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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

Michigan Law Firm - Warner Norcross + Judd LLP

The Michigan Court of Appeals refused to adopt a new jury instruction on the reliability of eyewitness identification testimony in <em><a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20160112_C315774_74_315774.OPN.PDF" target="_blank" rel="noreferrer noopener">People v. Blevins</a></em>, No. 315774.  A brief confrontation between two groups of young men in downtown Detroit turned deadly when one man, King, fired multiple shots from a gun.  King was charged with, among other things, first-degree premeditated murder.  The charges against defendant were based on evidence that he initially displayed the gun and then handed it to King.  The defense’s theory was that although defendant was present, he was not the man who handed the gun to King.  However, friends of the victims who were there that night identified defendant as that man.  Defendant was ultimately convicted.

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Defendant argued that his identification by four witnesses was the product of impermissibly suggestive pre-trial procedures that led to an irreparable misidentification.&nbsp; Furthermore, defendant argued that he received ineffective assistance of counsel because trial counsel did not present an expert witness on eyewitness identification, did not object to a witness’s identification of defendant, and agreed to an erroneous jury instruction regarding identification rather than seeking an instruction based on a New Jersey case, <em>State v. Henderson</em>, 27 A.3d 872, 896 (2011), on the topic of eyewitness identification.&nbsp; Although recognizing that eyewitness testimony may be unreliable generally, the majority found that the facts do not indicate that defendant’s identification in this particular case was erroneous.&nbsp; It stated that the photographic lineup procedure employed by the officers—placing defendant’s photograph first in the lineup and not using a “double blind” lineup—was not unduly suggestive.&nbsp; Furthermore, the court refused to adopt a novel jury instruction on eyewitness identification, finding that the standard jury instruction clearly requires the jury to evaluate how reliable a witness’s identification might have been.

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The <a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20160112_C315774_75_315774D.OPN.PDF" target="_blank" rel="noreferrer noopener">dissent</a> concluded that a new trial is merited because of errors arising out of the eyewitness identification testimony, referencing the growing body of research that demonstrates the unreliability of eyewitness identification.  As to the jury instructions, the dissent found that while the standard jury instruction directs the jury to consider the “state of mind” of the witness during the recalled event, it offers no guidance on this issue.  Simply advising jurors that they are to consider the witness’s state of mind without informing them of the generally accepted research based knowledge about the objective effect of those states of mind on memory is not enough.  Thus, defense counsel’s failure to present expert testimony or request a special instruction constituted ineffective assistance of counsel.

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Madelaine C. Lane

Labor and Employment

COA takes a look at the reliability of eyewitness identification

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COA takes a look at the reliability of eyewitness identification

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