Jury Instructions on Eyewitness Identification In California

In People v. Wright (1988) 45 Cal.3d 1126, the Supreme Court instructed CALJIC No. 2.92 "should be given . . . in a case in which identification is a crucial issue . . . ." (Wright, supra, 45 Cal.3d at p. 1144.) "The listing of eyewitness identification factors to be considered by the jury will sufficiently bring to the jury's attention the appropriate factors, and . . . an explanation of the effects of those factors is best left to argument by counsel, cross-examination of the eyewitnesses, and expert testimony where appropriate. the instruction should list the applicable factors in a neutral and nonargumentative instruction, thus effectively informing the jury without improperly invading the domain of either jury or expert witness." (Id. at p. 1143.) The Court generally approved giving standard instructions concerning eyewitness identification factors, provided defense counsel is given an opportunity to suggest additional or supplemental factors. (Ibid.; see People v. Martinez (1987) 191 Cal.App.3d 1372, 1383.) If a defendant wishes to educate the jury as to the unreliability of eyewitness testimony in certain respects, he or she must use means other than jury instructions, such as expert testimony. (Wright, at pp. 1153-1154.) Wright also explains that "expert testimony has the advantage of being subject to cross-examination and rebuttal, thus allowing the jury to determine for itself the weight it should give to expert opinions, rather than binding the jury to accept certain experts' views." (Id. at p. 1154.)