was not trying to suggest that Maestas had
chosen prematurely, or to suggest that the second array
contained a photograph of at least one of the suspects.
Rather, Judge Wolverton found that Asselin was simply
trying to explain the procedure (i.e., the need to
examine both arrays) and to request that Maestas
withhold his final judgement until he had seen all
twelve of the photographs.
Judge Wolverton also concluded that, given
the circumstances of the case, there was essentially no
possibility of a misidentification. The judge remarked
that this might [have been] a different situation if
[the occupants of the Bronco] had not been followed and
[immediately arrested] almost like a hand-off to the
police [but] we know who was in the vehicle [when] it
was stopped, [and the photo lineup] was [merely] a
determination as to ... who was driving when a
determination that was made easier ... because one
[man] was wearing a white shirt and [the other] was
wearing a black shirt.
Tegoseaks claim that his indictment is flawed because
the prosecutor did not inform the grand jury that
Michelle Maestas failed to identify Tegoseak as one of
the men in the Bronco, and that Robert Maestass
identification of Tegoseak was less than certain
Under Alaska law, a prosecutor must inform
the grand jury of exculpatory evidence known to the
government.4 Tegoseak contends that the prosecutor in
his case violated this duty in two ways. First,
Tegoseak argues that the prosecutor was required to
tell the grand jury that Michelle Maestas had not
identified Tegoseak as one of the men in the Bronco
and that, in fact, the only man she identified as
having been in the Bronco was a filler. Second,
Tegoseak argues that the prosecutor was required to
tell the grand jury that Robert Maestass identification
of Tegoseak was less than certain.
For purposes of defining a prosecutors duty
to present evidence to the grand jury, we have defined
the term exculpatory evidence narrowly: it means only
the type of evidence that tends, in and of itself, to
negate the defendants guilt.5 Thus, we have held that
a witnesss failure to identify the defendant as the
perpetrator of the crime, or the fact that a witnesss
post-event description of the perpetrator did not match
the defendant, was not exculpatory evidence, given the
other evidence linking the defendant to the crime.6
For example, in Haag v. State, 117 P.3d 775
(Alaska App. 2005), the defendant (who was white)
argued that the prosecutor violated the duty to present
exculpatory evidence because the prosecutor failed to
inform the grand jurors that a witness to the crime
initially reported that the two perpetrators were
black. Id. at 777-78. We held that, in the context of
the other evidence linking Haag to the crime, the
witnesss description of the perpetrators as black was
not exculpatory: The fact that [the witness] initially
stated that both robbers were black is certainly
something that a defense attorney might use to attack
[the witnesss] later identification of Haag as one of
the robbers. But this is not information that negates
Haags guilt in and of itself. Haag, 117 P.3d at 778
(emphasis added).
In Tegoseaks case, the police responded
quickly to the Maestass report of the Bronco being
driven in an erratic manner, and there is essentially
no doubt that, when the police stopped the Bronco, the
vehicle contained the same people that Michelle and
Robert Maestas had observed minutes before. As Judge
Wolverton noted when he issued his rulings on Tegoseaks
pre-trial motions, there is essentially no possibility
that Tegoseak was misidentified as one of the drivers
of the Bronco.
Given these circumstances, it is extremely
unlikely that the grand jurors decision to indict
Tegoseak would have been altered if they had known that
Michelle Maestas identified another mans photograph in
the photo lineup, or if they had known that Robert
Maestass identification of Tegoseaks photograph was
uncertain. For this reason, either the evidence that
Tegoseak complains of was not exculpatory as that term
is defined in our cases, or the States failure to
apprise the grand jurors of this evidence was harmless.
Tegoseaks claim on appeal, and a preliminary discussion
of the problems that can be encountered in post-crime
eyewitness identification
On appeal, Tegoseak renews his argument that
the photographic lineup procedure was unduly
suggestive, and he further argues that when the facts
of the case are analyzed under the factors set forth in
Brathwaite, this analysis fails to demonstrate that
Robert Maestass identification of him was reliable.
The photographic lineup in this case does not
appear to be overtly suggestive. As Judge Wolverton
noted when he denied Tegoseaks suppression motion, the
ten filler photographs are quite similar to the two
suspects photographs in facial characteristics and hair
style. In other words, Henrys and Tegoseaks
photographs did not stand out from the filler
photographs in such an obvious way as to practically
single out these two men as the suspects.
But even though a photographic lineup may not
be overtly suggestive, the procedure by which the
photographs are selected, the procedure by which a
photo lineup is displayed to a witness, and the
procedure by which the witnesss identification is
elicited, can engender suggestiveness even when this
is not the intention of the officer conducting the
lineup.
Medical researchers have long recognized the
phenomenon that testers influence the persons they are
testing. Even though one might think that a test
subjects physical reaction to an experimental drug or
therapy would remain the same regardless of the mental
attitude or desires of the researchers, the truth is
that the researchers expectations regarding the
experiment do make a difference to the result.
One well-known problem is the placebo effect:
the recognized phenomenon that when a person believes
that they are receiving an effective drug or therapy,
their body will physically react in accordance with
their belief even though the substance or treatment
they are receiving would ordinarily do nothing to
alleviate their condition.
But the placebo effect is compounded by
another difficulty known as the Clever Hans effect.
This is the problem that researchers, because of their
knowledge of the experiment and their expectations
concerning the outcome, can unintentionally influence
the responses of the test subjects by unconscious
signaling, or by small differences in how they interact
with test subjects who are receiving the real drug or
therapy as opposed to a placebo.7
In the late 1980s (that is, approximately ten
years after the Supreme Court issued its decision in
Brathwaite), Professor Gary L. Wells of Iowa State
University noted that photographic lineups could be
affected by these same difficulties that the police
officers who conducted photographic lineups could
unwittingly be influencing the witnesses they were
interviewing. Professor Wells accordingly proposed
that photo lineups (like medical trials) should be
conducted using a double-blind procedure.8 In other
words, (1) the lineup should be conducted by an officer
who does not know which photograph in the lineup
represents the suspect and which photographs are
fillers, and (2) because witnesses will naturally
assume that any photo lineup will contain a photograph
of the person whom the police suspect, the witness must
affirmatively be told that the lineup may not contain a
photograph of the perpetrator.
