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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Young v. State (6/17/2016) sp-7110

Young v. State (6/17/2016) sp-7110

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

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           303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                          

           corrections@akcourts.us.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                      



ARRON  N.  YOUNG,                                               )  

                                                                )          Supreme  Court  No.  S-15665  

                                Petitioner,                     )          Court  of  Appeals  Nos.  A-11006/11015  

                                                                )  

                                                                                                             

                     v.                                         )          Superior Court Nos. 4FA-08-03022/  

                                                                                       

                                                                )          02834 CR  

                     

STATE OF ALASKA,                                                )  

                                                                                               

                                                                )          O P I N I O N  

                                Respondent.                     )  

                                                                                                             

                                                                )          No. 7110 - June 17, 2016  



                                                                                                                   

                     P              

                        etition for Hearing from the Court of Appeals of the State of  

                                                                                                                   

                     Alaska, on Appeal from the Superior Court of the State of  

                                                                                                                 

                     Alaska,  Fourth  Judicial  District,  Fairbanks,  Michael  A.  

                                           

                     MacDonald, Judge.  



                                                                                                       

                     Appearances: Renee McFarland, Assistant Public Defender,  

                                                                                                                

                     and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for  

                                                                                         

                     Petitioner.  Eric A. Ringsmuth, Assistant Attorney General,  

                                                                                                       

                     Anchorage,  and  Craig  W.  Richards,  Attorney  General,  

                                         

                     Juneau, for Respondent.  



                                                                                                          

                     Before:  Fabe, Chief Justice, Stowers, Maassen, and Bolger,  

                                                                         

                     Justices.  [Winfree, Justice, not participating.]  



                                            

                     MAASSEN, Justice.  



I.         INTRODUCTION  



                     A defendant accused of involvement in a shooting was convicted at trial,  



                                                                                                                                      

in  part  on  the  strength  of  three  eyewitness  identifications.                                       He  challenged  the  



                                                                                                                                    

admissibility of two of the identifications on due process grounds, but the superior court  


----------------------- Page 2-----------------------

ruled  them  admissible.                The  defendant  also  requested  an  eyewitness-specific  jury  

                                                                                                                               



instruction, which the superior court refused.  Finally, the defendant argued that he was  

                                                                                                                                



entitled to a mistrial because of an alleged discovery violation by the State that he  

                                                                                                                                  



learned of mid-trial. The superior court denied his motion, finding that the State had not  

                                                                                                                                 



violated the disclosure rules and alternatively that the defendant had not suffered any  

                                                                                                                                



prejudice.         The  defendant  was  convicted,  and  the  court  of  appeals  affirmed  his  

                                                                                                                                



conviction.  

                   



                     On petition to this court, the defendant argues not only that we should  

                                                                                                                           



reverse his conviction based on  the current law on  the admissibility  of eyewitness  

                                                                                                                    



identifications but also that Alaska's due process clause requires the adoption of a new  

                                                                                                                                



test.  He also argues that the superior court erred in failing to give his requested jury  

                                                                                                                               



instruction and in failing to grant him a mistrial.  

                                                               



                    We hold that the superior court erred under the law as it currently exists  

                                                                                                                             



when it held one of the eyewitness identifications sufficiently reliable to be admitted at  

                                                                                                                                   



trial, but that it did not err in admitting the other.  We also hold that the superior court  

                                                                                            



erred in refusing to give an eyewitness-specific jury instruction but did not err in denying  

                                                                                                                         



a mistrial.  Because the errors are harmless, we affirm the defendant's conviction.  

                                                                                                             



                    We also conclude, however, that the current test for the admissibility of  

                                                                                                                                  



eyewitness identification evidence does not adequately protect the right to due process  

                                                                                                                          



under the Alaska Constitution. We therefore identify factors that courts should consider  

                                                                                                                         



in future cases when deciding whether to admit eyewitness identification evidence.  

                                                                                                                  



                                                                -2-                                                          7110
  


----------------------- Page 3-----------------------

II.       FACTS AND PROCEEDINGS
  

                                  



          A.         The Crime And The Investigation  

                                                       



                    During the summer of 2008 a series of violent incidents took place in the  

                                                                                                                               



Fairbanks area between members of two gangs, the Bloods and the Crips.  In late July  

                                                                                                                             



there was a fight inside the Fairbanks Walmart; in early August there was another at the  

                                                                                                                               



Tanana Valley Fair.  Persons known or alleged to be current or former members of the  

                                                                                                                               



Bloods were later shot at outside the Eagles Hall by persons shouting Crips slogans.  

