California Supreme Court Orders Trial Courts to Omit Misleading Instruction on Eyewitness Identifications; Kramer Levin Filed Amicus Brief on Behalf of the Innocence Project and Affiliated Organizations

Kramer Levin, representing the Innocence Project Inc., the California Innocence Project, the Project for the Innocent at Loyola Law School, and the Northern California Innocence Project, as amici curiae in the California Supreme Court, filed a brief in People v. Lemcke arguing that California’s criminal jury instruction on eyewitness certainty was misleading and increased the risk of wrongful convictions. The brief discussed the scientific consensus that while eyewitness certainty is generally not probative of accuracy, laypeople are unaware of that fact and tend to give undue credence to a witness’s self-reported confidence. The brief argued that the instruction, by directing jurors to consider accuracy, endorsed the false notion that confidence and accuracy are closely correlated.

In a decision issued on May 27, 2021, the California Supreme Court “agree[d] with amici curiae that a reevaluation of the certainty instruction is warranted.”  Noting the “now near unanimity in the empirical research that eyewitness confidence is generally an unreliable indicator of accuracy” and recognizing that “the current version of the instruction might confuse jurors about the relationship between confidence and accuracy,” the court  directed the “Judicial Council and its Advisory Committee on Criminal Jury Instructions to evaluate whether or how the instruction might be modified to avoid juror confusion regarding the correlation between certainty and accuracy” and directed courts to omit the faulty jury instruction in the interim.

The Kramer Levin team consisted of Litigation counsel David S. Frankel, Intellectual Property partner Hannah Lee, Litigation associate Aaron L. Webman, former Litigation associate John M. McNulty and paralegals Phil King and Steve Dennison.