In his article, The Double-Blind Lineup:
General Comments and Observations (2008),9 Professor
Wells notes that police officers can inadvertently (and
often unconsciously) influence witnesses by such
seemingly innocuous comments as, I noticed you paused
on photograph number 3. Or, when a witness hesitates
between two or three photographs, the officer might say
to the witness, Tell me about photograph 2 directing
the witnesss attention to the photograph that the
officer knows is the suspect, rather than to one of the
fillers. Or, when the witness has picked a filler, the
officer might ask, Is there any other photograph that
stands out to you? a question that obviously would not
be asked if the witness had selected the suspect.
According to Professor Wells, there are
currently close to 200 cases in which (1) the police
identified a person as the suspected perpetrator of a
crime, (2) the suspect was included in a photographic
or live lineup, (3) the witness who viewed the lineup
identified the suspect as the perpetrator, (4) the
suspect was convicted, but (5) post-trial DNA testing
proved that the suspect was innocent.
One of these cases recently received national
publicity through the publication of the book, Picking
Cotton,10 and the related story that aired in March
2009 on the CBS television news show 60 Minutes.11
As described in the 60 Minutes story, in the
summer of 1984, a man broke into Jennifer Thompsons
apartment and raped her at knife-point. During the
attack, Thompson forced herself to stay alert and study
this man carefully his physical characteristics, his
voice, his accent so that, if she survived, she could
make sure that he was convicted and sentenced to
prison. After about half an hour, Thompson tricked the
rapist into letting her get up to fix him a drink; she
then took the opportunity to escape from her apartment
through the back door.
Police Detective Mike Gauldin interviewed
Thompson at the hospital, and he worked with Thompson
to assemble a composite sketch of the rapist. After
the sketch was broadcast, the police started to receive
tips about the crime. One of these tips was about a
young man named Ronald Cotton. Cotton worked at a
restaurant near Thompsons apartment, and he had a
previous conviction for breaking and entering, as well
as a juvenile record for sexual assault.
Three days after the rape, Detective Gauldin
assembled a six-photograph lineup that contained
Cottons picture, and then he called Thompson to come
view the lineup. Thompson studied the photographs for
about five minutes, and then she identified Cotton as
the man who had raped her.
Thompson subsequently picked Cotton from a
live lineup. After Thompson made the live lineup
identification, the police informed her that she had
picked the same man that she previously selected from
the photo lineup. When she heard this, Thompson
remembers thinking, Bingo! I did it right; I did it
right.
Later, Thompson identified Cotton again when
she testified at his trial. Cotton was convicted and
sentenced to life imprisonment plus 50 years.
While in prison, Cotton met a man named Bobby
Poole. Poole looked very similar to Cotton; in fact,
some of the prison stewards mistook them for each
other. Then Cotton heard, from a fellow inmate, that
Poole had admitted raping Thompson. Based on this
information, Cotton received a new trial.
At the new trial, Cottons lawyers summoned
Bobby Poole to court so that Jennifer Thompson could
see him. But when Thompson looked at Poole, she did
not recognize him. Indeed, she felt nothing but anger
toward Cotton and his attorneys. She remembers
thinking, How dare you question me? How dare you
[suggest that I] could possibly have forgotten what my
rapist looked like? ... The one person [I] would
never forget?
Cotton was again convicted. This time, he
received two life sentences.
Seven years later (ten years after the rape),
Cotton watched the O.J. Simpson trial on television and
learned about DNA. He convinced his lawyer to
investigate the possibility of DNA testing. By luck,
the Birmingham, North Carolina police still had the
rape kit, and the kit contained enough viable sperm to
conduct a DNA test. The result: Bobby Poole was
indeed the rapist and Ronald Cotton was innocent.
For people who care about our justice system,
this is a bittersweet tale. A man spent a decade in
prison for a crime he did not commit and yet he was
finally exonerated, and he has even become reconciled
with the woman whose testimony sent him to prison.
Cotton and Thompson are now friends; they co-authored
the book Picking Cotton, which describes the case, and
they are prominent advocates of reform in police
identification practices.
But for the judges and lawyers who administer
and actively participate in the criminal justice
system, this story has a more fundamental and
disquieting aspect. What happened in Ronald Cottons
case lends anecdotal support to the scientific research
that casts doubt on the validity of the Brathwaite
method for assessing the reliability of eyewitness
identifications.
The test established by the Supreme Court in Manson v.
Brathwaite, and how this test relates to the facts of
the Ronald Cotton case
In Brathwaite, the United States Supreme
Court had to decide whether an eyewitness
identification should be suppressed if the
identification procedure was unnecessarily suggestive.
As this Court explained in Anderson v. State, 123 P.3d
1110, 1115 (Alaska App. 2005), the precise issue
confronting the Supreme Court in Brathwaite was
whether, following an unnecessarily suggestive
identification procedure, the witnesss identification
should be automatically suppressed or whether, instead,
the government should be given the opportunity to
demonstrate the reliability of the witnesss
identification despite the undue suggestiveness of the
procedure.
In Brathwaite, the Supreme Court rejected a
rule of per se suppression and instead held that the
witnesss identification would be admissible if the
State could demonstrate the reliability of the
identification under the totality of the circum
stances.12 The Supreme Court defined this phrase,
totality of the circumstances, as encompassing the five
factors that the Court had set forth in an earlier
decision, Neil v. Biggers:13
$ the witnesss opportunity to view the perpetrator
during the crime,
$ the witnesss degree of attention,
$ the accuracy of any prior description given by the
witness,
$ the witnesss level of certainty when making the
identification, and
$ the length of time between the crime and the
witnesss identification.
$ Brathwaite, 432 U.S. at 114, 97 S.Ct. at 2253
(citing Neil v. Biggers, 409 U.S. at 199-200, 93 S.Ct.
at 382).
With the Brathwaite reliability test in mind,
we now return to the facts of the Ronald Cotton case.
One of the crucial events in that case
occurred after Bobby Poole was finally identified as a
suspect in the case and Ronald Cotton was granted a
second trial. At that second trial, Poole was summoned
to court so that Jennifer Thompson would have the
opportunity to view Cotton and Poole together.
As we explained earlier in this opinion,
Thompson spent half an hour in Pooles presence during
the rape. During that half hour, Thompson consciously
paid attention to, and made a point of remembering,
Pooles physical features and the nuances of his voice
and speech, so that she could be sure to identify him
later. Nevertheless, when Thompson saw the two men
together in court, she did not recognize Poole as her
attacker. Indeed, even though the two men apparently
had similar physical features, Thompson did not even
experience any uncertainty. She reaffirmed that Cotton
was the rapist and Cotton was convicted again.