                                                                                                                    



                     The  incident  at  issue  here  occurred  on  August  15  at  approximately  

                                                                                                             



4:00 p.m.  A green Buick sedan carrying alleged members of the Bloods was traveling  

                                                                                                                      



down College Road in Fairbanks, followed by friends in another car.  Another vehicle  

                                                                                                                         



variously described as a gray, silver, or white SUV passed them going the other way,  

                                                                                                                            



made a U-turn, and pulled up alongside the Buick. Someone in the SUV started shooting  

                                                                                                                       



at the Buick and continued to do so while the vehicles raced along for what was later  

                                                                                                                             



estimated to be two miles.  

                                



                    No  one  was  injured  in  the  shooting,  but  the  Buick  was  significantly  

                                                                                                                



damaged.  Bullets also passed through two uninvolved vehicles, narrowly missing their  

                                                                                                                             



passengers. A bystander walking her bike reported hearing a bullet pass by her head; she  

                                                                                                                               



jumped into a ditch to take cover.  

                                           



                    Later that evening the police arrested Arron Young.  He had a gun in the  

                                                                                                                               



waistband of his pants and the key to a silver SUV in his pocket.  

                                                                                                    



                     The police interviewed witnesses from the scene and put out a request for  

                                                                                                                               



those with information to come forward.  Jason Gazewood, a criminal defense attorney  

                                                                                                                       



and former prosecutor, contacted the police department to report that he had witnessed  

                                                                                                                     



part of the gunplay. A police detective visited Gazewood's office and showed him a six- 

                                                                                                                              



                                                                -3-                                                        7110
  


----------------------- Page 4-----------------------

person photographic array; Gazewood picked Young as looking most like the man he  

                                                                                                                                



had seen behind the wheel of the SUV.  

                                                             



                    A grand jury convened in September 2008.   There Gazewood testified  

                                                                                                                       



about what he had seen.  Another witness, Arles Arauz, also identified Young as the  

                                                                                                                               



driver of the SUV.  Although Arauz had told the police immediately after the incident  

                                                                                                          



that he was unable to identify the assailants, at the grand jury hearing he picked Young's  

                                                                                                                       



picture out of a photographic array. But a third grand jury witness, John Anzalone, failed  

                                                                                                                           



to identify Young and picked another man instead.  

                                                                               



                    The grand jury indicted Young for attempted murder in the first degree and  

                                                                                                                              



misconduct involving weapons in the first degree.  

                                                                  



          B.        Young's Motion To Suppress Gazewood's Identification  

                                                                                          



                    Trial was eventually set for January 4, 2010. In late December 2009 Young  

                                                                                                                          



moved to suppress Gazewood's pretrial and in-court identifications, claiming that the  

                                                                                                                               



pretrial identification procedure had been unnecessarily suggestive.  

                                                                                                        



                    The superior court held an evidentiary hearing. Gazewood testified that the  

                                                                                                                               



police detective had come to his office about three days after the incident and showed  

                                                                                                                        



himasix-person photographicarray. Hetestified that heremembered "saying something  

                                                                                                                    



about . . . having a recollection of it being someone of Samoan descent . . . before the  

                                                                                                                               



lineup was brought out," though he could not recall whether he said this on the telephone  

                                                                                                                     



or  after  the  detective  arrived  at  his  office.                  The  detective  testified  that  he  did  not  

                                                                                                                              



remember whether Gazewood had identified the driver's race in the phone call.  

                                                                                                                   



                    The photographic array contained photographs of six black men but no  

                                                                                                                                



Samoans.  The detective testified that, because Gazewood was an attorney experienced  

                                                                                                                 



in criminal law, he did not give Gazewood any instructions before showing him the  

                                                                                                                               



array; he assumed Gazewood would understand the process and its purpose. Gazewood  

                                                                                                                    



                                                               -4-                                                         7110
  


----------------------- Page 5-----------------------

testified that although he was given no instructions, he assumed that the array contained  

                                                                                                                      



the suspect because he had been involved in many such procedures in the past.  He also  

                                                                                                                               



testified, however, that he did not feel he was required to select someone from among the  

                                                                                                                                



photos he was shown.  

