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Tegoseak v. State (12/11/2009) ap-2248

Tegoseak v. State (12/11/2009) ap-2248

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts:

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us


         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


FRANK MOSES TEGOSEAK,              
                                   
                    Appellant,          Court  of Appeals No.  A-
                                   10074
               v.                            Trial Court No. 3AN-
                                   05-5489 Cr
STATE OF ALASKA,                   
                                   
                    Appellee.                      O  P  I  N   I
End of Caption                     O  N
                                   
                                   
                                    No. 2248    December 11, 2009
                                   
          Appeal  from the Superior Court,  Third  Judi
          cial   District,   Anchorage,   Michael    L.
          Wolverton, Judge.

          Appearances:   Tracey  Wollenberg,  Assistant
          Public  Defender, and Quinlan Steiner, Public
          Defender, Anchorage, for the Appellant.  Eric
          A.  Ringsmuth,  Assistant  Attorney  General,
          Office  of Special Prosecutions and  Appeals,
          Anchorage,  and  Richard A. Svobodny,  Acting
          Attorney General, Juneau, for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Bolger, Judges.

          MANNHEIMER, Judge.
          BOLGER, Judge, concurring.

          Following  a  jury  trial,  Frank  Moses  Tegoseak  was
convicted of felony driving under the influence and driving  with
a suspended license.1  Both the grand jury that indicted Tegoseak
and  the  trial  jury that convicted him heard the  testimony  of
Robert  Maestas,  a private citizen who observed  a  Ford  Bronco
being  driven  in  an obviously impaired manner,  and  who  later
identified  Tegoseak from a photographic lineup as having  driven
the Bronco.
          In   pre-trial  motions,  Tegoseak  argued   that   the
photographic lineup was conducted in an unduly suggestive  manner
and  that  the superior court should therefore suppress  Maestass
identification  of Tegoseak as the driver.  The  superior  court,
employing  the test set forth in Manson v. Brathwaite,  432  U.S.
98,  97  S.Ct. 2243, 53 
L.Ed.2d 140 (1977), concluded that Maestass identification of Tegoseak was reliable despite the arguable flaws in the way the photo lineup was conducted. The court therefore denied Tegoseaks motions and allowed evidence of the identification to be admitted at Tegoseaks trial.
We agree with Tegoseak that there are troublesome aspects to the photographic lineup procedure in this case. In addition, we are aware that scientific research conducted during the past thirty years has cast doubt on the analysis set forth in Manson v. Brathwaite raising questions as to whether that analysis is a valid method for ascertaining whether a photographic lineup has yielded a reliable identification. Nevertheless, we conclude that any potential suggestiveness in the photo lineup in Tegoseaks case was harmless beyond a reasonable doubt, and we therefore affirm Tegoseaks convictions.
Underlying facts

          On   June   19,  2005,  Robert  and  Michelle
Maestas2  were  driving  around  the  Anchorage   area,
looking for a house to purchase.  They observed a  Ford
Bronco  that  was traveling slower than normal.   While
they watched, the Bronco swerved and repeatedly changed
lanes without apparent cause.
          The  Maestases could see three  occupants  in
the  vehicle:  two males in the front seat, and another
person  in  the  back  seat.   Using  her  cell  phone,
Michelle Maestas called the Anchorage Police dispatcher
to  report  this  vehicle because she and  her  husband
thought that the driver was drunk.
          After  making  this call to the  police,  the
Maestases  temporarily lost sight of  the  Bronco,  but
they  came upon it again a few moments later.   It  was
still being driven in an erratic manner.  The Maestases
then  decided  to  follow the  car.   Michelle  Maestas
called  the Anchorage police once more, and  this  time
she remained on the line to assist officers in locating
the Bronco as it continued to travel through Anchorage.
          The  Maestases  followed the  Bronco  to  the
parking  lot  of Bells Nursery on DeArmoun Road,  where
the  Bronco stopped.  Robert Maestas parked the couples
car  near the nursery parking lot in order to  keep  an
eye  on the Bronco while they waited for the police  to
arrive.
          While  the  Bronco was parked  in  the  Bells
Nursery  parking  lot,  Mr. and Mrs.  Maestas  saw  the
driver  and  the front-seat passenger emerge  from  the
Bronco  and  swap  places.  While these  two  men  were
outside the vehicle, Robert Maestas was able to observe
them.
          Maestas  described both males as having  dark
or black hair.  He described the man who was originally
driving  the Bronco (and who switched to the  passenger
seat  in  the nursery parking lot) as having a  slender
build and wearing a black shirt.  Maestas described the
other  man (that is, the man who was originally in  the
passenger seat of the Bronco, and who began driving the
vehicle after the switch in the nursery parking lot) as
a  heavier set gentleman who was wearing a white ... T-
shirt.
          After  the  two  men switched places  in  the
Bronco,  the  Bronco left the nursery parking  lot  and
headed  east on DeArmoun Road.  Just after  the  Bronco
started  up  DeArmoun, Anchorage Police Officer  Gerald
          Asselin arrived and conducted a traffic stop of the
vehicle.
          When  Officer Asselin stopped the Bronco,  he
found that there were two men and one woman inside  the
vehicle.   The  man driving the vehicle was  wearing  a
white  T-shirt, and the male passenger  was  wearing  a
black  shirt.  The driver was later identified as Edgar
Henry, while the passenger was identified as Tegoseak.
          Because his dispatcher had informed him  that
the  driver  and  passenger had just  switched  places,
Officer Asselin questioned both men about who had  been
driving the Bronco before the vehicle stopped at  Bells
Nursery.  Based on the mens responses (both verbal  and
non-verbal), Asselin concluded that Tegoseak  had  been
driving  the  vehicle prior to the stop at  Bells.   In
particular,  as  Asselin later testified,  Edgar  Henry
told  the  police  that he had taken over  driving  the
Bronco after the stop at Bells Nursery because Tegoseak
had been driving so poorly that he thought Tegoseak was
going to kill them.
          Officer   Asselin  conducted  field  sobriety
tests of both Henry and Tegoseak.  Based on the results
of  these  tests,  the officer concluded  that  he  had
probable cause to arrest both men.  A subsequent breath
test  showed that Tegoseak had a blood alcohol  content
of .227 percent (in other words, just under three times
the legal limit).3
          One week later, on June 26th, Officer Asselin
contacted Robert and Michelle Maestas and asked them to
view  a  photographic  lineup  to  see  if  they  could
identify the two men in the Bronco.  This photo  lineup
was comprised of two separate arrays of six photographs
each.   The  two arrays were composed so that  each  of
them  contained a photograph of one of the men  in  the
Bronco.   (The  first array contained a  photograph  of
Edgar  Henry  in  position number 5; the  second  array
contained  a  photograph of Frank Tegoseak in  position
number 5.)
          Asselin  showed the photo arrays to  Mr.  and
Mrs.  Maestas separately.  He told them that  he  would
show  them two photo arrays, and he asked them  to  let
him  know if they recognize[d] any of those individuals
as being involved.  When Asselin showed the first array
to Mr. and Mrs. Maestas, he reminded them that, if they
did  not recognize anyone from the first array  of  six
photographs, he had a second set of photographs to show
them.
          After  Michelle  Maestas  examined  the   two
arrays of photographs, she picked one person from among
the  twelve  photographs as having been in  the  Bronco
but that person was neither Henry nor Tegoseak.
           After  Michelle Maestas failed  to  identify
either  Henry or Tegoseak, Officer Asselin  showed  the
photographs to Robert Maestas.
          When Robert Maestas was shown the first array
          of six photographs, he selected three people from this
array as the possible occupants of the Bronco.  Maestas
told Asselin, [I]t could have been [number] 1 or 3 that
was  driving  [the Bronco originally], and  [number]  5
that  was in the passenger seat.  ...  I think  [that],
between  1 and 3, those two [photographs] kind of  look
like the driver that we originally pulled up next to.
          The  three photographs that Maestas  selected
were  of  Edgar  Henry and two fillers   that  is,  two
people whose photographs were included, not because the
police  suspected  that  they were  connected  to  this
incident,  but  rather to fill out  the  six-photograph
array.
          At  this  point  that is, after  Maestas  had
apparently identified both the original driver and  the
original  passenger from among the photographs  in  the
first array  Asselin said to Maestas, Let me try to  at
least show you [the second array of photographs];  then
you  can see the entire compilation of photos.  So far,
youve said [that] 1 and 3 [in the first array] could be
the  driver.   Asselin then showed Maestas  the  second
array of six photographs.
          When  Maestas looked at the second  array  of
photos,  he  told Asselin that photograph number  5  in
this second array could also potentially be the initial
driver  of the Bronco (that is, the man who was driving
before the driver and passenger switched places in  the
nursery  parking lot).  Maestas told Asselin  that  the
man originally driving the car was either [number] 5 in
[the  second array] or [number] 1 in [the first array].
(As we explained above, Tegoseaks picture was number  5
in the second photo array.)
          Asselin  asked  Maestas  to  memorialize  his
identifications  on  two different Photographic  Lineup
forms.   These forms (one for each of the  two  arrays)
apparently had boxes on them that corresponded  to  the
photographs  in the arrays.  Asselin asked  Maestas  to
place  a  check mark on the boxes that corresponded  to
the photographs he had selected.
          On  the first of these forms (i.e., the  form
that  corresponded to the first photo  array),  Maestas
stated  that he identified photograph number 5  in  the
first  array  as the man who began driving  the  Bronco
after  the  car stopped at the nursery.  (As  explained
above, this photograph was of Edgar Henry.)
          Asselin  then handed Maestas the second  form
(i.e.,  the  form  corresponding to  the  second  photo
array).  Although Maestas had told Asselin that he  was
uncertain whether the original driver of the Bronco was
photograph  number 1 from the first array or photograph
number  5  from  the  second  array,  Asselin  directed
Maestas  to put a check mark in only one box   the  box
corresponding  to photograph number 5 from  the  second
array.
          Asselin  invited Maestas to add a handwritten
notation   explaining   his   uncertainty   about   the
identification.   Maestas  wrote  on  the  form,   When
looking  at  the photos, both [photograph] #5  on  [the
second  array] and [photograph] #1 on [the first array]
look  similar to the original driver that we ...  first
[saw].
          However,  Officer  Asselin  added   his   own
separate  notation  to  this  form.   In  the  officers
notation,  he  indicated  that  Maestas  had  made   an
identification  from  the  photographs,  and  that  the
person Maestas had identified was Frank Tegoseak  (who,
as  we explained above, was photograph number 5 in  the
second array).  Maestas signed this form.
          This same ambiguity concerning the nature  or
precision  of  Maestass identification is reflected  in
the  testimony  given by Asselin  and  Maestas  at  the
evidentiary hearing.
          At the hearing, Asselin testified that he did
not  remember  the exact exchange between  himself  and
Maestas,  but  it was clear to [him],  based  upon  the
[conversation], that [Maestas] identified  [photograph]
number  5 [in the second array] as being ... the person
who   was  originally  driving  the  vehicle.   Asselin
conceded that, while he was showing the photographs  to
Maestas,   there  was  some  conversation   ...   where
[Maestas]  would say, Well, [photograph] number  1  [in
the first array] looks very similar, but [Maestas] came
back  to it being [photograph] number 5 [in the  second
array].
          When  Maestas  testified at  the  evidentiary
hearing,  he  acknowledged  that  he  was  hesitant  to
positively identify either photograph 1 from the  first
array  or  photograph 5 from the second array   because
the two photos look similar, ... and [because it was] a
week  [after  the  incident].  When Maestas  was  asked
whether  he  had  made  a positive  identification,  he
responded,  I wouldnt say it was 100 percent  positive;
no.
          After   hearing  this  testimony,  and  after
listening  to  Officer Asselins tape recording  of  the
photo lineup procedure, Superior Court Judge Michael L.
Wolverton concluded that the photo lineup procedure was
not unduly suggestive.
          In particular, Judge Wolverton found that the
filler  photographs were well-selected  (in  the  sense
that  the  people depicted in these filler  photographs
were  visually similar to the two suspects).  The judge
suggested  that  this  fact  (the  good  selection   of
fillers) was potentially the explanation for Robert and
Michelle  Maestass  difficulty in selecting  Henry  and
Tegoseak from among the photographs.
          Judge Wolverton also concluded that there was
nothing wrong in Officer Asselins act of drawing Robert
Maestass  attention to the second array  after  Maestas
had  already  declared that the first  array  contained
photographs  of  both suspects.  The judge  found  that
Asselin  was  not  trying to suggest that  Maestas  had
chosen prematurely, or to suggest that the second array
contained a photograph of at least one of the suspects.
Rather,  Judge Wolverton found that Asselin was  simply
trying  to  explain the procedure (i.e.,  the  need  to
examine  both  arrays)  and  to  request  that  Maestas
withhold  his  final judgement until he  had  seen  all
twelve of the photographs.
          Judge  Wolverton also concluded  that,  given
the circumstances of the case, there was essentially no
possibility of a misidentification.  The judge remarked
that  this  might [have been] a different situation  if
[the occupants of the Bronco] had not been followed and
[immediately arrested]  almost like a hand-off  to  the
police  [but] we know who was in the vehicle [when]  it
was  stopped,  [and the photo lineup]  was  [merely]  a
determination  as  to  ...  who  was  driving  when   a
determination  that  was made easier  ...  because  one
[man]  was  wearing a white shirt and [the  other]  was
wearing a black shirt.