Years later, when the DNA test results
finally proved Cottons innocence, Detective Gauldin
(the detective who conducted the photo lineup) was the
one who went to tell Thompson that Poole was the rapist
and that Cotton was innocent. Thompsons reaction was,
No, that cant be true; its not possible. ... I know
Ronald Cotton raped me. Theres no question in my mind.
Moreover, even after Thompson knew the truth,
her memory of the event remained the same: whenever
she thought about the rape, or dreamed about it, it was
still Cottons face that she saw.
This last aspect of the case is particularly
troubling: the fact that Thompsons false memory of
Cotton as her attacker persisted even after Thompson
knew (intellectually) that Cotton was innocent and that
Poole had committed the rape. This false memory was
clearly the result of the identification procedures
employed during the investigation because Thompson was
not previously acquainted with Cotton, and because she
was in Pooles presence (not Cottons presence) during
the half-hour of the rape. But if the five Brathwaite
factors are applied to this case, it is obvious that a
court would have allowed Thompson to testify and
identify Cotton as her assailant even if the court had
found that the photo lineup was unnecessarily
suggestive.
Thompson had plenty of opportunity (a half an
hour) to view the rapist. And during the attack, she
consciously devoted her attention to the rapist, so
that she would remember his physical characteristics
and voice. Shortly after the rape, when Thompson was
interviewed at the hospital, she worked with the police
to develop a composite drawing of her attacker a
drawing that resembled Ronald Cotton. And when
Thompson was shown the photo lineup three days after
the rape, she declared she was certain that Cotton was
her attacker.
One might conclude that this is simply a rare
and unfortunate instance where application of the
Brathwaite factors would lead a court to admit evidence
of a mistaken identification. But there is another,
more troubling conclusion that could be drawn: that
the Brathwaite factors are inadequate to the task of
sorting reliable identifications from unreliable
identifications.
A photographic lineup is generally conducted
in private between a police investigator and a witness.
As Professor Wells notes in the recent article he co-
authored with Deah S. Quinlivan concerning the validity
of the Brathwaite factors, when a police investigator
conducts a photographic lineup, the investigator
interacts directly with the witness: in effect, they
have a conversation about the photos.14 If the police
investigator knows which photograph represents the
person who is under suspicion, there is a danger that
the witnesss identification will be influenced by the
officers knowledge and expectations, even though,
seemingly, there is nothing suggestive about the
procedure:
[When the police investigator knows which
photograph is the suspects photograph, this]
creates a situation very similar to one that
has been extensively studied by psychological
scientists in other contexts in which a
testers knowledge or expectations influence
the person being tested in a direction that
is consistent with the testers knowledge or
expectations. ... There is no presumption
that these tester effects are the result of
intentional efforts by the tester or that the
tester is aware of influencing the person
being tested. ... [T]he concern here is
with the kinds of influences that are
unintentional, natural by-products of the
[personal] interaction.
Wells & Quinlivan at 7-8.
Moreover, the Brathwaite decision
appears to be premised on the assumption
that, despite the suggestiveness of an
identification procedure, a witness retains a
true memory of the event which may be
independently sufficient to reliably identify
the perpetrator if the witness had an
adequate opportunity to observe the
perpetrator, if the witness was paying
attention, etc. In effect, the five
Brathwaite factors are the test that a court
uses to determine if the witness is relying
on this presumed independent memory rather
than on the result suggested by the
identification procedure.
Indeed, even the dissent in
Brathwaite subscribes to this notion that a
witness retains a true memory of the event
that exists independent of the suggestive
photo lineup or show-up, and that this memory
can be retrieved despite the previous
suggestive procedure. Justice Marshall,
writing in dissent, suggested that when a
prosecuting attorney learns that there has
been a suggestive confrontation, the
prosecutor can easily cure this error by
arrang[ing] another lineup under scrupulously
fair conditions. Brathwaite, 432 U.S. at 126-
27, 97 S.Ct. at 2259.
But as Professors Wells and
Quinlivan point out in their article on
Brathwaite, the dominant view among
psychological scientists [is] that, once an
eyewitness has mistakenly identified someone,
that [mis-identified] person becomes the
witness memory[,] and the error will simply
repeat itself [in subsequent
identifications].15
This observation is vividly
corroborated by the facts of the Ronald
Cotton case. Even when Jennifer Thompson was
confronted with Bobby Poole (the real rapist)
in court, she had no recollection of him, and
she re-affirmed her identification of Ronald
Cotton as her attacker. Indeed, this false
memory persisted even after Thompson knew
that the memory was false: she continued to
see Ronald Cottons face when she thought back
to the rape even after she learned that the
DNA testing had demonstrated Cottons
innocence.
Moreover, even assuming that a true
memory exists independently of a witnesss
exposure to a suggestive identification
procedure, there is reason to doubt whether
the five Brathwaite factors are a valid
method for judging whether a witnesss
testimony reflects that independent memory.
For instance, according to the
Wells and Quinlivan article, when a witness
is asked to estimate how long they were able
to observe the perpetrator of a crime, the
witness will often grossly over-estimate the
amount of time the perpetrator was in their
view especially if the witness was under
stress or anxiety at the time they observed
the events.16 Similarly, a witness will
often inaccurately minimize the amount of
time that their view of the perpetrator was
blocked by another person or a physical
obstruction.17
Perhaps more troubling are the
results of experiments showing that the
comments of a police investigator can alter a
witnesss perception or memory of how long
they were able to view the perpetrator, and
how good their view was. In a series of
experiments, witnesses were given a poor view
of a simulated crime, and then they were
shown a photo lineup that did not include the
culprit.18 The experiment centered on those
witnesses who (mistakenly) identified one of
the people in the lineup as having committed
the crime. The lineup administrator would
tell some of these witnesses, Good; you
identified the suspect in this case, while
the administrator would make no suggestive
remark to the others.19
Later, when all of these witnesses
were asked, How good was the view that you
had of the culprit? and How well could you
make out the details of the culprits face?,
the overwhelming majority of witnesses who
heard no confirmatory remark conceded that,
even though they had made an identification
from the lineup, their view was not very good
and they could not easily make out the
details of the culprits face.20 On the other
hand, the witnesses who received a
confirmatory remark from the lineup
administrator had very different perceptions
of their own experience. Even though these
witnesses had the same poor view of the
crime, about 25 percent of them reported that
they had a good or excellent view of the
crime, and 20 percent of them declared that
they could easily make out the details of the
culprits face.21
The results of these experiments
suggest that if the evidence in support of
the first Brathwaite factor opportunity to
view is based solely on the self-reporting
of the witness, then a court would need to
know (and try to take account of) what was
said to the witness during the identification
procedure. In other words, there is reason
to believe that this first Brathwaite factor
is not independent of the suggestive
identification procedure.