                                    



                    Gazewood testified that he quickly narrowed his choice to two photos, one  

                                                                                                                               



of which was Young's.  Though conflicted, he was most focused on Young; he testified  

                                                                                                                         



that the way Young's hair was pulled back in the photograph made him "more like the  

                                                                                                                                



person I'd seen in the vehicle certainly."  He testified that he put his finger tentatively  

                                               



on Young's photograph, at which point the detective told him to "trust your instincts."  

                                                                                                                                      



Gazewood testified that the detective's remark terminated his deliberations, and he  

                                                                                                                                 



selected Young as the man who looked most like the one he had seen in the SUV. When  

                                                                                                                            



asked at the hearing whether he believed the detective was suggesting the desired result,  

                                                                                                                           



he answered:  

      



                    Yeah, I . . . think he saw me laboring over it and spending a  

                                                                                                               

                    little more time pointing to Mr. Young than the other two, or  

                                                                                                              

                    the other one by the time I had eliminated one of them.  And  

                                                                                                          

                    I took it as, you know, you're pointing to this guy more than  

                                                                                                          

                    the others, you know, that's the guy you should identify. . . .  

                                                                                                                  

                    I took it as that's the guy we want you to pick.  

                                                                                             



Gazewood testified that he was leaning toward Young anyway but that the detective's  



remark "ended this elimination process that I was kind of . . . undergoing. . . .  [I]t was  

                                                                                                                               



a process that was taking a little bit of time and . . . that certainly ended it." The detective  

                                                                                                                       



testified that he did not remember telling Gazewood to "trust your instincts" but that he  

                                                                                                                                 



knew Young was the suspect and knew Young's photograph was included in the array.  

                                                                                                                                      



                                                                -5-                                                         7110
  


----------------------- Page 6-----------------------

                          At the evidentiary hearing Gazewood also testified about what he saw of  



the crime.  He testified that while he was waiting at a stoplight on College Road, "the  

                                                                                                                                                              



thing that drew [his] attention" was that a "green car" coming from behind him drove  

                                                                                                                                                           



"into the oncoming lanes of traffic" to get around the cars waiting at the light.                                                                               He  

                                                                                                                                                               



testified that he then saw a white SUV coming up quickly behind him, and that he  

                                                                                                                                                                 



observed the driver of the SUV in his rearview mirror for "between three and eight  

                                                                                                                                                            



seconds" before the vehicle passed him on the left in pursuit of the green car.  He also  

                                                                                                                           



testified that he had seen Young's photo in the newspaper a week before the evidentiary  

                                                                                                                                                 



hearing, and the newspaper photo looked more like the person he recalled seeing at the  

                                                                                                                                                                



time of the shooting than did the photo he picked in the array.  

                                                                                                            



                          The superior court denied Young's motion to suppress. Employing the test  

                                                                                                                                                                



we have adopted from Manson v. Brathwaite, a decision of the United States Supreme  

                                                                                                                                                     

Court,1  

                                                                                                                                                               

                the  superior  court  first  found  that  the  photographic  array  itself  was  not  



                                                                                                                                                                

unnecessarily suggestive because there was "nothing in the photo array to distinguish the  



                                                                                                                                                           

defendant's photo from the others."  The court found that the detective made the "trust  



                                                                                                                                              

your instincts" comment but that it was not suggestive and did not influence Gazewood's  



                                                                                                                                           

choice.   Finally, the court determined that even if the procedure was unnecessarily  



                                                                                                                                                                  

suggestive, Gazewood's identification of Young was still reliable under the totality of  



                                                                                     

the circumstances and therefore admissible.  



             1           Holden v. State                , 602 P.2d 452, 456 (Alaska 1979) (quoting                                              Manson v.   



Brathwaite, 432 U.S. 98, 114 (1977)).                                       As we explain below, the                          Brathwaite  test first  

determines whether the identification procedure was unnecessarily suggestive; if it was,                                                                     

then the court must evaluate several factors to assess whether the identification was                                                                         

nonetheless reliable.   



