Bird Court Ruling on Eyewitnesses’ Fallibility Upset

The state Supreme Court on Thursday overturned a ruling made under former Chief Justice Rose Elizabeth Bird that would have required a trial judge to warn jurors that eyewitness identifications may be unreliable and should be viewed “with caution.”

In a victory for prosecutors, the now more conservative court held 5 to 2 that the often-debated issue of the reliability of an identification should be left to trial counsel and expert witnesses to argue before the jury.

The decision came after the new court agreed to reconsider a contrary ruling issued in January, 1987, just before Bird and two others defeated in the November, 1986, election left office.

Thursday’s ruling was seen by attorneys as having considerable effect in the criminal justice system. The issue of reliability frequently arises in criminal cases in which eyewitness identifications can be a vital component in the prosecution’s case.

Defense attorneys frequently attack the reliability of eyewitness testimony, sometimes calling expert witnesses or citing studies contending such identifications can easily be mistaken--particularly in cases in which the defendant and witness are of different races.

The court said that judges should objectively list factors for jurors to consider in weighing eyewitness testimony--such as the ability of the witness to see the suspect, the stress the witness was under and, if applicable, the cross-racial nature of the crime. But judges themselves should not warn of the possibility of mistaken identification, the court said.

“The cautionary instruction . . . would likely give the jury the improper impression that the court considers the eyewitness identification evidence not only particularly important but also overwhelmingly suspect,” Chief Justice Malcolm M. Lucas wrote for the majority. “(It) also would improperly usurp the jury’s role . . . by binding it to the view that eyewitness identifications are often mistaken.”

In dissent, Justice Stanley Mosk, joined by Justice Allen E. Broussard, said that the mere listing of factors for consideration is not enough--and that judges should try to explain the inherent dangers in eyewitness identification.

Decision Awaited

Such an explanation is of particular importance in cross-racial crimes, in view of studies that conclusively show white witnesses have difficulty identifying black suspects, Mosk said.

State Deputy Atty. Gen. Catherine A. Rivlin said Thursday’s decision had been widely awaited by judges and trial counsel seeking clarification on an issue “that comes up practically every day in criminal law.”

“Counsel and expert witnesses can still argue the issue, but this decision takes the argument out of the mouth of the judge,” she said.

Lawyers for the state public defender’s office, which had urged that judges be required to caution jurors on eyewitness identifications, were unavailable for comment.

The case before the court involved an armed robbery at a wholesale beverage company in San Francisco in 1982, in which 11 employees were held at gunpoint by several masked intruders. Later, Carl A. Wright, a black man then 19, was charged in the crime along with another man.

At trial, three of the employees--none of whom were black--identified Wright as one of the robbers, saying his mask did not fully disguise his features. Defense lawyers vigorously challenged the identification, arguing it was particularly unreliable in a cross-racial case.

The defense also asked the judge to list factors for the jury to consider in weighing the identification and to warn such testimony should be received “with caution.” But the judge refused both requests.

In its January, 1987, ruling, the state Supreme Court ordered a retrial for Wright, concluding in a 6-1 opinion by Mosk that the judge should have cautioned the jury about the dangers of mistaken identification.

Atty. Gen. John K. Van de Kamp sought a rehearing in the case and, in March, 1987, the court--with three new appointees of Gov. George Deukmejian then in office--granted the prosecutor’s request.

In Thursday’s ruling, the court agreed that the trial judge should have informed jurors of the factors to weigh in considering eyewitness identifications.

But the error was harmless in this instance because of the “overall strength” of the witnesses’ testimony and because the witnesses had been vigorously cross-examined and the issue of reliability argued extensively by trial counsel, the court majority said.

The justices, however, rejected Wright’s claim that the judge should have issued a cautionary instruction. They emphasized that judges also should not attempt to “explain” the potential impact of factors jurors should consider in analyzing eyewitness testimony. Such an explanation would virtually “adopt” views of experts that might still be subject to debate, the court said.

“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,” Lucas wrote. “Such an instruction would improperly invade the domain of the jury, and confuse the roles of expert witnesses and the judge.”

Trial counsel will remain free to argue the issue of reliability and to present testimony from experts, the court said. But unlike instructions on the law from a judge, jurors remain free to reject lawyers’ arguments or experts’ testimony, the court said.

In other decisions on Thursday, the justices unanimously upheld the death penalty for Darrell Keith Rich, 33, convicted in 1978 of three first-degree murders and several other violent crimes in Shasta County. One of the victims was an 11-year-old girl, Annette Selix of Cottonwood, who had been sexually assaulted before she was thrown off a 105-foot-high bridge.

The court also unanimously affirmed the death sentence of Steven King Ainsworth, 43, for the 1978 murder of Seng (Nancy) Huynh, a Cambodian refugee, who was abducted from a parking lot as she was about to report for work at the state Department of Employment Development in Sacramento.

Thus far, the court has affirmed death verdicts in 28 of 36 capital cases decided since Deukmejian appointees became a majority.