Similarly, many experiments have
shown that when a witness receives a
confirmatory suggestive remark following
their identification of a person in a lineup,
this tends to inflate the witnesss own
perception of how much attention they were
paying to the perpetrator of the crime the
second Brathwaite factor.22
The third Brathwaite factor the
witnesss degree of certainty in their
identification is obviously crucial to all
stages of a criminal investigation. A
witnesss certainty (or lack of certainty) may
influence whether a person is charged at all,
or whether the prosecutor takes the case to
trial, and if the case goes to trial, how
much weight the jury will give to the
witnesss testimony.
Of course, life provides many
instances of people who are certain about
something but who are nevertheless mistaken.
The question is: is there a valid
correlation between a witnesss certainty and
the correctness of their identification?
Studies have shown that, among
witnesses who make an identification (either
correct or mistaken) from a lineup, the
statistical correlation between the witnesss
certainty and the correctness of their
identification can be as high as 0.41.23
(Some studies suggest that the correlation is
lower.) To put this figure in perspective,
the statistical correlation between height
and sex in human beings is considerably
higher than 0.4. In other words, these
studies suggest that you would have much
better success in predicting a persons sex if
you knew their height than you would have in
predicting the accuracy of a witnesss
identification if you knew the witnesss
degree of certainty.24
Nevertheless, the fact that there
is a positive correlation between a witnesss
certainty and the accuracy of their
identification means that a witnesss degree
of certainty is some indication of the
accuracy of their identification.25
However, as is the case with
Brathwaite factors one and two, a lineup
administrators confirmatory remark can have a
substantial influence on a witnesss degree of
certainty. In one study, for example,
witnesses who mistakenly identified someone
from a lineup were later asked whether they
had been positive or nearly positive when
they made their identification. Of the
witnesses who did not receive a confirmatory
remark from the lineup administrator, only 15
percent reported that they had been positive
or nearly positive when they made their
selection from the lineup. However, among the
witnesses who received a confirmatory remark
following their mistaken identification, 50
percent reported that they had been positive
or nearly positive when they made their
selection.26
As Professors Wells and Quinlivan
observe, one crucial aspect of this
experiment is that these witnesses were asked
after the fact to report on their degree of
certainty at the time they made their
identification.27 In other words, the lineup
administrators suggestive confirmatory remark
was not altering the witnesss degree of
certainty at the time they made their
selection from the lineup. Rather, the
confirmatory remark was altering the witnesss
memory their recollection of their degree of
certainty at that earlier time.
This finding has potential
importance to a judges evaluation of a
witnesss testimony in particular, the
witnesss self-report of their degree of
certainty at any pre-trial hearing on the
Brathwaite factors. It suggests that a
witnesss self-reported degree of certainty is
not necessarily trustworthy.
The fourth Brathwaite factor the
accuracy of the witnesss pre-lineup
description of the perpetrator suggests a
logical error. One can not know whether a
witnesss description of the perpetrator is
accurate unless one knows who the perpetrator
is.
As illustrated by the Ronald Cotton
case, the fact that a witness may have
accurately described the defendant in advance
of the lineup, and then selected the
defendants photograph from the lineup, does
not prove guilt unless the witnesss
recollection of the perpetrator is accurate.
To conclude that a witnesss pre-lineup
description was accurate (in the sense of
describing the true perpetrator of the crime)
simply because the witnesss description fits
the physical characteristics of the defendant
is to assume the very fact that needs to be
proved.
Instead of the accuracy of a
witnesss pre-lineup description, the fourth
Brathwaite factor is more properly concerned
with the consistency between the witnesss pre-
lineup description of the perpetrator and the
physical characteristics of the person whom
the witness later selects in the lineup, as
well as the degree of this consistency (i.e.,
the amount of detail in the witnesss pre-
lineup description, and how much of that
detail is consistent with physical
characteristics of the person whom the
witness selected in the lineup).
This fourth Brathwaite factor
suffers from an underlying analytical
weakness. The probative value of this fourth
factor i.e., the consistency between a
witnesss pre-lineup description of the
culprit and the physical characteristics of
the person who is later selected in the
lineup hinges in large measure on the
assumption that the composition of the lineup
has not been influenced by the witnesss pre-
lineup description of the culprit. This
assumption is often false. It is common for
the police to rely on the witnesss pre-lineup
description when they select which
photographs to include in a lineup because
the witnesss description is often one of the
primary clues that the police rely on when
they begin to narrow the field of potential
suspects.
Moreover, some studies have shown
that when witnesses are confronted with a
photo lineup, they tend to select the person
who looks most like their memory of the
culprit, even when none of the photos matches
their memory exactly.28 This is apparently
what happened in the Ronald Cotton case.
Even though Detective Gauldin did
not expressly tell Thompson that the photo
lineup contained a photograph of the person
whom the police suspected, Thompson made the
assumption that her attackers photograph was
among the six photos displayed to her, and
she believed that her job was to identify the
correct photograph. She later told 60
Minutes reporter Leslie Stahl, I ... remember
almost feeling like I was [taking] an SAT
[multiple choice] test. You know, where you
start narrowing down your choices. You can
[immediately] discount A and B, [and then you
work on the others].
What does this mean in terms of
Brathwaites fourth factor? Professors Wells
and Quinlivan suggest the following
hypothetical: The police assemble a photo
lineup, and they include a photo of the
defendant because the defendant seems to
match the witnesss description of the
perpetrator. The witness views the lineup
and identifies the defendant. A judge later
rules that the lineup was unnecessarily
suggestive because the filler photographs
were too dissimilar to the photograph of the
defendant. But then, based on the
consistency between the witnesss pre-lineup
description of the culprit and the defendants
physical characteristics, the judge concludes
that the witnesss identification of the
defendant is reliable.29 One might well
question whether courts should indulge in
this form of circular reasoning.