                                                                                -6-                                                                         7110
  


----------------------- Page 7-----------------------

          C.        Trial  



                    1.        Pretrial disclosure of Anzalone's identification of Young  

                                                                                                               



                    On the first day of trial Young informed the court that the State had just  

                                                                                                                              



disclosed a police report stating that John Anzalone, who had failed to select Young from  

                                                                                                                             



the photographic array when testifying before the grand jury, would now identify Young  

                                                                                                                          



as one of the shooters.  Anzalone had informed the prosecutor that he had seen Young's  

                                                                                                                       



picture on television in connection with the case about a week before trial and was  

                                                                                                                             



prepared to identify him in court.  

                                                    



                    Young objected to Anzalone's testimony.   He claimed that the pretrial  

                                                                                                                        



publicity had tainted Anzalone's identification and it was therefore unreliable.   He  

                                                                                                                               



argued that any in-court identification by Anzalone would be improperly suggestive  

                                                                                                                   



because Young would be the only African-American man sitting at the defense table and  

                                                                                                                               



this suggestiveness could not be overcome because Anzalone's identification of Young  

                                                                                                                         



otherwise lacked sufficient indicia of reliability.  The superior court ruled that while  

                                                                                                                           



Anzalone could not testify that he had first recognized Young on television (unless the  

                                                                                                                               



defense  raised  the  issue  on  cross-examination),  he  could  identify  Young  in  the  

                                                                                                                              



courtroom.  The court determined that Anzalone's failure to pick Young from the initial  

                                                                                                                           



photo array did not affect his ability to identify Young at trial, and that any problems  

                                                                                                                      



with the in-court identification were properly addressed through cross-examination.  

                                                                                                                                 



                    2.        The State's case at trial  

                                                              



                    The State presented testimony from occupants of the Buick sedan and the  

                                                                                                                               



following vehicle, only one of whom, Arauz, could identify a shooter.  Some witnesses  

                                                                                                                     



were unable to say how many people were in the assailants' SUV, while others testified  

                                                                                                                        



                                                               -7-                                                         7110
  


----------------------- Page 8-----------------------

it had two to four occupants. One witness testified that the assailants had bandanas over                                                                                               



                        2  

their faces.                 



                                                       

                              The driver of the Buick, Joseph Fainuu, testified that although he did not  



                                                                                                                                                                                         

see who was shooting at them, the shots were coming from a gray SUV. He testified that  



                                                                                                                                                                                            

the SUV was the one identified by the State. He further testified that he knew Young by  



                                                                                                                                                                                     

the nickname "Big Nasty" and that he had seen Big Nasty driving the SUV at times  



                                                                                                                                                                                    

before the shooting.  Another of the Buick's occupants testified that he had heard others  



                                                                                                                                                                                         

refer to the gray SUV as "Big Nasty's car" at the time of the Eagles Hall shooting, and  



                                                                                                                                                                             

that, though he could not identify Young as a participant in the College Road shooting,  



                                                                                                                                                          

the SUV the State alleged to belong to the shooters appeared to him to be Big Nasty's  



                                                                                                                                                                                            

car.  And another witness who had been riding in the second vehicle testified that he  



                                                                                                                                                                                           

heard someone in his car identify the silver SUV as "Big Nasty's truck" right before the  



                                       

shooting started.  



                                                                                                                                   

                              The State's ballistics evidence indicated that shell casings retrieved from  



                                                                                                                                                                             

the  scene  of  the  shooting  were  probably  ejected  from  the  gun  found  in  Young's  



                                                                                                                                                                                            

waistband at the time of his arrest.   The State also established that the key found in  



                                                                                                                                                      

Young's pocket fit the silver SUV identified as the one used in the shootings.  



                                                                                                                                                                                                   

                              The  State  presented  three  eyewitnesses  to  place  Young  at  the  scene.  



                                                                                                                                                                                  

Consistent with his testimony at the evidentiary hearing, Gazewood testified that Young  



                                                                                                                                                                           

looked  like the man he saw drive past him in  the SUV.                                                                                 His testimony,  however,  



                                                                                                                                                                                         

reflected some uncertainty.  He did not say Young was definitely the driver, only that  



               2              The State also presented testimony about the property damage and near-                                                                        



misses from bullets fired from the SUV, testimony detailing the investigation and other                                                                                               

gang-related incidents in Fairbanks, and testimony of a gang expert linking Young to                                                                                                         

gang membership.   



