Opinion By: Justice Groban (unanimous decision)
Although the witness certainty factor in the eyewitness identification instruction (CALCRIM No. 315) could be misleading, the instruction did not violate defendant’s due process rights to a fair trial when considered in the context of the trial record as a whole. Defendants Lemke and Rudd were convicted of assault and robbery based almost entirely on the testimony of one witness who expressed certainty in her identification. At trial, Rudd’s counsel moved to strike one of the factors listed in the eyewitness identification instruction (CALCRIM No. 315), which he argued improperly correlates a witness’s certainty with the accuracy of the identification. The request was denied. On appeal, Rudd argued the witness certainty factor lightened the prosecution’s burden of proof in violation of due process. The Court of Appeal affirmed. The California Supreme Court granted review. Held: Affirmed. A jury instruction may infuse the trial with unfairness so as to deny due process of law. However, an instruction may not be judged in isolation; it must be considered in the context of the instructions given as a whole and the trial record. CALCRIM No. 315 sets out 15 factors the jury should consider when evaluating the credibility of eyewitness testimony. The witness certainty factor does not operate to lower the prosecution’s burden of proof, as it does not direct the jury to assume that witness certainty equals accuracy. Rudd was permitted to present expert testimony regarding eyewitness identification to combat that inference, and the jury was instructed it must consider the expert’s opinion. In addition, other instructions at trial further counter Rudd’s argument that the witness certainty language in CALCRIM No. 315 lowered the burden of proof. While a modified version of the witness certainty factor in the instruction is advisable, that alone does not establish a due process violation in light of the record as a whole.

The Judicial Council and its Advisory Committee on Criminal Jury Instructions should evaluate whether or how CALCRIM No. 315 might be modified to avoid juror confusion regarding the correlation between witness certainty and accuracy. “Although the language in CALCRIM No. 315 does not state that a certain identification is more likely to be accurate, the instruction does nothing to disabuse jurors of the common misconception that such a correlation exists.” “[T]here is now near unanimity in the empirical research that eyewitness confidence is generally an unreliable indicator of accuracy.” Yet, many studies have shown that eyewitness confidence is the most influential factor in juror determinations regarding the accuracy of an identification. The instruction is therefore potentially misleading and should be revised. The court referred the matter to the Judicial Council and its Advisory Committee on Criminal Jury Instructions to determine whether or how the instruction might be modified to avoid juror confusion regarding the correlation between certainty and accuracy. Until the instruction is modified, trial courts should omit the certainty factor from CALCRIM No. 315, unless the defendant requests otherwise.