Tegoseaks  claim that his indictment is flawed  because
the  prosecutor  did  not inform the  grand  jury  that
Michelle Maestas failed to identify Tegoseak as one  of
the  men  in  the  Bronco,  and  that  Robert  Maestass
identification of Tegoseak was less than certain

          Under  Alaska law, a prosecutor  must  inform
the  grand  jury of exculpatory evidence known  to  the
government.4  Tegoseak contends that the prosecutor  in
his  case  violated  this duty  in  two  ways.   First,
Tegoseak  argues  that the prosecutor was  required  to
tell  the  grand  jury that Michelle  Maestas  had  not
identified  Tegoseak as one of the men  in  the  Bronco
and  that,  in  fact, the only man  she  identified  as
having  been  in  the  Bronco was  a  filler.   Second,
Tegoseak  argues  that the prosecutor was  required  to
tell the grand jury that Robert Maestass identification
of Tegoseak was less than certain.
          For  purposes of defining a prosecutors  duty
to  present evidence to the grand jury, we have defined
the  term exculpatory evidence narrowly:  it means only
the  type of evidence that tends, in and of itself,  to
negate the defendants guilt.5  Thus, we have held  that
a  witnesss  failure to identify the defendant  as  the
perpetrator of the crime, or the fact that  a  witnesss
post-event description of the perpetrator did not match
the  defendant, was not exculpatory evidence, given the
other evidence linking the defendant to the crime.6
          For  example, in Haag v. State, 117 P.3d  775
(Alaska  App.  2005),  the defendant  (who  was  white)
argued that the prosecutor violated the duty to present
exculpatory evidence because the prosecutor  failed  to
inform  the  grand jurors that a witness to  the  crime
          initially reported that the two perpetrators were
black.  Id. at 777-78.  We held that, in the context of
the  other  evidence linking Haag  to  the  crime,  the
witnesss  description of the perpetrators as black  was
not exculpatory:  The fact that [the witness] initially
stated  that  both  robbers  were  black  is  certainly
something  that a defense attorney might use to  attack
[the  witnesss] later identification of Haag as one  of
the  robbers.  But this is not information that negates
Haags  guilt in and of itself.  Haag, 117 P.3d  at  778
(emphasis added).
          In   Tegoseaks  case,  the  police  responded
quickly  to  the  Maestass report of the  Bronco  being
driven  in  an erratic manner, and there is essentially
no  doubt that, when the police stopped the Bronco, the
vehicle  contained  the same people that  Michelle  and
Robert  Maestas had observed minutes before.  As  Judge
Wolverton noted when he issued his rulings on Tegoseaks
pre-trial  motions, there is essentially no possibility
that  Tegoseak was misidentified as one of the  drivers
of the Bronco.
          Given  these  circumstances, it is  extremely
unlikely  that  the  grand jurors  decision  to  indict
Tegoseak would have been altered if they had known that
Michelle Maestas identified another mans photograph  in
the  photo  lineup,  or if they had known  that  Robert
Maestass  identification  of Tegoseaks  photograph  was
uncertain.   For this reason, either the evidence  that
Tegoseak complains of was not exculpatory as that  term
is  defined  in  our  cases, or the States  failure  to
apprise the grand jurors of this evidence was harmless.