                                                                                             -8-                                                                                      7110
  


----------------------- Page 9-----------------------

upon seeing Young's photo in the array he "thought that . . . that looked a lot like the  

                                                                                                                                



person there and then seeing [Young's] photograph in the paper made me think that that  

                                                                                                                               



looked a lot like the person I'd seen."  

                                                            



                    The second eyewitness, Anzalone, testified that he was starting a left turn  

                                                                                                                               



at a traffic light on College Road when he heard "several popping noises" coming from  

                                                                                                                              



his left.  He testified that he saw two vehicles coming directly toward him and "what  

                                                                                                                            



looked like somebody firing a pistol out of [the] driver's side window" of one of them,  

                                                                                                                            



an  SUV.         He  testified  that  he  reversed  back  through  the  intersection  to  avoid  the  

                                                                                                                               



oncoming vehicles and, while doing so, observed Young at the wheel of the SUV,  

                                                                                                                            



though  he  did  not  make  note  of  any  passengers.                             Anzalone  identified  the  driver  

                                                                                                                           



definitively in court as the man "sitting at the defense table," but he also acknowledged  

                                                                                                               



his earlier failure at the grand jury to pick Young out of a photo array.  

                                                                                                   



                    The third eyewitness, Arles Arauz, was an admitted former member of the  

                                                                                                                                



Bloods.  Arauz had known Young since high school, when Young "beat [him] up" in a  

                                                                                                                                   



fight over a romantic interest.  Arauz testified that at the time of the shooting he was  

                                                                                                                               



riding in the vehicle following the Buick sedan.  He testified that the Buick started a U- 

                                                                                                                                 



turn, at which point a gray SUV "pull[ed] up and - from the back behind and then  

                                                                                                                              



start[ed] shooting at it."  He testified that he saw Young driving the gray SUV as it  

                                                                                                                                  



passed him in pursuit of the Buick.  

                                                       



                    Young sought toimpeach Arauzon groundsthat,although hehadidentified  

                                                                                                                       



Young at the grand jury, he had told investigating detectives right after the crime that he  

                                                                                                                                 



could not identify any of the shooters. But Arauz insisted he had identified Young to the  

                                                                                                                                



police on the night of the shooting; this caused some confusion at trial.  In the absence  

                                                                                                                         



of the jury, Arauz testified that the night of the shooting, after he had denied knowing  

                                                                                                                       



any of the shooters, he met with one of the investigating detectives in an off-the-record  

                                                                                                               



                                                                -9-                                                         7110
  


----------------------- Page 10-----------------------

interview and identified Young.  The superior court recessed for the day to allow the  

                                                                                                                                



prosecution to investigate the matter.  

                                                           



                     3.	       Young's motion for mistrial based on Arauz's newly revealed  

                                                                                                                       

                               statements to an investigator  

                                                           



                     The next morning the State filed with the court a supplemental report of an  

                                                                                                                                 



investigating detective, Detective Elzey, which described how he had indeed met with  

                                                                                                            



Arauz a second time on the night of the shooting, after Arauz's initial failure to identify  

                                                                                                                         



any of the shooters.  The report explained that an unidentified man had called the police  

                                                                                                                            



station  that  night,  stating  that  a  friend  knew  about  the  shooting but  would  talk  to  

                                                                                                                                 



investigators only if what he told them was not written down or recorded.  Elzey agreed  

                                                                                                                           



to these terms, and Arauz appeared at the police station and identified Young as the  

                                                                                                                                



shooter.  Called to the stand for voir dire, Elzey testified that he did not disclose this  

                                                                                                                               



conversation to the prosecutor because he had promised not to.  Instead, he decided to  

                                                                  



wait to see how Arauz testified at the grand jury; if Arauz again identified Young, the  

                                                                     



detective would consider the matter resolved, and if he did not identify Young the  

                                                                                                                                



detective would inform the prosecutor of the inconsistency.   When Arauz positively  

                                                                                                                     



identified Young at the grand jury, Elzey decided that no disclosure was necessary.  