The judicial, legislative, and law enforcement response
to this research
Despite the tension between the Brathwaite
analysis of reliability and the results of the
past three decades psychological research into the
dynamics of eyewitness identification, few courts
have conducted a critical re-examination of the
Brathwaite approach.
The New York Court of Appeals was the first
court to reject Brathwaite on state constitutional
grounds: People v. Adams, 423 N.E.2d 379, 383-84; 440
N.Y.S.2d 902, 905-07 (N.Y. 1981). The New York court
concluded that the Biggers/Brathwaite approach to
assessing the reliability of eyewitness identifications
was flawed, and so the New York court instead adopted
the per se rule of exclusion that the United States
Supreme Court rejected in Brathwaite. In other words,
the New York court ruled that evidence of an eyewitness
identification arising from an unnecessarily suggestive
police-arranged identification procedure must be
suppressed, regardless of the Brathwaite factors.
However, the New York decision rendered in 1981 was
not based on the nascent scientific research into
eyewitness identification; rather, it was based on the
New York courts agreement with the Brathwaite
dissenters that it was simply too risky to try to
assess the reliability of an identification made during
an unnecessarily suggestive lineup or showup.
Beginning in the early 1990s, courts began to
demonstrate awareness of the growing scientific
criticism of the Brathwaite approach. In State v.
Ram¡rez, 817 P.2d 774, 780-81 (Utah 1991), the Utah
Supreme Court adopted a modified version of the
Brathwaite factors. The courts primary aim was to
craft factors that more precisely define[d] the focus
of the relevant inquiry, and that expressly recognized
the problem of witness suggestibility a difficulty
that has no comparable emphasis in the
Biggers/Brathwaite factors. See Ram¡rez, 817 P.2d at
781.
See also State v. Hunt, 69 P.3d 571, 576
(Kan. 2003) (adopting the Ram¡rez formulation of the
test for reliability of eyewitness identifications
because the Ram¡rez factors present an approach to the
identification issue which heightens ... the
reliability of such identification[s] and which
represents a refinement in the [Brathwaite] analysis).
In Commonwealth v. Johnson, 650 N.E.2d 1257,
1261-65 (Mass. 1995), the Massachusetts Supreme Court
followed the lead of the New York Court of Appeals and
rejected the Brathwaite reliability analysis in favor
of a per se rule of exclusion (under the Massachusetts
constitution). The Massachusetts court relied in part
on the research conducted into eyewitness
identification by Professors Gary Wells and Elizabeth
Loftus. See Johnson, 650 N.E.2d at 1262 n. 9.
The year 2005 appears to have been a turning
point of sorts in the judicial recognition of the
growing body of research into the psychological
dynamics of eyewitness identification. In that year,
two state supreme courts issued opinions that contained
lengthy citations and discussions of the research
literature: State v. Ledbetter, 881 A.2d 290, 311-13
(Conn. 2005), and State v. Dubose, 699 N.W.2d 582, 591-
92 (Wis. 2005). The Connecticut court in Ledbetter
concluded that the research data was not convincing
enough to abandon the Brathwaite analysis, but the
Wisconsin court in Dubose held that an eyewitness
identification arising from an unnecessarily suggestive
showup must be suppressed, without regard to any
Brathwaite reliability analysis.
See also Smith v. Smith, unpublished, 2003 WL
22290984, *10-14 (S.D. N.Y. 2003), a habeas corpus
decision which contains a lengthy discussion of the
various potential flaws in eyewitness identification
testimony. The federal court acknowledged that the
current research casts doubt on Brathwaite, but the
court denied the defendants petition for habeas corpus
relief because the state courts that affirmed the
defendants conviction were not clearly wrong to follow
the prevailing Brathwaite analysis.
In addition to these few courts that have
responded to the psychological research on eyewitness
identification, several legislatures and police
agencies have enacted new laws or policies based on
this research.
In September 2005, the Wisconsin Attorney
General issued a Model Policy and Procedure for
Eyewitness Identification.30 This policy recommended
that all police agencies utilize a double-blind,
sequential photo lineup procedure.31 The salient
details of this procedure are: (1) the officer
conducting the photo lineup does not know who the
suspect is, (2) the witness being interviewed is told
that the culprit may not be included among the
photographs, (3) the photographs are shown to the
witness one at a time, rather than in a group, (4) the
witness is not told in advance how many photographs
they will see, and (5) the witness is asked to rate
each photograph separately (e.g., yes, no, or unsure)
thus minimizing the danger that the witness will view
the procedure as a multiple choice test where their
task is to pick the one photo that best matches their
memory of the culprit.32
In April 2006, the California Commission on
the Fair Administration of Justice issued its Report
and Recommendations Regarding Eye Witness
Identification Procedures. In this report, the
California Commission likewise recommended that all
police agencies in the state adopt a double-blind,
sequential photo lineup procedure.33
In October 2008, a series of articles that
appeared in the Dallas Morning News highlighted a
number of misidentifications (and ensuing wrongful
criminal convictions) that resulted from suggestive
showups and photo lineups.34 These articles contained
a discussion of the current psychological research
regarding eyewitness identification, and they prompted
the Dallas Police Department to alter their procedures.
In September 2009, USA Today reported that
five other states (Connecticut, Georgia, Maryland,
North Carolina, and West Virginia) and several major
metropolitan police departments are changing their
identification procedures in response to the
psychological research and the wealth of information
confirming that innocent people are indeed being
convicted based on mistaken eyewitness
identifications.35
In particular, North Carolina has enacted a
statute that mandates double-blind, sequential photo
lineup procedures. See North Carolina Statute 15A-
284.52. According to the USA Today article, one of the
leading proponents of this revision of North Carolinas
lineup procedures was Michael Gauldin the chief
investigator in the Ronald Cotton case.36
There can be little doubt that these recent
changes in the legal system have been prompted by the
confluence of two forces: the increasing amount of
psychological research in this area, and the concurrent
development of forensic DNA testing. As Professors
Gary L. Wells, Amina Memon, and Steven D. Penrod noted
in their article, Eyewitness Evidence: Improving Its
Probative Value, 7 Psychological Science in the Public
Interest 45 (2006), the last two decades have seen no
major change in how eyewitness identification
scientists approach their work; rather, the advent of
forensic DNA testing has changed the way the legal
system views eyewitness evidence.37
The changing attitude of the legal system is
attributable to the fact that the development of
forensic DNA testing in the 1990s [uncovered]
definitive cases of the conviction of innocent people
in the United States, and that [e]yewitness
identification error was at the heart of the evidence
used to convict the vast majority of these innocent
people.38 In other words, DNA testing provided the
physical science confirmation of what the psychological
scientists had been suggesting for years and this made
the non-scientific world begin to pay close attention.
