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Eyewitness Identification Jury Instruction Introduced by Florida Supreme Court

Wednesday, November 21, 2012 – After a watershed Order by The Florida Supreme Court on Wednesday, Florida trial judges are now required to instruct jurors on factors such as race and familiarity that should be considered when evaluating the accuracy of eyewitness identifications, the leading cause of wrongful convictions.

Eyewitness Identification Jury Instruction Introduced by Florida Supreme Court The Florida Supreme Court unanimously adopted three new standard jury instructions and amendments to an existing standard criminal jury instruction, as proposed by the Supreme Court Committee on Standard Jury Instructions in Criminal Cases.

The new standard jury instruction on “Eyewitness Identification” will have tremendous impact in criminal jury trials throughout Florida, and had received significant input prior to adoption. It’s opposed by some prosecutors, who say judges shouldn’t be commenting on evidence, as well as advocates for the wrongly convicted, who say it’s too weak.

Two committee members, both prosecutors, submitted a minority report contending the instruction violates case and statutory law and will require judges to abandon their neutral positions by reiterating evidence presented by one side.

The Innocence Project of Florida, which has helped free wrongly convicted inmates through DNA testing, contended in comments filed with the high court that the instruction fails to reflect scientific understanding of how to properly asses the reliability of eyewitness identifications. It had urged the justices to ask for a more robust rule or appoint a special master to hear evidence on how it could be strengthened.

The new Florida standard jury instruction on Eyewitness Identification reads as follows:


You have heard testimony of eyewitness identification. In deciding how much weight to give to this testimony, you may consider the various factors mentioned in these instructions concerning credibility of witnesses.

In addition to those factors, in evaluating eyewitness identification testimony, you may also consider:

  1. The capacity and opportunity of the eyewitness to observe the offender based upon the length of time for observation and the conditions at the time of observation, including lighting and distance.
  2. Whether the identification was the product of the eyewitness’s own recollection or was the result of influence or suggestiveness.
  3. The circumstances under which the defendant was presented to the eyewitness for identification.
  4. Any inconsistent identifications made by the eyewitness.
  5. Any instance in which the eyewitness did not make an identification when given the opportunity to do so.
  6. The witness’s familiarity with the subject identified.
  7. Lapses of time between the event and the identification[s].
  8. Whether the eyewitness and the offender are of different races or ethnic groups, and whether this may have affected the accuracy of the identification.
  9. The totality of circumstances surrounding the eyewitness’s identification.

Read the entire Order by The Florida Supreme Court: IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2011-05.

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