                                                                                                                                  



                     Young moved for a mistrial.  He argued that the State's failure to disclose  

                                                                                                                         



Arauz's same-day identification of Young violated Rule 16 of the Alaska Rules of  

                                                                                                                                 



Criminal Procedure and prejudiced his defense, which rested in part on showing that  

                                                                                                                               



Arauz decided to falsely identify Young at the grand jury only after learning that Young  

                                                                                                                          



was already a suspect. Young argued that Arauz's earlier identification, before he knew  

                                                                                                                             



that Young was a suspect, damaged his ability to impeach Arauz, and that had he known  

                                                                                                                           



before  trial  of  the  same-day  identification  he  might  have  pursued  a  defense  of  

                                                                                                                                 



justification instead of denying his involvement.  

                                                                            



                                                               -10-	                                                        7110
  


----------------------- Page 11-----------------------

                                                The superior court denied the motion.                                                                                                   It found that there was no violation                                                          



of Rule 16 because the rule requires only disclosure of written or recorded witness                                                                                                                                                                                                       



statements, and Arauz's statement to Detective Elzey was neither written nor recorded;                                                                                                                                                                                              



it   also  found   that   disclosure   of   Arauz's   grand   jury   identification   satisfied   the  



requirements of the rule. The court further found that, even if there had been a violation                                                                                                                                                                                          



of Rule 16, Young was not prejudiced because he knew from the grand jury testimony                                                                                                                                                                                                 



that Arauz would identify Young as the shooter.                                                                                                                                But the court offered to continue trial                                                                                  



                                                                                                                                                                                                          3  

for a day to allow Young to further investigate the matter,                                                                                                                                                                                                                                                 

                                                                                                                                                                                                               and it allowed the defense the  



                                                                                                                                                                                                                                                                                                                  

option of excluding evidence that would corroborate Arauz's claim that he had made a  



                                                                                          

same-day identification.  



                                                                                                          

                                                4.                      Young's defense  



                                                                                                                                                                                                                                                                                       

                                                Young presented his alibi defense.  His sister Angie testified that although  



                                                                                                                                                                                                                                                                                                              

she and Young were estranged and had not seen each other much in the years leading up  



                                                                                                                                                                                                                                                                                                                  

to the shooting, she was with him that afternoon at his apartment.  She testified that a  



                                                                                                                                                                                                                                                                                                                          

person she knew as "Little O" came over during the afternoon and gave Young a gun.  



                                                                                                                                                                                                                                                                                                               

Young also presented evidence disputing his possession or ownership of the SUV, as  



                                                                                                                                                                                                                                                                                                  

well as evidence relating to the earlier gang disputes that implicated a different Crips  



                                                                                                                                                           

faction than the one to which he belonged.  



                        3                       The superior court said it was giving the defense "four days of investigation                                                                                                                                            



in response to the request for continuance," but the four days included a three-day                                                                                                                                                                                                

holiday weekend, and Young's attorneys informed the court that their investigator might                                                                                                                                                                                                           

not be available on those days.                                                                                 



                                                                                                                                                    -11-                                                                                                                                             7110
  


----------------------- Page 12-----------------------

                              5.             Young's requested jury instructions                       



                              After   the   close   of   evidence,   Young   asked   the   court   to   give   a   jury  



instruction, based on case law from the Alaska Court of Appeals and other jurisdictions,                                                                            



thatidentifiedfactorsaffectingthereliability                                                    ofeyewitnessidentifications. Alternatively,                        



Young asked the court to give the jury instruction approved by a federal appeals court                                                                                                



                                                              4  

in  United States v. Telfaire                                .                                                                                                                      

                                                                   The superior court declined to give either one.  It found  



                                                                                                                                                                                     

Young's customized instruction "more argument than it [was] a proposition of law,"  



                                                                                                                                                                                    

rejected the Telfaire instruction on the same grounds, and decided that the issues raised  



                                                                                                                                                                                       

by  the  eyewitness  identifications  were  fully  addressed  by  the  existing  pattern  jury  



                                                                                                                                                                                            

instructions regarding the credibility of witnesses generally and the State's burden of  



                

proof.  



                                                                                                        

                              The jury convicted Young on all counts.  



                                                                                                                                                         

               D.             Appeal To The Court Of Appeals And Petition For Hearing  



                                                                                                                                                    5  

                                                                                                                                                                                         

                              Young appealed his conviction to the court of appeals.                                                                   He argued first that  



                                                                                                                                                                                          

the superior court erred when it failed to suppress Gazewood's identification under the  



                                                                                                6  

                                                                                                                                                                                          

standard set out in Manson v. Brathwaite .                                                            The court of appeals disagreed with the  



                                                                                                                                                        

superior  court  in  part,  holding  that  the  identification  procedure  had  indeed  been  



                                                          7  

                                                                                                                                                                                            

unnecessarily  suggestive.                                       But  the  court  of  appeals  ultimately  found  no  error  in  



               4              469 F.2d 552 (D.C. Cir. 1972).                         