A re-examination of the photo lineup in Tegoseaks case
As we explained earlier in this opinion,
Officer Asselin the lead investigator in this case
knew that Edgar Henry was photograph number 5 in the
first array of six photos and that Frank Tegoseak was
photograph number 5 in the second array. Asselin first
showed the two photographic arrays to Michelle Maestas,
but she failed to identify either Edgar Henry or Frank
Tegoseak. Thus, when Asselin next showed the
photographs to Robert Maestas, Asselin knew that this
was his final opportunity to get an identification of
either Henry or Tegoseak from an eyewitness.
As we also explained, when Robert Maestas was
shown the first array, he correctly identified the
photograph of Henry (photograph number 5) as being the
original passenger in the Bronco, but Maestas also
incorrectly identified photographs 1 and 3 of this
first array as being the original driver.
Asselin knew that this was wrong, so he said
to Maestas, Let me try to at least show you [the second
array of photographs]; then you can see the entire
compilation of photos. So far, youve said [that] 1 and
3 [in the first array] could be the driver. Asselin
then showed Maestas the second array of six
photographs.
When Judge Wolverton ruled on Tegoseaks
motion to suppress Maestass identification, the judge
concluded that Asselins remark to Maestas was not meant
to suggest that Maestas should keep looking at more
photos because he had not yet successfully identified
the culprit. Rather, Judge Wolverton concluded that
Asselins remark was simply intended to clarify the
photo lineup procedure to remind Maestas that there
were two photo arrays, and that Maestas should examine
both arrays before he made his final selections.
But as we have explained, for purposes of
assessing the suggestiveness of the photo lineup, the
crucial aspect of the communication between Asselin and
Maestas was not Asselins intention when he made these
remarks; instead, the crucial aspect was the
information or the suggestion that Maestas may have
drawn from these remarks.
If as appears likely Maestas knew or
suspected that the photo arrays contained photographs
of the two men whom Asselin knew to be the culprits
(the two men who had been found in the Bronco), then
when Asselin told Maestas to keep looking at more
photos even though Maestas had apparently identified
both men, Asselins remark could well have suggested to
Maestas that his initial selection was wrong, and that
he had not yet identified the true culprit.
This is not to imply that Asselin was
consciously attempting to manipulate Maestass choice.
The suggestiveness of the procedure could have been
inadvertent on Asselins part but real, nonetheless.
The potential suggestiveness of Asselins
remark could only have been amplified later, when
Maestas viewed the second array and told Asselin that
the original driver of the Bronco was either photograph
1 in the first array (a filler) or photograph 5 in the
second array (Tegoseak). Rather than have Maestas
place an X in the two boxes representing these two
photos, Asselin directed Maestas to place an X in only
one box, the box representing Tegoseaks photo although
Asselin invited Maestas to add a written notation
explaining that Maestas thought that the other photo
might also be the driver.
Asselins reaction to Maestass ambiguous
identification was not necessarily an attempt to
manipulate Maestas. Rather, it might be attributed to
the phenomenon of observer bias. Both scientific
researchers and police investigators can fall prey to
the normal human tendency to pay attention to, or to
overemphasize, the results that they expect or hope to
see and the converse tendency to fail to observe, or
to ignore the significance of, results they do not
expect or hope to see.
But while Asselin may not have intended to
manipulate Maestas, his directions to Maestas may have
affected Maestass perception of the identification
procedure. Asselins directions to Maestas potentially
constituted an inadvertent suggestion that photograph
number 5 in the second array (i.e., Tegoseak) was
Maestass real selection, and that photograph number 1
in the first array was only a subsidiary alternative
selection.
As we explained earlier in this opinion, one
of the important findings of the psychological research
in this area is that, if a witness makes an
identification during a suggestive lineup procedure and
then the witness receives some kind of confirmation
from the officer administering the lineup, the witnesss
after-the-fact perception of their identification can
be altered: the witness can become artificially more
confident in their identification. There is reason to
believe that this is what happened to Robert Maestas.
At the evidentiary hearing on Tegoseaks
motion to suppress, Maestas readily admitted that he
had selected two photos from the lineup as look[ing]
similar to the man who was the original driver of the
Bronco both [number] 5 on [the second array] and
number 1 on [the first array]. When Maestas was asked
whether his identification was positive, Maestas
conceded that it was not.
But by the time of Tegoseaks trial ten weeks
later, Maestas viewed the matter differently. When
Maestas was questioned about the photo lineup at trial,
he now declared that, even though he had initially
wavered between photograph 1 in the first array (a
filler) and photograph 5 in the second array
(Tegoseak), he soon perceived that Tegoseak was the man
he had seen in the Bronco.
Here is Maestass testimony on direct
examination:
Prosecutor: And [with regard to] Photo
Lineup B, were you able to make an
identification [from that array]?
Maestas: I was. ... [Photograph]
number 5 ... was the original driver.
Prosecutor: And when you were asked to
make the identification, did you hesitate
somewhat between [photograph] 5 [in the
second array] and [photograph] 1 [in the
first array]?
Maestas: I did; I did. But then I had
recalled the way that the gentlemans ears
kind of stuck out, after the fact.
Prosecutor: Okay. And when you say the
gentleman thats [photograph] number 5?
Maestas: ... Five. Uh-huh.
[affirmative]
And here is Maestass testimony on
redirect examination:
Prosecutor: You said [with regard to]
the first photo lineup [that] you werent 100
percent sure. Did you become more sure as
you looked at those photos?
Maestas: I I became more sure when I
recollected, like I said, what I really
distinctly remember was the way the ears
stuck out from the head, [from the] side of
the head.
Prosecutor: Okay.
Maestas: Thats why I was able to make
my determination a little easier.
Prosecutor: And thats how you selected
[photograph] number 5 [in the second array]?
Maestas: Yes.
Maestas said nothing about the
distinctiveness of Tegoseaks ears during the
photo lineup procedure itself, nor did he say
anything about this physical feature when he
testified at the suppression hearing.