Tegoseaks claim on appeal, and a preliminary discussion
of  the  problems that can be encountered in post-crime
eyewitness identification

          On  appeal, Tegoseak renews his argument that
the    photographic   lineup   procedure   was   unduly
suggestive, and he further argues that when  the  facts
of the case are analyzed under the factors set forth in
Brathwaite,  this  analysis fails to  demonstrate  that
Robert Maestass identification of him was reliable.
          The photographic lineup in this case does not
appear  to  be overtly suggestive.  As Judge  Wolverton
noted when he denied Tegoseaks suppression motion,  the
ten  filler  photographs are quite similar to  the  two
suspects photographs in facial characteristics and hair
style.    In   other   words,  Henrys   and   Tegoseaks
photographs   did  not  stand  out  from   the   filler
photographs  in  such an obvious way as to  practically
single out these two men as the suspects.
          But even though a photographic lineup may not
be  overtly  suggestive,  the procedure  by  which  the
photographs  are  selected, the procedure  by  which  a
photo  lineup  is  displayed  to  a  witness,  and  the
procedure  by  which  the  witnesss  identification  is
elicited,  can engender suggestiveness  even when  this
is  not  the  intention of the officer  conducting  the
lineup.
          Medical researchers have long recognized  the
phenomenon that testers influence the persons they  are
testing.   Even  though one might  think  that  a  test
subjects physical reaction to an experimental  drug  or
therapy would remain the same regardless of the  mental
attitude  or desires of the researchers, the  truth  is
that   the   researchers  expectations  regarding   the
experiment do make a difference to the result.
          One well-known problem is the placebo effect:
the  recognized phenomenon that when a person  believes
that  they are receiving an effective drug or  therapy,
their  body  will  physically react in accordance  with
their  belief   even though the substance or  treatment
they  are  receiving  would ordinarily  do  nothing  to
alleviate their condition.
          But  the  placebo  effect  is  compounded  by
another  difficulty  known as the Clever  Hans  effect.
This  is the problem that researchers, because of their
knowledge  of  the  experiment and  their  expectations
concerning  the outcome, can unintentionally  influence
the  responses  of  the test subjects   by  unconscious
signaling, or by small differences in how they interact
with  test subjects who are receiving the real drug  or
therapy as opposed to a placebo.7


          In the late 1980s (that is, approximately ten
years  after  the Supreme Court issued its decision  in
Brathwaite),  Professor Gary L.  Wells  of  Iowa  State
University  noted  that photographic lineups  could  be
affected  by these same difficulties  that  the  police
officers  who  conducted  photographic  lineups   could
unwittingly  be  influencing the  witnesses  they  were
interviewing.   Professor  Wells  accordingly  proposed
that  photo  lineups (like medical  trials)  should  be
conducted  using a double-blind procedure.8   In  other
words, (1) the lineup should be conducted by an officer
who  does  not  know  which photograph  in  the  lineup
represents  the  suspect  and  which  photographs   are
fillers,  and  (2)  because  witnesses  will  naturally
assume  that any photo lineup will contain a photograph
of the person whom the police suspect, the witness must
affirmatively be told that the lineup may not contain a
photograph of the perpetrator.
          In  his  article,  The  Double-Blind  Lineup:
General  Comments  and Observations (2008),9  Professor
Wells notes that police officers can inadvertently (and
often   unconsciously)  influence  witnesses  by   such
seemingly  innocuous comments as, I noticed you  paused
on  photograph number 3.  Or, when a witness  hesitates
between two or three photographs, the officer might say
          to the witness, Tell me about photograph 2  directing
the  witnesss  attention  to the  photograph  that  the
officer knows is the suspect, rather than to one of the
fillers.  Or, when the witness has picked a filler, the
officer  might ask, Is there any other photograph  that
stands out to you?  a question that obviously would not
be asked if the witness had selected the suspect.
          According  to  Professor  Wells,  there   are
currently  close to 200 cases in which (1)  the  police
identified a person as the suspected perpetrator  of  a
crime,  (2)  the suspect was included in a photographic
or  live lineup, (3) the witness who viewed the  lineup
identified  the  suspect as the  perpetrator,  (4)  the
suspect  was convicted, but (5) post-trial DNA  testing
proved that the suspect was innocent.
          One of these cases recently received national
publicity through the publication of the book,  Picking
Cotton,10  and  the related story that aired  in  March
2009 on the CBS television news show 60 Minutes.11
          As  described in the 60 Minutes story, in the
summer  of  1984,  a man broke into Jennifer  Thompsons
apartment  and  raped her at knife-point.   During  the
attack, Thompson forced herself to stay alert and study
this  man carefully  his physical characteristics,  his
voice, his accent  so that, if she survived, she  could
make  sure  that  he  was convicted  and  sentenced  to
prison.  After about half an hour, Thompson tricked the
rapist into letting her get up to fix him a drink;  she
then  took the opportunity to escape from her apartment
through the back door.
          Police  Detective  Mike  Gauldin  interviewed
Thompson  at the hospital, and he worked with  Thompson
to  assemble  a composite sketch of the rapist.   After
the sketch was broadcast, the police started to receive
tips  about the crime.  One of these tips was  about  a
young  man  named Ronald Cotton.  Cotton  worked  at  a
restaurant  near  Thompsons apartment,  and  he  had  a
previous conviction for breaking and entering, as  well
as a juvenile record for sexual assault.
          Three  days after the rape, Detective Gauldin
assembled   a  six-photograph  lineup  that   contained
Cottons  picture, and then he called Thompson  to  come
view the lineup.  Thompson studied the photographs  for
about  five minutes, and then she identified Cotton  as
the man who had raped her.
          Thompson  subsequently picked Cotton  from  a
live  lineup.   After  Thompson made  the  live  lineup
identification, the police informed her  that  she  had
picked  the same man that she previously selected  from
the  photo  lineup.   When  she  heard  this,  Thompson
remembers thinking, Bingo!  I did it right;  I  did  it
right.
          Later, Thompson identified Cotton again  when
she  testified at his trial.  Cotton was convicted  and
sentenced to life imprisonment plus 50 years.
          While in prison, Cotton met a man named Bobby
Poole.   Poole looked very similar to Cotton; in  fact,
some  of  the  prison stewards mistook  them  for  each
other.   Then Cotton heard, from a fellow inmate,  that
Poole  had  admitted raping Thompson.   Based  on  this
information, Cotton received a new trial.
          At  the  new trial, Cottons lawyers  summoned
Bobby  Poole  to court so that Jennifer Thompson  could
see  him.  But when Thompson looked at Poole,  she  did
not  recognize him.  Indeed, she felt nothing but anger
toward   Cotton  and  his  attorneys.   She   remembers
thinking,  How  dare you question  me?   How  dare  you
[suggest that I] could possibly have forgotten what  my
rapist  looked  like?  ...  The one  person  [I]  would
never forget?
          Cotton  was again convicted.  This  time,  he
received two life sentences.
          Seven years later (ten years after the rape),
Cotton watched the O.J. Simpson trial on television and
learned   about  DNA.   He  convinced  his  lawyer   to
investigate the possibility of DNA testing.   By  luck,
the  Birmingham, North Carolina police  still  had  the
rape kit, and the kit contained enough viable sperm  to
conduct  a  DNA  test.  The result:   Bobby  Poole  was
indeed the rapist  and Ronald Cotton was innocent.
          For people who care about our justice system,
this  is  a bittersweet tale.  A man spent a decade  in
prison  for a crime he did not commit  and yet  he  was
finally  exonerated, and he has even become  reconciled
with  the  woman  whose testimony sent him  to  prison.
Cotton  and  Thompson are now friends; they co-authored
the  book Picking Cotton, which describes the case, and
they  are  prominent  advocates  of  reform  in  police
identification practices.
          But for the judges and lawyers who administer
and   actively  participate  in  the  criminal  justice
system,   this   story  has  a  more  fundamental   and
disquieting  aspect.  What happened in  Ronald  Cottons
case lends anecdotal support to the scientific research
that  casts  doubt  on the validity of  the  Brathwaite
method  for  assessing  the reliability  of  eyewitness
identifications.

The test established by the Supreme Court in Manson  v.
Brathwaite, and how this test relates to the  facts  of
the Ronald Cotton case

