Eyewitness Identification and CALCRIM No. 315

The California Supreme Court just published a new case decision telling trial courts to eliminate one of the listed 15 “factors to consider” when instructing a jury on what to consider when determining the validity of an eyewitness’ testimony identifying a defendant as the culprit in the crime at issue. (People v. Lemcke (May 27, 2021) __ Cal.5th __ [2021 Cal. LEXIS 3523].)  The factor dealing with an eyewitness’ “degree of certainty” (i.e., “How certain was the witness when he or she made an identification ”) should be dropped in that “empirical research” apparently has determined that “certainty” does not equate with “accuracy.”  Because the certainty factor might tend to mislead jurors, the court exercised its supervisory powers, directing trial courts to omit the certainty factor from CALCRIM No. 315 pending review by the Judicial Council (although a trial courts retains its discretion to ....