Rather, as Maestas himself admitted, [he]
became more sure when [he] recollected. By
the time of Tegosaeks trial, Maestas
distinctly remember[ed] ... the way the ears
stuck out from ... the side of [Tegoseaks]
head, and he declared that he was able to
identify Tegoseaks photo based on this
physical feature. This is arguably an
example of the kind of altered memory and
altered certainty described in the research
literature.
Why we conclude that the potential suggestiveness of
the photo lineup is harmless beyond a reasonable
doubt
We have covered a lot of ground in this
opinion: a lengthy discussion of the Ronald
Cotton case, a look at some of the scientific
research on the subject of eyewitness
identification, and a description of the recent
efforts in various states and cities to improve
eyewitness identification procedures. All of this
naturally leads to the question: What, if
anything, should this Court do in response to what
society has learned in the thirty years since
Brathwaite?
We first wish to clarify that the Ronald
Cotton case is simply one case, albeit a prominent
one. What happened in that case may provide
reason to question the Brathwaite analysis, but it
does not constitute scientific proof that the
Brathwaite analysis is flawed.
Second, we acknowledge that our examination
of the past three decades research has not been an
exhaustive one. There are many studies in this
area that we have not mentioned. And, of course,
there are questions in the scientific community
about the methodology of particular studies, as
well as questions regarding the significance that
should be attributed to the results of various
studies.
We do not intend to endorse a particular
viewpoint or reach a definitive conclusion at this
time. Rather, our goals are more modest: to
acknowledge that psychological research into
eyewitness identification has furnished new
insights into the potential suggestiveness of
identification procedures, and to point out that
this research has illuminated the related problem
that a suggestive identification procedure can
work an after-the-fact alteration of a witnesss
memory of a criminal episode.
We need go no further at the present time
because, even assuming that the photo lineup
procedure in Tegoseaks case was unnecessarily
suggestive, any error was harmless beyond a
reasonable doubt.39
When Judge Wolverton ruled on Tegosaeks
suppression motion, he noted that this might [have
been] a different situation if [Tegoseak and Henry] had
not been followed and almost [handed]-off to the
police. As Judge Wolverton correctly pointed out, the
case against Tegoseak was not a whodunit not a case
where the police knew that a crime had been committed
but did not know the identity of the perpetrator.
Rather, the States evidence clearly established (1)
that the Bronco was being driven in an erratic manner,
(2) that two men one wearing a white shirt and one
wearing a black shirt got out of the Bronco in the
nursery parking lot and switched places before getting
back in the vehicle and driving off, (3) that only two
men were in the Bronco when the police stopped the
vehicle minutes later one wearing a white shirt and
one wearing a black shirt, and (4) that, following the
stop, both men initially admitted to having just driven
the car. In addition, Officer Asselin testified that
Edgar Henry told the police that he had taken over
driving the Bronco after the stop at Bells Nursery
because Tegoseak had been driving so poorly that he
thought Tegoseak was going to kill them.
Given all of this, we have no doubt that the
jury would have convicted Tegoseak even if Maestas had
been unable to identify Tegoseak at trial, and even if
the jurors had been told that Maestas was unable to
identify the driver in the photo lineup, or that
Maestas had identified one of the filler photos as
being the driver. In other words, even if the superior
court should have granted Tegoseaks motion to suppress
Robert Maestass identification of him as the initial
driver of the Bronco, any error was harmless beyond a
reasonable doubt.
Conclusion
The judgement of the superior court is
AFFIRMED.
BOLGER, Judge, concurring.
The research cited in the lead opinion
suggests that we should consider changes to the test we
currently use to determine whether a photo lineup
procedure satisfies due process of law. But I choose
to withhold my opinion on this issue until both parties
have the opportunity to submit their positions on the
relevant research either through an evidentiary hearing
or adversarial briefing. This occasion will more
likely arise in a case where the research is essential
to the outcome. In the present case, I agree with the
conclusion of the lead opinion: Any error in the photo
lineup procedure was harmless beyond a reasonable
doubt.
_______________________________
1 AS 28.35.030(n) and AS 28.15.291(a)(1), respectively.
2 Robert and Michelle Maestas were formerly known as Robert
and Michelle Mayer; they changed their names prior to
Tegoseaks trial. Thus, in the grand jury transcript, they
are referred to as Mayer. But at trial, and in the parties
briefs to this Court, they are referred to by their current
names.
3 See AS 28.35.030(a)(2).
4 Cameron v. State, 171 P.3d 1154, 1157 (Alaska 2007); Frink
v. State, 597 P.2d 154, 164-66 (Alaska 1979).
5 See, e.g., Cathey v. State, 60 P.3d 192, 195 (Alaska App.
2002); State v. McDonald, 872 P.2d 627, 639 (Alaska App.
1994).
6 See, e.g., Wilkie v. State, 715 P.2d 1199, 1201-02 (Alaska
App. 1986); Tookak v. State, 648 P.2d 1018, 1020-21 (Alaska
App. 1982). See also Abruska v. State, 705 P.2d 1261, 1272-
73 (Alaska App. 1985) (holding that the victims potentially
contradictory statements about whether it was the defendant
who shot him were not exculpatory evidence).
7 In 1891, William von Osten began displaying his horse,
Clever Hans, to the public. Hans would answer questions by
tapping his hoof either by tapping out a number, or by
tapping out the letters of the alphabet that corresponded to
the answer (with one tap equaling A, two taps equaling B,
and so on). Hans could apparently perform mathematical
calculations, tell time, identify musical intervals, and
name people.
Von Osten did not intend to trick people. He believed that
animals possessed an intelligence equal to that of humans
and, in his quest to prove this, he attempted to teach many
animals how to do simple calculations. However, Clever Hans
was the only animal who showed any ability.
The first scientific test of Hanss ability was conducted in
1904 by Professor Carl Stumpf. Stumpf looked for evidence
of cheating or trickery to explain Hanss ability, but he
found none, and he subsequently endorsed Hanss abilities as
genuine. Following Professor Stumpfs endorsement, Clever
Hans became a sensation, and people flocked to see him.
In 1907, a group of thirteen scientists (the Hans Commission)
re-tested Clever Hans. Their test is now recognized as a
classic experiment in psychology.
Because there was no evidence of connivance or cheating, the
scientists began with the assumption that Hans did have an
ability of some kind, and they designed their experiment to
find out what this ability was.