          In  Brathwaite,  the  United  States  Supreme
Court    had    to   decide   whether   an   eyewitness
identification    should   be   suppressed    if    the
identification procedure was unnecessarily  suggestive.
As  this Court explained in Anderson v. State, 123 P.3d
1110,  1115  (Alaska  App.  2005),  the  precise  issue
confronting   the  Supreme  Court  in  Brathwaite   was
whether,    following   an   unnecessarily   suggestive
identification  procedure, the witnesss  identification
should be automatically suppressed or whether, instead,
the  government  should  be given  the  opportunity  to
demonstrate    the   reliability   of   the    witnesss
identification despite the undue suggestiveness of  the
procedure.
          In  Brathwaite, the Supreme Court rejected  a
rule  of  per se suppression and instead held that  the
witnesss  identification would  be  admissible  if  the
State   could  demonstrate  the  reliability   of   the
identification  under  the  totality  of   the   circum
stances.12   The  Supreme Court  defined  this  phrase,
totality of the circumstances, as encompassing the five
factors  that  the Court had set forth  in  an  earlier
decision, Neil v. Biggers:13
     $    the witnesss opportunity to view the perpetrator
          during the crime,
$    the witnesss degree of attention,
$    the accuracy of any prior description given by the
witness,
$    the witnesss level of certainty when making the
identification, and
$    the length of time between the crime and the
witnesss identification.
$     Brathwaite,  432 U.S. at 114, 97  S.Ct.  at  2253
(citing Neil v. Biggers, 409 U.S. at 199-200, 93  S.Ct.
at 382).
          With the Brathwaite reliability test in mind,
we now return to the facts of the Ronald Cotton case.
          One  of  the  crucial  events  in  that  case
occurred after Bobby Poole was finally identified as  a
suspect  in  the case and Ronald Cotton was  granted  a
second trial.  At that second trial, Poole was summoned
to  court  so  that Jennifer Thompson  would  have  the
opportunity to view Cotton and Poole together.
          As  we  explained  earlier in  this  opinion,
Thompson  spent half an hour in Pooles presence  during
the  rape.  During that half hour, Thompson consciously
paid  attention  to, and made a point  of  remembering,
Pooles  physical features and the nuances of his  voice
and  speech, so that she could be sure to identify  him
later.   Nevertheless, when Thompson saw  the  two  men
together in court, she did not recognize Poole  as  her
attacker.   Indeed, even though the two men  apparently
had  similar physical features, Thompson did  not  even
experience any uncertainty.  She reaffirmed that Cotton
was the rapist  and Cotton was convicted again.
          Years   later,  when  the  DNA  test  results
finally  proved  Cottons innocence,  Detective  Gauldin
(the detective who conducted the photo lineup) was  the
one who went to tell Thompson that Poole was the rapist
and  that Cotton was innocent.  Thompsons reaction was,
No,  that cant be true; its not possible.  ...  I  know
Ronald Cotton raped me.  Theres no question in my mind.
          Moreover, even after Thompson knew the truth,
her  memory  of the event remained the same:   whenever
she thought about the rape, or dreamed about it, it was
still Cottons face that she saw.
          This  last aspect of the case is particularly
troubling:   the  fact that Thompsons false  memory  of
Cotton  as  her attacker persisted even after  Thompson
knew (intellectually) that Cotton was innocent and that
Poole  had  committed the rape.  This false memory  was
clearly  the  result  of the identification  procedures
employed during the investigation  because Thompson was
not  previously acquainted with Cotton, and because she
was  in  Pooles presence (not Cottons presence)  during
the  half-hour of the rape.  But if the five Brathwaite
factors are applied to this case, it is obvious that  a
court  would  have  allowed  Thompson  to  testify  and
identify Cotton as her assailant  even if the court had
found   that   the   photo  lineup  was   unnecessarily
suggestive.
          Thompson had plenty of opportunity (a half an
hour)  to view the rapist.  And during the attack,  she
consciously  devoted her attention to  the  rapist,  so
that  she  would  remember his physical characteristics
and  voice.  Shortly after the rape, when Thompson  was
interviewed at the hospital, she worked with the police
to  develop  a  composite drawing of  her  attacker   a
drawing   that  resembled  Ronald  Cotton.   And   when
Thompson  was shown the photo lineup three  days  after
the  rape, she declared she was certain that Cotton was
her attacker.
          One might conclude that this is simply a rare
and  unfortunate  instance  where  application  of  the
Brathwaite factors would lead a court to admit evidence
of  a  mistaken identification.  But there is  another,
more  troubling conclusion that could be  drawn:   that
the  Brathwaite factors are inadequate to the  task  of
sorting   reliable  identifications   from   unreliable
identifications.
          A  photographic lineup is generally conducted
in private between a police investigator and a witness.
As  Professor Wells notes in the recent article he  co-
authored with Deah S. Quinlivan concerning the validity
of  the  Brathwaite factors, when a police investigator
conducts   a   photographic  lineup,  the  investigator
interacts  directly with the witness:  in effect,  they
have  a conversation about the photos.14  If the police
investigator  knows  which  photograph  represents  the
person  who is under suspicion, there is a danger  that
          the witnesss identification will be influenced by the
officers  knowledge  and  expectations,  even   though,
seemingly,  there  is  nothing  suggestive  about   the
procedure:
     
     [When  the  police investigator  knows  which
     photograph is the suspects photograph,  this]
     creates a situation very similar to one  that
     has been extensively studied by psychological
     scientists  in  other  contexts  in  which  a
     testers  knowledge or expectations  influence
     the  person being tested in a direction  that
     is  consistent with the testers knowledge  or
     expectations.   ...  There is no  presumption
     that  these tester effects are the result  of
     intentional efforts by the tester or that the
     tester  is  aware of influencing  the  person
     being  tested.   ...  [T]he concern  here  is
     with   the  kinds  of  influences  that   are
     unintentional,  natural  by-products  of  the
     [personal] interaction.
     
