CALJIC 2.92 - Interpretation
In People v. Wright (1988) 45 Cal.3d 1126, 248 Cal. Rptr. 600, 755 P.2d 1049 (Wright), the Supreme Court said, "We hold that a proper instruction on eyewitness identification factors should focus the jury's attention on facts relevant to its determination of the existence of reasonable doubt regarding identification, by listing, in a neutral manner, the relevant factors supported by the evidence." ( Id. at p. 1141.)
The Court added, "the instruction should not take a position as to the impact of each of the psychological factors listed. We disagree with the dissent's suggestion that CALJIC No. 2.92 is 'deficient' for failing to explain the effects of the enumerated factors." (Ibid.)
The Court in Wright noted that People v. McDonald (1984) 37 Cal.3d 351, 369, 208 Cal. Rptr. 236, 690 P.2d 709, disapproved on another ground in People v. Mendoza (2000) 23 Cal.4th 896, authorized the use of competing expert witnesses on the reliability of the factors relevant to evaluating eyewitness identification, but that an instruction about the effect of those factors would be improper and was best left to the examination of experts and argument of counsel. ( Wright, supra, 45 Cal.3d at pp. 1141-1142.)
Although a defendant was entitled to a special instruction directing the jury's attention to evidence in the record that supported a mistaken identification defense, the instructions otherwise should do no more than list in a neutral manner any factors based on the evidence. ( Wright, supra, 45 Cal.3d at p. 1141.)
Neither a proposed special instruction, nor CALJIC No. 2.92, should take a position as to the impact of those factors, as the required explanation "would of necessity adopt the views of certain experts and incorporate the results of certain psychological studies while discounting others.
It would require the trial judge to endorse, and require the jury to follow, a particular psychological theory relating to the reliability of eyewitness identifications. Such an instruction would improperly invade the domain of the jury, and confuse the roles of expert witnesses and the judge." (Ibid.)
Thus, eliminating the certainty factor from CALJIC No. 2.92 effectively would endorse psychological studies that discount or explain its impact and therefore conflict with the Supreme Court's admonition. ( Wright, supra, 45 Cal.3d at pp. 1141-1142.)
Instead, defendant was free to put on an expert who might explain the certainty factor according to defendant's viewpoint. ( Id. at pp. 1143-1144.) He chose not to. Indeed, he called no witness on his behalf.
In People v. Johnson (1992) 3 Cal.4th 1183, 842 P.2d 1 (Johnson), the defendant contended the trial court erred by including the certainty factor in CALJIC No. 2.92 because the only evidence on the issue came from his expert, who testified that a witness's confidence in his eyewitness identification did not correlate with its accuracy.
The Supreme Court held that the trial court was neither required, nor permitted, to instruct the jury according to the expert's theory. the jury was instructed to consider the expert's testimony, but was free to accept or reject the evidence. ( Johnson, supra, 3 Cal.4th at pp. 1231-1232.)
The Court said, CALJIC No. 2.92 "normally provides sufficient guidance on the subject of eyewitness identification factors." ( Id. at pp. 1230-1231; see People v. Gaglione (1994) 26 Cal.App.4th 1291, 1301-1303, disapproved on other grounds in People v. Martinez (1995) 11 Cal.4th 434, 452, 903 P.2d 1037.)
The Supreme Court in Johnson appears to approve of the CALJIC No. 2.92 instruction in question.