CALCRIM No. 315. Eyewitness Identification

Judicial Council of California Criminal Jury Instructions (2024 edition)

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B. WITNESSES

(i) Regarding Specific Testimony

315.Eyewitness Identification

You have heard eyewitness testimony identifying the defendant. As with

any other witness, you must decide whether an eyewitness gave truthful

and accurate testimony.

In evaluating identification testimony, consider the following questions:

•Did the witness know or have contact with the defendant before

the event?

•How well could the witness see the perpetrator?

•What were the circumstances affecting the witness’s ability to

observe, such as lighting, weather conditions, obstructions,

distance, [and] duration of observation[, and <insert

any other relevant circumstances>]?

•How closely was the witness paying attention?

•Was the witness under stress when he or she made the

observation?

•Did the witness give a description and how does that description

compare to the defendant?

•How much time passed between the event and the time when the

witness identified the defendant?

•Was the witness asked to pick the perpetrator out of a group?

•Did the witness ever fail to identify the defendant?

•Did the witness ever change his or her mind about the

identification?

•Are the witness and the defendant of different races?

•[Was the witness able to identify other participants in the crime?]

•[Was the witness able to identify the defendant in a photographic

or physical lineup?]

•[<insert other relevant factors raised by the

evidence>.]

•Were there any other circumstances affecting the witness’s ability

to make an accurate identification?

•[How certain was the witness when he or she made an

identification?]

[A witness’s expression of certainty about an identification, whether the

identification was made before or at the trial, may not be a reliable

indicator of accuracy. Among the factors you may consider when

evaluating the significance of the witness’s certainty in the identification

are the following:

[• How soon after the event did the witness express certainty about

the identification?]

[• If the witness made an identification before trial, did the witness

express certainty at the time of that identification?]

[• Before the identification, did the witness express confidence in

being able to make an identification?]

[• How confident was the witness in making the identification?]

[• Did the witness receive information before or after the

identification that may have increased the witness’s level of

confidence?]

[• Did the police use procedures that increased the witness’s level of

confidence about the identification?]

[• <insert other relevant factors raised by the evidence>.]]

The People have the burden of proving beyond a reasonable doubt that

it was the defendant who committed the crime. If the People have not

met this burden, you must find the defendant not guilty.

New January 2006; Revised June 2007, March 2022

BENCH NOTES

Instructional Duty

The court has no sua sponte duty to give an instruction on eyewitness testimony.

(People v. Richardson (1978) 83 Cal.App.3d 853, 863 [148 Cal.Rptr. 120],

disapproved on other grounds by People v. Saddler (1979) 24 Cal.3d 671, 682 [156

Cal.Rptr. 871, 597 P.2d 130].) An instruction relating eyewitness identification to

reasonable doubt, including any relevant “pinpoint” factors, must be given by the

trial court on request “[w]hen an eyewitness identification of the defendant is a key

element of the prosecution’s case but is not substantially corroborated by evidence

giving it independent reliability.” (People v. Wright (1988) 45 Cal.3d 1126,

1143-1144 [248 Cal.Rptr. 600, 755 P.2d 1049], quoting People v. McDonald (1984)

37 Cal.3d 351, 377 [208 Cal.Rptr. 236, 690 P.2d 709], overruled on other grounds in

People v. Mendoza (2000) 23 Cal.4th 896, 914 [98 Cal.Rptr.2d 431, 4 P.3d 265];

People v. Fudge (1994) 7 Cal.4th 1075, 1110 [31 Cal.Rptr.2d 321, 875 P.2d 36];

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People v. Palmer (1984) 154 Cal.App.3d 79, 89 [203 Cal.Rptr. 474] [error to refuse

defendant’s requested instruction on eyewitness testimony].)

Whenever there is evidence a witness has expressed certainty about an identification,

give the bracketed language beginning with “How certain was the witness” and the

bracketed paragraph that begins with “A witness’s expression of certainty” along

with any applicable bracketed factors.

Whenever there is evidence a witness has expressed doubt about an identification,

give the bracketed language beginning with “How certain was the witness” upon

request, and do not give the bracketed paragraph that begins with “A witness’s

expression of certainty” nor any of the factors that follow.

AUTHORITY

• Factors. People v. Wright (1988) 45 Cal.3d 1126, 1139, fn. 9, 1141 [248

Cal.Rptr. 600, 755 P.2d 1049]; People v. West (1983) 139 Cal.App.3d 606, 609

[189 Cal.Rptr. 36].

• Certainty Factor. People v. Lemcke (2021) 11 Cal.5th 644 [278 Cal.Rtpr.3d 849,

486 P.3d 1077].

• Reasonable Doubt. People v. Hall (1980) 28 Cal.3d 143, 159-160 [167 Cal.Rptr.

844, 616 P.2d 826], overruled on other grounds in People v. Newman (1999) 21

Cal.4th 413, 422, fn. 6 [87 Cal.Rptr.2d 474, 981 P.2d 98].

COMMENTARY

The court should give the unbracketed factors, if requested, in every case in which

identity is disputed. A blank space has also been provided for the court to include

any factual circumstances relevant to eyewitness identification that have not been

addressed in the preceding list of factors.

In People v. Wright (1988) 45 Cal.3d 1126, 1139 [248 Cal.Rptr. 600, 755 P.2d

1049], the court suggested that the trial court select factors from an approved list of

eyewitness identification factors and then give counsel the opportunity to

supplement with any additional relevant factors. (Id. at pp. 1126, 1143.) Additional

“pinpoint” factors should be neutrally written, brief, and nonargumentative. (Ibid.;

see also People v. Gaglione (1994) 26 Cal.App.4th 1291, 1302-1303 [32

Cal.Rptr.2d 169], overruled on other grounds in People v. Martinez (1995) 11

Cal.4th 434, 452 [45 Cal.Rptr.2d 903, 908 P.2d 1037].)

RELATED ISSUES

Police Procedures in Conducting Eyewitness Identifications

In People v. Lemcke,supra, 11 Cal.5th at pp. 664-665, the Supreme Court

recognized that the jury may require a further understanding of the type of police

procedures that may be suggestive or confirmatory of an eyewitness’s identification.

Penal Code section 859.7 sets forth standards for law enforcement when conducting

photo lineups and live lineups in order to ensure reliable and accurate eyewitness

identifications.

EVIDENCE CALCRIM No. 315

SECONDARY SOURCES

5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial,

§§ 720-722.

2 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 31,

Eyewitness Identification, §§ 31.01-31.07 (Matthew Bender).

4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,

Submission to Jury and Verdict, § 85.03[2][b] (Matthew Bender).

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Page last reviewed May 2024