     Wells & Quinlivan at 7-8.
               Moreover,  the Brathwaite  decision
     appears  to  be  premised on  the  assumption
     that,   despite  the  suggestiveness  of   an
     identification procedure, a witness retains a
     true  memory  of  the  event  which  may   be
     independently sufficient to reliably identify
     the  perpetrator   if  the  witness  had   an
     adequate    opportunity   to   observe    the
     perpetrator,  if  the  witness   was   paying
     attention,   etc.    In  effect,   the   five
     Brathwaite factors are the test that a  court
     uses  to  determine if the witness is relying
     on  this  presumed independent memory  rather
     than   on   the  result  suggested   by   the
     identification procedure.
          Indeed,   even   the   dissent   in
Brathwaite subscribes to this notion  that  a
witness  retains a true memory of  the  event
that  exists  independent of  the  suggestive
photo lineup or show-up, and that this memory
can   be   retrieved  despite  the   previous
suggestive   procedure.   Justice   Marshall,
writing  in  dissent, suggested that  when  a
prosecuting  attorney learns that  there  has
been   a   suggestive   confrontation,    the
prosecutor  can  easily cure  this  error  by
arrang[ing] another lineup under scrupulously
fair conditions.  Brathwaite, 432 U.S. at 126-
27, 97 S.Ct. at 2259.
          But   as   Professors   Wells   and
Quinlivan  point  out  in  their  article  on
Brathwaite,   the   dominant    view    among
psychological scientists [is] that,  once  an
eyewitness has mistakenly identified someone,
that  [mis-identified]  person  becomes   the
witness  memory[,] and the error will  simply
repeat       itself      [in       subsequent
identifications].15
          This    observation   is    vividly
corroborated  by  the  facts  of  the  Ronald
Cotton case.  Even when Jennifer Thompson was
confronted with Bobby Poole (the real rapist)
in court, she had no recollection of him, and
she  re-affirmed her identification of Ronald
Cotton  as her attacker.  Indeed, this  false
memory  persisted  even after  Thompson  knew
that the memory was false:  she continued  to
see Ronald Cottons face when she thought back
to  the rape even after she learned that  the
DNA    testing   had   demonstrated   Cottons
innocence.
          Moreover, even assuming that a true
memory  exists  independently of  a  witnesss
exposure   to   a  suggestive  identification
procedure,  there is reason to doubt  whether
the  five  Brathwaite  factors  are  a  valid
method   for   judging  whether  a   witnesss
testimony reflects that independent memory.
          For   instance,  according  to  the
Wells  and Quinlivan article, when a  witness
is  asked to estimate how long they were able
to  observe  the perpetrator of a crime,  the
witness will often grossly over-estimate  the
amount  of time the perpetrator was in  their
view   especially  if the witness  was  under
stress  or anxiety at the time they  observed
the  events.16   Similarly,  a  witness  will
often  inaccurately minimize  the  amount  of
time  that their view of the perpetrator  was
blocked  by  another  person  or  a  physical
obstruction.17
          Perhaps  more  troubling  are   the
results  of  experiments  showing  that   the
comments of a police investigator can alter a
witnesss  perception or memory  of  how  long
they  were able to view the perpetrator,  and
how  good  their view was.  In  a  series  of
experiments, witnesses were given a poor view
of  a  simulated  crime, and then  they  were
shown a photo lineup that did not include the
culprit.18  The experiment centered on  those
witnesses who (mistakenly) identified one  of
the  people in the lineup as having committed
the  crime.   The lineup administrator  would
tell  some  of  these  witnesses,  Good;  you
identified  the suspect in this  case,  while
the  administrator would make  no  suggestive
          remark to the others.19
          Later,  when all of these witnesses
were  asked, How good was the view  that  you
had  of  the culprit? and How well could  you
make  out the details of the culprits  face?,
the  overwhelming majority of  witnesses  who
heard  no confirmatory remark conceded  that,
even  though  they had made an identification
from the lineup, their view was not very good
and  they  could  not  easily  make  out  the
details of the culprits face.20  On the other
hand,   the   witnesses   who   received    a
confirmatory   remark   from    the    lineup
administrator had very different  perceptions
of  their own experience.  Even though  these
witnesses  had  the same  poor  view  of  the
crime, about 25 percent of them reported that
they  had  a  good or excellent view  of  the
crime,  and 20 percent of them declared  that
they could easily make out the details of the
culprits face.21
          The  results  of these  experiments
suggest  that if the evidence in  support  of
the  first Brathwaite factor  opportunity  to
view   is  based solely on the self-reporting
of  the  witness, then a court would need  to
know  (and try to take account of)  what  was
said to the witness during the identification
procedure.  In other words, there  is  reason
to  believe that this first Brathwaite factor
is   not   independent  of   the   suggestive
identification procedure.
          Similarly,  many  experiments  have
shown   that   when  a  witness  receives   a
confirmatory   suggestive  remark   following
their identification of a person in a lineup,
this  tends  to  inflate  the  witnesss   own
perception  of how much attention  they  were
paying  to the perpetrator of the crime   the
second Brathwaite factor.22
          The  third  Brathwaite factor   the
witnesss   degree  of  certainty   in   their
identification  is obviously crucial  to  all
stages   of  a  criminal  investigation.    A
witnesss certainty (or lack of certainty) may
influence whether a person is charged at all,
or  whether the prosecutor takes the case  to
trial,  and  if the case goes to  trial,  how
much  weight  the  jury  will  give  to   the
witnesss testimony.
          Of   course,  life  provides   many
instances  of  people who are  certain  about
something  but who are nevertheless mistaken.
The   question   is:   is   there   a   valid
correlation between a witnesss certainty  and
          the correctness of their identification?
          Studies  have  shown  that,   among
witnesses who make an identification  (either
correct  or  mistaken)  from  a  lineup,  the
statistical correlation between the  witnesss
certainty  and  the  correctness   of   their
identification  can  be as  high  as  0.41.23
(Some studies suggest that the correlation is
lower.)   To  put this figure in perspective,
the  statistical correlation  between  height
and  sex  in  human  beings  is  considerably
higher  than  0.4.   In  other  words,  these
studies  suggest  that you  would  have  much
better success in predicting a persons sex if
you knew their height than you would have  in
predicting   the  accuracy  of   a   witnesss
identification  if  you  knew  the   witnesss
degree of certainty.24
          Nevertheless, the fact  that  there
is  a positive correlation between a witnesss
certainty   and   the   accuracy   of   their
identification  means that a witnesss  degree
of   certainty  is  some  indication  of  the
accuracy of their identification.25
          However,   as  is  the  case   with
Brathwaite  factors one  and  two,  a  lineup
administrators confirmatory remark can have a
substantial influence on a witnesss degree of
certainty.    In  one  study,  for   example,
witnesses  who mistakenly identified  someone
from  a lineup were later asked whether  they
had  been  positive or nearly  positive  when
they  made  their  identification.   Of   the
witnesses  who did not receive a confirmatory
remark from the lineup administrator, only 15
percent  reported that they had been positive
or  nearly  positive  when  they  made  their
selection from the lineup. However, among the
witnesses who received a confirmatory  remark
following  their mistaken identification,  50
percent  reported that they had been positive
or  nearly  positive  when  they  made  their
selection.26
          As  Professors Wells and  Quinlivan
observe,   one   crucial   aspect   of   this
experiment is that these witnesses were asked
after  the fact to report on their degree  of
certainty   at  the  time  they  made   their
identification.27  In other words, the lineup
administrators suggestive confirmatory remark
was  not  altering  the  witnesss  degree  of
certainty   at  the  time  they  made   their
selection  from  the  lineup.   Rather,   the
confirmatory remark was altering the witnesss
memory  their recollection of their degree of
          certainty at that earlier time.
          This    finding    has    potential
importance  to  a  judges  evaluation  of   a
witnesss   testimony   in   particular,   the
witnesss  self-report  of  their  degree   of
certainty   at any pre-trial hearing  on  the
Brathwaite  factors.   It  suggests  that   a
witnesss self-reported degree of certainty is
not necessarily trustworthy.
          The  fourth Brathwaite factor   the
accuracy    of   the   witnesss    pre-lineup
description  of the perpetrator   suggests  a
logical  error.  One can not know  whether  a
witnesss  description of the  perpetrator  is
accurate unless one knows who the perpetrator
is.
          As illustrated by the Ronald Cotton
case,  the  fact  that  a  witness  may  have
accurately described the defendant in advance
of   the   lineup,  and  then  selected   the
defendants  photograph from the lineup,  does
not   prove   guilt   unless   the   witnesss
recollection of the perpetrator is  accurate.
To   conclude  that  a  witnesss   pre-lineup
description  was accurate (in  the  sense  of
describing the true perpetrator of the crime)
simply because the witnesss description  fits
the physical characteristics of the defendant
is  to assume the very fact that needs to  be
proved.
          Instead  of  the  accuracy   of   a
witnesss  pre-lineup description, the  fourth
Brathwaite factor is more properly  concerned
with the consistency between the witnesss pre-
lineup description of the perpetrator and the
physical  characteristics of the person  whom
the  witness later selects in the lineup,  as
well as the degree of this consistency (i.e.,
the  amount  of  detail in the witnesss  pre-
lineup  description, and  how  much  of  that
detail    is    consistent   with    physical
characteristics  of  the  person   whom   the
witness selected in the lineup).
          This   fourth   Brathwaite   factor
suffers   from   an   underlying   analytical
weakness.  The probative value of this fourth
factor   i.e.,  the  consistency  between   a
witnesss   pre-lineup  description   of   the
culprit  and the physical characteristics  of
the  person  who  is later  selected  in  the
lineup   hinges  in  large  measure  on   the
assumption that the composition of the lineup
has  not been influenced by the witnesss pre-
lineup  description  of  the  culprit.   This
assumption is often false.  It is common  for
the police to rely on the witnesss pre-lineup
description    when   they    select    which
photographs  to include in a lineup   because
the  witnesss description is often one of the
primary  clues that the police rely  on  when
they  begin to narrow the field of  potential
suspects.
          Moreover,  some studies have  shown
that  when  witnesses are confronted  with  a
photo  lineup, they tend to select the person
who  looks  most  like their  memory  of  the
culprit, even when none of the photos matches
their  memory exactly.28  This is  apparently
what happened in the Ronald Cotton case.
          Even  though Detective Gauldin  did
not  expressly tell Thompson that  the  photo
lineup  contained a photograph of the  person
whom the police suspected, Thompson made  the
assumption that her attackers photograph  was
among  the six photos displayed to  her,  and
she believed that her job was to identify the
correct   photograph.   She  later  told   60
Minutes reporter Leslie Stahl, I ... remember
almost  feeling  like I was [taking]  an  SAT
[multiple choice] test.  You know, where  you
start  narrowing down your choices.  You  can
[immediately] discount A and B, [and then you
work on the others].
          What  does  this mean in  terms  of
Brathwaites fourth factor?  Professors  Wells
and    Quinlivan   suggest   the    following
hypothetical:   The police assemble  a  photo
lineup,  and  they include  a  photo  of  the
defendant  because  the  defendant  seems  to
match   the  witnesss  description   of   the
perpetrator.   The witness views  the  lineup
and  identifies the defendant.  A judge later
rules   that  the  lineup  was  unnecessarily
suggestive  because  the  filler  photographs
were too dissimilar to the photograph of  the
defendant.    But   then,   based   on    the
consistency  between the witnesss  pre-lineup
description of the culprit and the defendants
physical characteristics, the judge concludes
that  the  witnesss  identification  of   the
defendant  is  reliable.29   One  might  well
question  whether  courts should  indulge  in
this form of circular reasoning.