Hans was tested inside a large tent to avoid outside
distractions, such as spectators. The experiment was
designed in the following way:
$ A large number of questions were used, to
eliminate the effects of chance;
$ Different people posed these questions, in case
Hans was picking up signals from his owner, von Osten;
$ The questioners sometimes knew the answers to the
questions they were asking, but other times they did
not;
$ The questioners would stand at different distances
from Hans during different trials; and
$ Some trials were run with Hans blinkered.
The first important finding was that Clever Hans needed to
have visual contact with the questioner in order to answer
correctly. The farther away the questioner stood, the less
accurate Hans became. And when Hanss peripheral vision was
obstructed by blinkers, his ability to answer was diminished
even further.
The other major finding was that Hans could only answer a
question correctly if the questioner also knew the answer to
the question. When the questioner did not know the answer
to the question, Hans could not give the answer.
These facts that Hans could only answer a question correctly
if it was posed by a questioner who knew the answer, and
only if Hans could see the questioner led the psychologists
to perceive that Hans was not using intelligence to work out
the answers; rather, he was responding to visual cues given
unwittingly by the questioner. These unwitting visual cues
took the form of increases or decreases in the tension of
the questioners body, changes in the questioners facial
expression, and other involuntary movements that the
questioner would make when Hans reached the right answer.
The results of the experiment with Clever Hans led the
scientists to the key insight that an animals or a persons
behavior can be influenced by subtle and unintentional cues
given by a questioner or researcher.
This effect now known as the Clever Hans effect is one of
the primary reasons why scientific tests (and, in
particular, clinical trials) must be done using a double-
blind method: a procedure in which neither the
questioner/researcher nor the subject being tested knows the
nature of the information required or the treatment being
administered.
Source: John Jackson, Clever Hans (2005), available at:
www.skeptics.org.uk/article.php?dir=articles&article=clever_
hans.php
8 Gary L. Wells, Eyewitness Identification: a system handbook
(Carswell Legal Publications, 1988); Gary L. Wells & C. A.
Elizabeth Luus, Police Lineups as Experiments: Social
methodology as a framework for properly conducted lineups,
16 Personality and Social Psychology Bulletin 106-117
(1990).
9 Available at:
www.psychology.iastate.edu/~glwells/homepage.htm, through
the link Meet the double-blind lineup.
10Jennifer Thompson-Cannino & Ronald Cotton, with Erin Torneo,
Picking Cotton: Our Memoir of Injustice and Redemption (St.
Martins Press, 2009).
11Both the video and the text of the 60 Minutes story, Picking
Cotton (originally aired in March 2009) are available at:
www.cbsnews.com/stories/2009/03/06/60minutes/main4848039.shtml
12Brathwaite, 432 U.S. at 112-14, 97 S.Ct. at 2252-53, citing
Stovall v. Denno, 388 U.S. 293, 302; 87 S.Ct. 1967, 1972; 18
L.Ed.2d 1199 (1967).
13409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).
14Gary L. Wells & Deah S. Quinlivan, Suggestive Eyewitness
Identification Procedures and the Supreme Courts Reliability
Test in Light of Eyewitness Science: Thirty Years Later
[i.e., 30 years after Brathwaite], 33 Law and Human Behavior
1-24 (2009), DOI [Digital Object Identifier] 10.1007/s10979-
008-9130-3.
15 Id. at 9.
16 Id. at 10.
17 Id.
18 Id.
19 Id.
20 Id.
21 Id.
22 Id. at 11.
23 Id. at 12.
24 Id.
25 Id.
26 Id.
27 Id.
28 Id. at 13.
29 Id.
30This model policy is available at:
www.doj.state.wi.us/dles/tns/eyewitnesspublic.pdf
31Id. at 3.
32Id. at 3 & 8-9. On page 9 of the model policy, the
Wisconsin Attorney General recommends that the following
instructions be given to each witness before a photo lineup:
In a moment, I am going to show you a series of photos.
The person who committed the crime may or may not be
included. I do not know whether the person being
investigated is included. Even if you identify someone
during this procedure, I will continue to show you all
the photos in the series.
Keep in mind that things like hair styles, beards, and
mustaches can be easily changed and that complexion
colors may look slightly different in photographs.
You should not feel you have to make an identification.
It is as important to exclude innocent persons as it is
to identify the perpetrator.
The photos will be shown to you one at a time and are not
in any particular order. Take as much time as you need
to look at each one. After each photo, I will ask you Is
this the person you saw [insert description of act here]?
Take your time answering the question. If you answer
Yes, I will then ask you, In your own words, can you
describe how certain you are?
Because you are involved in an ongoing investigation, in
order to prevent damaging the investigation, you should
avoid discussing this identification procedure or its
results.
Do you understand the way the photo array procedure will
be conducted and the other instructions I have given you?
33California Commission on the Fair Administration of Justice:
Report and Recommendations Regarding Eye Witness
Identification Procedures (April 2006), page 5. Available
at:
www.psychology.iastate.edu/~glwells/California_commission.pd
f
34See, e.g., Steve McGonigle & Jennifer Emily, 18 Dallas
County cases overturned by DNA relied heavily on eyewitness
testimony, Dallas Morning News, October 10, 2008. Available
at:
www.dallasnews.com/sharedcontent/dws/dn/dnacases/stories/10120
8dnproDNAlineups.-263c4f5.html#slcgm_comments_anchor
For more information on this series of articles, see:
www.dallasnews.com/sharedcontent/dws/spe/2008/dna
35Kevin Johnson, States Change Police Lineups After Wrongful
Convictions, USA Today, September 17, 2009. Available at:
www.usatoday.com/news/nation/2009-09-16-police-lineups_N.htm
36Id.
37Id. at 48.
38Id.
39 Constitutional error requires reversal of a criminal
conviction unless the error is shown to be harmless
beyond a reasonable doubt. Chapman v. California, 386
U.S. 18, 24; 87 S.Ct. 824, 828; 17 L.Ed.2d 705 (1967);
Raphael v. State, 994 P.2d 1004, 1010 (Alaska 2000).
In assessing whether an error is harmless beyond a
reasonable doubt, the question is whether there is a
reasonable possibility that the error affected the
result. Dailey v. State, 65 P.3d 891, 896 (Alaska App.
2003), citing Smithart v. State, 988 P.2d 583, 589
(Alaska 1999).
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