The judicial, legislative, and law enforcement response
to this research

     Despite  the  tension between the  Brathwaite
analysis  of  reliability and the results  of  the
past three decades psychological research into the
     dynamics of eyewitness identification, few courts
have  conducted a critical re-examination  of  the
Brathwaite approach.
          The  New York Court of Appeals was the  first
court  to  reject  Brathwaite on  state  constitutional
grounds:  People v. Adams, 423 N.E.2d 379, 383-84;  440
N.Y.S.2d  902, 905-07 (N.Y. 1981).  The New York  court
concluded  that  the  Biggers/Brathwaite  approach   to
assessing the reliability of eyewitness identifications
was  flawed, and so the New York court instead  adopted
the  per  se  rule of exclusion that the United  States
Supreme Court rejected in Brathwaite.  In other  words,
the New York court ruled that evidence of an eyewitness
identification arising from an unnecessarily suggestive
police-arranged   identification  procedure   must   be
suppressed,  regardless  of  the  Brathwaite   factors.
However,  the New York decision  rendered in 1981   was
not  based  on  the  nascent scientific  research  into
eyewitness identification; rather, it was based on  the
New   York   courts  agreement  with   the   Brathwaite
dissenters  that  it was simply too  risky  to  try  to
assess the reliability of an identification made during
an unnecessarily suggestive lineup or showup.
          Beginning in the early 1990s, courts began to
demonstrate   awareness  of  the   growing   scientific
criticism  of  the Brathwaite approach.   In  State  v.
Ramírez,  817  P.2d 774, 780-81 (Utah 1991),  the  Utah
Supreme  Court  adopted  a  modified  version  of   the
Brathwaite  factors.  The courts  primary  aim  was  to
craft  factors that more precisely define[d] the  focus
of  the relevant inquiry, and that expressly recognized
the  problem  of witness suggestibility   a  difficulty
that    has    no    comparable   emphasis    in    the
Biggers/Brathwaite factors.  See Ramírez, 817  P.2d  at
781.
          See  also  State v. Hunt, 69  P.3d  571,  576
(Kan.  2003) (adopting the Ramírez formulation  of  the
test  for  reliability  of  eyewitness  identifications
because the Ramírez factors present an approach to  the
identification   issue   which   heightens   ...    the
reliability   of  such  identification[s]   and   which
represents a refinement in the [Brathwaite] analysis).
          In  Commonwealth v. Johnson, 650 N.E.2d 1257,
1261-65  (Mass. 1995), the Massachusetts Supreme  Court
followed the lead of the New York Court of Appeals  and
rejected  the Brathwaite reliability analysis in  favor
of  a per se rule of exclusion (under the Massachusetts
constitution).  The Massachusetts court relied in  part
on    the    research    conducted   into    eyewitness
identification by Professors Gary Wells  and  Elizabeth
Loftus.  See Johnson, 650 N.E.2d at 1262 n. 9.
          The  year 2005 appears to have been a turning
point  of  sorts  in  the judicial recognition  of  the
growing   body   of  research  into  the  psychological
dynamics  of eyewitness identification.  In that  year,
two state supreme courts issued opinions that contained
lengthy  citations  and  discussions  of  the  research
literature:   State v. Ledbetter, 881 A.2d 290,  311-13
(Conn. 2005), and State v. Dubose, 699 N.W.2d 582, 591-
92  (Wis.  2005).  The Connecticut court  in  Ledbetter
concluded  that  the research data was  not  convincing
enough  to  abandon  the Brathwaite analysis,  but  the
Wisconsin  court  in  Dubose held  that  an  eyewitness
identification arising from an unnecessarily suggestive
showup  must  be  suppressed,  without  regard  to  any
Brathwaite reliability analysis.
          See also Smith v. Smith, unpublished, 2003 WL
22290984,  *10-14  (S.D. N.Y. 2003),  a  habeas  corpus
decision  which  contains a lengthy discussion  of  the
various  potential  flaws in eyewitness  identification
testimony.   The  federal court acknowledged  that  the
current  research  casts doubt on Brathwaite,  but  the
court  denied the defendants petition for habeas corpus
relief  because  the  state courts  that  affirmed  the
defendants conviction were not clearly wrong to  follow
the prevailing Brathwaite analysis.
          In  addition  to these few courts  that  have
responded  to the psychological research on  eyewitness
identification,   several   legislatures   and   police
agencies  have  enacted new laws or policies  based  on
this research.
          In  September  2005,  the Wisconsin  Attorney
General  issued  a  Model  Policy  and  Procedure   for
Eyewitness  Identification.30  This policy  recommended
that   all  police  agencies  utilize  a  double-blind,
sequential  photo  lineup  procedure.31   The   salient
details   of  this  procedure  are:   (1)  the  officer
conducting  the  photo lineup does  not  know  who  the
suspect  is, (2) the witness being interviewed is  told
that  the  culprit  may  not  be  included  among   the
photographs,  (3)  the photographs  are  shown  to  the
witness one at a time, rather than in a group, (4)  the
witness  is  not  told in advance how many  photographs
they  will  see, and (5) the witness is asked  to  rate
each  photograph separately (e.g., yes, no, or  unsure)
thus  minimizing the danger that the witness will  view
the  procedure  as a multiple choice test  where  their
task  is to pick the one photo that best matches  their
memory of the culprit.32
          In  April 2006, the California Commission  on
the  Fair  Administration of Justice issued its  Report
and     Recommendations    Regarding    Eye     Witness
Identification   Procedures.   In  this   report,   the
California  Commission likewise  recommended  that  all
police  agencies  in  the state adopt  a  double-blind,
sequential photo lineup procedure.33
          In  October  2008, a series of articles  that
appeared  in  the  Dallas Morning  News  highlighted  a
number  of  misidentifications  (and  ensuing  wrongful
criminal  convictions)  that resulted  from  suggestive
          showups and photo lineups.34  These articles contained
a  discussion  of  the  current psychological  research
regarding eyewitness identification, and they  prompted
the Dallas Police Department to alter their procedures.
          In  September  2009, USA Today reported  that
five  other  states  (Connecticut,  Georgia,  Maryland,
North  Carolina, and West Virginia) and  several  major
metropolitan  police  departments  are  changing  their
identification   procedures   in   response   to    the
psychological  research and the wealth  of  information
confirming  that  innocent  people  are  indeed   being
convicted      based     on     mistaken     eyewitness
identifications.35
          In  particular, North Carolina has enacted  a
statute  that  mandates double-blind, sequential  photo
lineup  procedures.   See North Carolina  Statute  15A-
284.52.  According to the USA Today article, one of the
leading  proponents of this revision of North Carolinas
lineup  procedures  was  Michael  Gauldin   the   chief
investigator in the Ronald Cotton case.36
          There  can be little doubt that these  recent
changes in the legal system have been prompted  by  the
confluence  of  two forces:  the increasing  amount  of
psychological research in this area, and the concurrent
development  of  forensic DNA testing.   As  Professors
Gary  L. Wells, Amina Memon, and Steven D. Penrod noted
in  their article, Eyewitness Evidence:  Improving  Its
Probative Value, 7 Psychological Science in the  Public
Interest 45 (2006), the last two decades have  seen  no
major   change   in   how   eyewitness   identification
scientists approach their work; rather, the  advent  of
forensic  DNA  testing has changed the  way  the  legal
system views eyewitness evidence.37
          The changing attitude of the legal system  is
attributable  to  the  fact  that  the  development  of
forensic   DNA   testing  in  the   1990s   [uncovered]
definitive  cases of the conviction of innocent  people
in   the   United   States,   and   that   [e]yewitness
identification error was at the heart of  the  evidence
used  to  convict the vast majority of  these  innocent
people.38   In  other words, DNA testing  provided  the
physical science confirmation of what the psychological
scientists had been suggesting for years  and this made
the non-scientific world begin to pay close attention.

A re-examination of the photo lineup in Tegoseaks case

          As  we  explained  earlier in  this  opinion,
Officer  Asselin  the lead investigator  in  this  case
knew  that Edgar Henry was photograph number 5  in  the
first  array of six photos and that Frank Tegoseak  was
photograph number 5 in the second array.  Asselin first
showed the two photographic arrays to Michelle Maestas,
but  she failed to identify either Edgar Henry or Frank
Tegoseak.    Thus,   when  Asselin  next   showed   the
photographs to Robert Maestas, Asselin knew  that  this
was  his final opportunity to get an identification  of
either Henry or Tegoseak from an eyewitness.
          As we also explained, when Robert Maestas was
shown  the  first  array, he correctly  identified  the
photograph of Henry (photograph number 5) as being  the
original  passenger  in the Bronco,  but  Maestas  also
incorrectly  identified photographs 1  and  3  of  this
first array as being the original driver.
          Asselin knew that this was wrong, so he  said
to Maestas, Let me try to at least show you [the second
array  of  photographs]; then you can  see  the  entire
compilation of photos.  So far, youve said [that] 1 and
3  [in  the first array] could be the driver.   Asselin
then   showed   Maestas  the  second   array   of   six
photographs.
          When   Judge  Wolverton  ruled  on  Tegoseaks
motion  to suppress Maestass identification, the  judge
concluded that Asselins remark to Maestas was not meant
to  suggest  that Maestas should keep looking  at  more
photos  because he had not yet successfully  identified
the  culprit.   Rather, Judge Wolverton concluded  that
Asselins  remark  was simply intended  to  clarify  the
photo  lineup procedure  to remind Maestas  that  there
were  two photo arrays, and that Maestas should examine
both arrays before he made his final selections.
          But  as  we  have explained, for purposes  of
assessing  the suggestiveness of the photo lineup,  the
crucial aspect of the communication between Asselin and
Maestas  was not Asselins intention when he made  these
remarks;   instead,   the  crucial   aspect   was   the
information  or  the suggestion that Maestas  may  have
drawn from these remarks.
          If    as  appears  likely   Maestas  knew  or
suspected  that the photo arrays contained  photographs
of  the  two  men whom Asselin knew to be the  culprits
(the  two  men who had been found in the Bronco),  then
when  Asselin  told  Maestas to keep  looking  at  more
photos  even  though Maestas had apparently  identified
both men, Asselins remark could well have suggested  to
Maestas that his initial selection was wrong, and  that
he had not yet identified the true culprit.
          This  is  not  to  imply  that  Asselin   was
consciously  attempting to manipulate Maestass  choice.
The  suggestiveness of the procedure  could  have  been
inadvertent on Asselins part  but real, nonetheless.
          The   potential  suggestiveness  of  Asselins
remark  could  only  have been  amplified  later,  when
Maestas  viewed the second array and told Asselin  that
the original driver of the Bronco was either photograph
1  in the first array (a filler) or photograph 5 in the
second  array  (Tegoseak).  Rather  than  have  Maestas
place  an  X  in the two boxes representing  these  two
photos, Asselin directed Maestas to place an X in  only
one box, the box representing Tegoseaks photo  although
Asselin  invited  Maestas to  add  a  written  notation
explaining  that Maestas thought that the  other  photo
might also be the driver.
          Asselins   reaction  to  Maestass   ambiguous
identification  was  not  necessarily  an  attempt   to
manipulate Maestas.  Rather, it might be attributed  to
the  phenomenon  of  observer  bias.   Both  scientific
researchers and police investigators can fall  prey  to
the  normal human tendency to pay attention to,  or  to
overemphasize, the results that they expect or hope  to
see   and the converse tendency to fail to observe,  or
to  ignore  the significance of, results  they  do  not
expect or hope to see.
          But  while  Asselin may not have intended  to
manipulate Maestas, his directions to Maestas may  have
affected  Maestass  perception  of  the  identification
procedure.   Asselins directions to Maestas potentially
constituted  an inadvertent suggestion that  photograph
number  5  in  the  second array (i.e.,  Tegoseak)  was
Maestass  real selection, and that photograph number  1
in  the  first array was only a subsidiary  alternative
selection.
          As  we explained earlier in this opinion, one
of the important findings of the psychological research
in   this   area  is  that,  if  a  witness  makes   an
identification during a suggestive lineup procedure and
then  the  witness receives some kind  of  confirmation
from the officer administering the lineup, the witnesss
after-the-fact  perception of their identification  can
be  altered:  the witness can become artificially  more
confident in their identification.  There is reason  to
believe that this is what happened to Robert Maestas.
          At   the  evidentiary  hearing  on  Tegoseaks
motion  to suppress, Maestas readily admitted  that  he
had  selected  two photos from the lineup as  look[ing]
similar to the man who was the original driver  of  the
Bronco   both  [number]  5 on [the  second  array]  and
number 1 on [the first array].  When Maestas was  asked
whether   his  identification  was  positive,   Maestas
conceded that it was not.
          But  by the time of Tegoseaks trial ten weeks
later,  Maestas  viewed the matter  differently.   When
Maestas was questioned about the photo lineup at trial,
he  now  declared  that, even though he  had  initially
wavered  between  photograph 1 in the  first  array  (a
filler)   and   photograph  5  in  the   second   array
(Tegoseak), he soon perceived that Tegoseak was the man
he had seen in the Bronco.
          Here   is   Maestass  testimony   on   direct
examination:
          Prosecutor:  And [with regard to]  Photo
     Lineup   B,   were  you  able  to   make   an
     identification [from that array]?
     
          Maestas:    I  was.   ...   [Photograph]
     number 5 ... was the original driver.
     
          Prosecutor:  And when you were asked  to
     make  the  identification, did  you  hesitate
     somewhat  between  [photograph]  5  [in   the
     second  array]  and [photograph]  1  [in  the
     first array]?
     
          Maestas:  I did; I did.  But then I  had
     recalled  the  way that the  gentlemans  ears
     kind of stuck out, after the fact.
     
          Prosecutor:  Okay.  And when you say the
     gentleman  thats [photograph] number 5?
     
          Maestas:      ...     Five.      Uh-huh.
     [affirmative]
     
               And  here is Maestass testimony  on
     redirect examination:
     
     Prosecutor:  You said [with  regard  to]
the  first photo lineup [that] you werent 100
percent  sure.  Did you become more  sure  as
you looked at those photos?

     Maestas:  I  I became more sure  when  I
recollected,  like  I  said,  what  I  really
distinctly  remember was  the  way  the  ears
stuck  out from the head, [from the] side  of
the head.

     Prosecutor:  Okay.

     Maestas:  Thats why I was able  to  make
my determination a little easier.

     Prosecutor:  And thats how you  selected
[photograph] number 5 [in the second array]?

     Maestas:  Yes.

          Maestas  said  nothing  about   the
distinctiveness of Tegoseaks ears during  the
photo lineup procedure itself, nor did he say
anything about this physical feature when  he
testified   at   the   suppression   hearing.
Rather,  as  Maestas himself  admitted,  [he]
became  more sure when [he] recollected.   By
the   time   of   Tegosaeks  trial,   Maestas
distinctly remember[ed] ... the way the  ears
stuck  out  from ... the side of  [Tegoseaks]
head,  and  he declared that he was  able  to
identify  Tegoseaks  photo  based   on   this
physical   feature.   This  is  arguably   an
example  of  the kind of altered  memory  and
altered  certainty described in the  research
literature.

Why we conclude that the potential suggestiveness of
the  photo  lineup is harmless beyond a reasonable
doubt

     We  have  covered  a lot of  ground  in  this
opinion:   a  lengthy  discussion  of  the  Ronald
Cotton  case,  a  look at some of  the  scientific
research    on    the   subject   of    eyewitness
identification, and a description  of  the  recent
efforts  in  various states and cities to  improve
eyewitness identification procedures.  All of this
naturally  leads  to  the  question:    What,   if
anything, should this Court do in response to what
society  has  learned in the  thirty  years  since
Brathwaite?
     We  first  wish  to clarify that  the  Ronald
Cotton case is simply one case, albeit a prominent
one.   What  happened  in that  case  may  provide
reason to question the Brathwaite analysis, but it
does  not  constitute scientific  proof  that  the
Brathwaite analysis is flawed.
     Second,  we  acknowledge that our examination
of the past three decades research has not been an
exhaustive  one.  There are many studies  in  this
area  that we have not mentioned.  And, of course,
there  are  questions in the scientific  community
about  the  methodology of particular studies,  as
well  as questions regarding the significance that
should  be  attributed to the results  of  various
studies.
     We  do  not  intend to endorse  a  particular
viewpoint or reach a definitive conclusion at this
time.   Rather,  our goals are  more  modest:   to
acknowledge   that  psychological  research   into
eyewitness   identification  has   furnished   new
insights  into  the  potential  suggestiveness  of
identification procedures, and to point  out  that
this  research has illuminated the related problem
that  a  suggestive identification  procedure  can
work  an  after-the-fact alteration of a  witnesss
memory of a criminal episode.
     We  need  go  no further at the present  time
because,  even  assuming  that  the  photo  lineup
procedure  in  Tegoseaks  case  was  unnecessarily
suggestive,  any  error  was  harmless  beyond   a
reasonable doubt.39
          When   Judge  Wolverton  ruled  on  Tegosaeks
suppression  motion,  he noted that  this  might  [have
been] a different situation if [Tegoseak and Henry] had
not  been  followed  and  almost  [handed]-off  to  the
police.  As Judge Wolverton correctly pointed out,  the
case  against Tegoseak was not a whodunit  not  a  case
where  the  police knew that a crime had been committed
but  did  not  know  the identity of  the  perpetrator.
Rather,  the  States evidence clearly  established  (1)
that  the Bronco was being driven in an erratic manner,
(2)  that  two men  one wearing a white shirt  and  one
wearing  a  black shirt  got out of the Bronco  in  the
nursery  parking lot and switched places before getting
back in the vehicle and driving off, (3) that only  two
men  were  in  the Bronco when the police  stopped  the
vehicle  minutes later  one wearing a white  shirt  and
one  wearing a black shirt, and (4) that, following the
stop, both men initially admitted to having just driven
the  car.  In addition, Officer Asselin testified  that
Edgar  Henry  told the police that he  had  taken  over
driving  the  Bronco after the stop  at  Bells  Nursery
because  Tegoseak had been driving so  poorly  that  he
thought Tegoseak was going to kill them.
          Given all of this, we have no doubt that  the
jury would have convicted Tegoseak even if Maestas  had
been unable to identify Tegoseak at trial, and even  if
the  jurors  had been told that Maestas was  unable  to
identify  the  driver  in the  photo  lineup,  or  that
Maestas  had  identified one of the  filler  photos  as
being the driver.  In other words, even if the superior
court  should have granted Tegoseaks motion to suppress
Robert  Maestass identification of him as  the  initial
driver  of the Bronco, any error was harmless beyond  a
reasonable doubt.

Conclusion

          The  judgement  of  the  superior  court   is
AFFIRMED.
BOLGER, Judge, concurring.

            The  research  cited in  the  lead  opinion
suggests that we should consider changes to the test we
currently  use  to  determine whether  a  photo  lineup
procedure satisfies due process of law.  But  I  choose
to withhold my opinion on this issue until both parties
have  the opportunity to submit their positions on  the
relevant research either through an evidentiary hearing
or  adversarial  briefing.   This  occasion  will  more
likely  arise in a case where the research is essential
to  the outcome.  In the present case, I agree with the
conclusion of the lead opinion:  Any error in the photo
lineup  procedure  was  harmless  beyond  a  reasonable
doubt.
_______________________________
  1 AS 28.35.030(n) and AS 28.15.291(a)(1), respectively.

2  Robert and Michelle Maestas were formerly known as Robert
and  Michelle  Mayer;  they changed  their  names  prior  to
Tegoseaks  trial.  Thus, in the grand jury transcript,  they
are  referred to as Mayer.  But at trial, and in the parties
briefs  to this Court, they are referred to by their current
names.

3 See AS 28.35.030(a)(2).

4 Cameron v. State, 171 P.3d 1154, 1157 (Alaska 2007); Frink
v. State, 597 P.2d 154, 164-66 (Alaska 1979).

5  See, e.g., Cathey v. State, 60 P.3d 192, 195 (Alaska App.
2002);  State  v. McDonald, 872 P.2d 627, 639  (Alaska  App.
1994).

6 See, e.g., Wilkie v. State, 715 P.2d 1199, 1201-02 (Alaska
App.  1986); Tookak v. State, 648 P.2d 1018, 1020-21 (Alaska
App. 1982).  See also Abruska v. State, 705 P.2d 1261, 1272-
73  (Alaska App. 1985) (holding that the victims potentially
contradictory statements about whether it was the  defendant
who shot him were not exculpatory evidence).

7  In  1891,  William von Osten began displaying his  horse,
Clever Hans, to the public.  Hans would answer questions  by
tapping  his  hoof  either by tapping out a  number,  or  by
tapping out the letters of the alphabet that corresponded to
the  answer  (with one tap equaling A, two taps equaling  B,
and  so  on).   Hans  could apparently perform  mathematical
calculations,  tell  time, identify musical  intervals,  and
name people.

Von  Osten did not intend to trick people.  He believed that
animals  possessed an intelligence equal to that  of  humans
and,  in his quest to prove this, he attempted to teach many
animals how to do simple calculations.  However, Clever Hans
was the only animal who showed any ability.

The first scientific test of Hanss ability was conducted  in
1904  by  Professor Carl Stumpf.  Stumpf looked for evidence
of  cheating  or trickery to explain Hanss ability,  but  he
found none, and he subsequently endorsed Hanss abilities  as
genuine.   Following  Professor Stumpfs endorsement,  Clever
Hans became a sensation, and people flocked to see him.

In 1907, a group of thirteen scientists (the Hans Commission)
re-tested  Clever Hans.  Their test is now recognized  as  a
classic experiment in psychology.

Because there was no evidence of connivance or cheating, the
scientists began with the assumption that Hans did  have  an
ability of some kind, and they designed their experiment  to
find out what this ability was.

Hans  was  tested  inside  a large  tent  to  avoid  outside
distractions,  such  as  spectators.   The  experiment   was
designed in the following way:
$      A   large   number  of  questions   were   used,   to
eliminate the effects of chance;
$    Different people posed these questions, in case
Hans was picking up signals from his owner, von Osten;
$    The questioners sometimes knew the answers to the
questions they were asking, but other times they did
not;
$    The questioners would stand at different distances
from Hans during different trials; and
$    Some trials were run with Hans blinkered.

The  first important finding was that Clever Hans needed  to
have  visual contact with the questioner in order to  answer
correctly.  The farther away the questioner stood, the  less
accurate Hans became.  And when Hanss peripheral vision  was
obstructed by blinkers, his ability to answer was diminished
even further.

The  other major finding was that Hans could only  answer  a
question correctly if the questioner also knew the answer to
the  question.  When the questioner did not know the  answer
to the question, Hans could not give the answer.

These facts  that Hans could only answer a question correctly
if  it  was  posed by a questioner who knew the answer,  and
only if Hans could see the questioner  led the psychologists
to perceive that Hans was not using intelligence to work out
the  answers; rather, he was responding to visual cues given
unwittingly by the questioner.  These unwitting visual  cues
took  the  form of increases or decreases in the tension  of
the  questioners  body,  changes in the  questioners  facial
expression,  and  other  involuntary  movements   that   the
questioner would make when Hans reached the right answer.

The  results  of  the experiment with Clever  Hans  led  the
scientists to the key insight that an animals  or a  persons
behavior can be influenced by subtle and unintentional  cues
given by a questioner or researcher.

This effect  now known as the Clever Hans effect  is one  of
the   primary   reasons  why  scientific  tests   (and,   in
particular,  clinical trials) must be done using  a  double-
blind   method:    a   procedure  in   which   neither   the
questioner/researcher nor the subject being tested knows the
nature  of  the information required or the treatment  being
administered.

Source:  John Jackson, Clever Hans (2005), available at:
www.skeptics.org.uk/article.php?dir=articles&article=clever_
hans.php

8 Gary L. Wells, Eyewitness Identification:  a system handbook
(Carswell Legal Publications, 1988); Gary L. Wells &  C.  A.
Elizabeth  Luus,  Police  Lineups  as  Experiments:   Social
methodology  as a framework for properly conducted  lineups,
16   Personality  and  Social  Psychology  Bulletin  106-117
(1990).

9                        Available                       at:
www.psychology.iastate.edu/~glwells/homepage.htm,    through
the link Meet the double-blind lineup.

10Jennifer Thompson-Cannino & Ronald Cotton, with Erin Torneo,
Picking Cotton: Our Memoir of Injustice and Redemption  (St.
Martins Press, 2009).

11Both the video and the text of the 60 Minutes story, Picking
Cotton (originally aired in March 2009) are available at:
www.cbsnews.com/stories/2009/03/06/60minutes/main4848039.shtml

12Brathwaite, 432 U.S. at 112-14, 97 S.Ct. at 2252-53, citing
Stovall v. Denno, 388 U.S. 293, 302; 87 S.Ct. 1967, 1972; 18
L.Ed.2d 1199 (1967).

13409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

14Gary  L.  Wells & Deah S. Quinlivan, Suggestive Eyewitness
Identification Procedures and the Supreme Courts Reliability
Test  in  Light of Eyewitness Science:  Thirty  Years  Later
[i.e., 30 years after Brathwaite], 33 Law and Human Behavior
1-24 (2009), DOI [Digital Object Identifier] 10.1007/s10979-
008-9130-3.

15  Id. at 9.

16  Id. at 10.

17  Id.

18  Id.

19  Id.

20  Id.

21  Id.

22  Id. at 11.

23  Id. at 12.

24  Id.

25  Id.

26  Id.

27  Id.

28  Id. at 13.

29  Id.

30This      model      policy     is      available      at:
www.doj.state.wi.us/dles/tns/eyewitnesspublic.pdf

31Id. at 3.

32Id.  at  3  &  8-9.   On page 9 of the model  policy,  the
Wisconsin  Attorney  General recommends that  the  following
instructions be given to each witness before a photo lineup:

In  a  moment, I am going to show you a series of photos.
The  person  who committed the crime may or  may  not  be
included.   I  do  not  know  whether  the  person  being
investigated  is included.  Even if you identify  someone
during  this procedure, I will continue to show  you  all
the photos in the series.
Keep  in  mind that things like hair styles, beards,  and
mustaches  can  be  easily changed  and  that  complexion
colors may look slightly different in photographs.
You  should  not feel you have to make an identification.
It  is as important to exclude innocent persons as it  is
to identify the perpetrator.
The photos will be shown to you one at a time and are not
in  any particular order.  Take as much time as you  need
to look at each one.  After each photo, I will ask you Is
this the person you saw [insert description of act here]?
Take  your  time answering the question.  If  you  answer
Yes,  I  will  then ask you, In your own words,  can  you
describe how certain you are?
Because you are involved in an ongoing investigation,  in
order  to prevent damaging the investigation, you  should
avoid  discussing  this identification procedure  or  its
results.
Do  you understand the way the photo array procedure will
be conducted and the other instructions I have given you?

33California Commission on the Fair Administration of Justice:
Report    and   Recommendations   Regarding   Eye    Witness
Identification Procedures (April 2006), page  5.   Available
at:
www.psychology.iastate.edu/~glwells/California_commission.pd
f

34See,  e.g.,  Steve McGonigle & Jennifer Emily,  18  Dallas
County  cases overturned by DNA relied heavily on eyewitness
testimony, Dallas Morning News, October 10, 2008.  Available
at:
www.dallasnews.com/sharedcontent/dws/dn/dnacases/stories/10120
8dnproDNAlineups.-263c4f5.html#slcgm_comments_anchor

For more information on this series of articles, see:
www.dallasnews.com/sharedcontent/dws/spe/2008/dna

35Kevin Johnson, States Change Police Lineups After Wrongful
Convictions, USA Today, September 17, 2009.  Available at:
www.usatoday.com/news/nation/2009-09-16-police-lineups_N.htm

36Id.

37Id. at 48.

38Id.

39  Constitutional error requires reversal of a criminal
conviction  unless the error is shown  to  be  harmless
beyond a reasonable doubt.  Chapman v. California,  386
U.S.  18, 24; 87 S.Ct. 824, 828; 17 L.Ed.2d 705 (1967);
Raphael  v.  State, 994 P.2d 1004, 1010 (Alaska  2000).
In  assessing  whether an error is  harmless  beyond  a
reasonable  doubt, the question is whether there  is  a
reasonable  possibility  that the  error  affected  the
result.  Dailey v. State, 65 P.3d 891, 896 (Alaska App.
2003),  citing  Smithart v. State, 988  P.2d  583,  589
(Alaska 1999).

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