               5              Young v. State                  , 331 P.3d 1276 (Alaska App. 2014).                                 



               6              Id.  at 1278-80.   



               7              Id. at 1279-80 (discussing                                 Tegoseak v. State                       , 221 P.3d 345 (Alaska App.  



2009)).  



                                                                                            -12-                                                                                      7110
  


----------------------- Page 13-----------------------

admitting Gazewood's identification, concluding that it was nonetheless reliable under                                                                     

the totality of the circumstances.                            8  



                                                                                                                                                    

                         Young also argued that the superior court erred when it allowed Anzalone  



                                                                    9  

                                                                                                                                                        

to make his in-court identification.                                     The court of appeals noted the superior court's  



                                                                                                                                                                   

reasoning:   (1) "that it was not impermissible for a witness who failed to identify a  



                                                                                                                                                           

defendant in a lineup to make an in-court identification later"; (2) "that Young could  



                                                                                                                                                

cross-examine Anzalone and bring out the factors that might cast doubt on Anzalone's  



                                                                                                                                                                

identification"; and (3) that although Young was the only African-American man at the  



                                                                                                                                                                

defense table, "in a criminal trial, the defendant is almost always the only person at the  



                                                                        10  

                                                                                                                                                             

defense table aside from his attorney."                                     On this rationale, the court of appeals held "that  



                                                                  

the [superior] court did not abuse its discretion by permitting Anzalone to make an in- 



                                        11  

            

court identification." 



                                                                                                                                                                

                         Young also challenged the superior court's failure to give either of his  



                                                                                                     12  

                                                                                                                                                          

requested jury instructions on eyewitness testimony.                                                       As the court of appeals noted,  



                                                                                                                                                               

Young acknowledged "that this court has previously affirmed convictions where thetrial  



                                                                                                                                                 

court gave the pattern instruction instead of a more focused instruction on eyewitness  



                             13  

identification";                                                                                                                                

                                the court of appeals "adhere[d] to those prior decisions and conclude[d]  



             8           Id . at 1279-81.
     



             9           Id. at 1281.
  

                                     



             10          Id.
  



             11          Id.
   



             12          Id.
  



             13          Id.
  



                                                                               -13-                                                                         7110
  


----------------------- Page 14-----------------------

that the trial court did not abuse its discretion in giving the pattern jury instruction in this                                                      

case."14  



                                                                                                                                                   

                        Finally, Young argued that the superior court erred when it refused to grant  



                                                                                                                                                        

a mistrial based on the State's failure to disclose Arauz's same-day identification of  



                                                       15  

                                                                                                                                                   

Young as one of the assailants.                             The court of appeals held that the superior court erred  



                                                                                                                                                              

in deciding that the failure was not a discovery violation, because the prosecution's  



                                                                                                                                                         

conduct "violated both the text and the spirit of Criminal Rule 16, which is designed to  



                                                                                 16  

                                                                                                                                              

prevent precisely this type of unfair surprise."                                     It concluded, however, that the superior  



                                                                                                                                                  

court had not erred in refusing to grant a mistrial, because Young had failed to show  



                  17  

prejudice.                                                                                                                                           

                      The court of appeals observed that "the major prejudice Young alleged" was  



                                                                                                                                                    

that he might have abandoned his alibi defense for a defense of justification; it also  



                                                                                                                                    

observed,   however,   that   a   justification   defense   would   have   been   "completely  



                                                                                                                                       18  

                                                                                                                                             

inconsistent"  with  either  Young's  alibi  defense  or  the  State's  evidence.                                                            Further,  



                                                                                                                                                        

"Young did not make an offer of proof or ask to present information to the court in  



                                                                                                                   19  

                                                                                                                                               

camera to establish that he had evidence to support the defense."                                                      The court of appeals  



                                                                                                                             20  

                                                                                                                                  

accordingly found no error in the superior court's denial of a mistrial. 



            14          Id.  



            15          Id.  at 1281-82.   



            16          Id. at 1282-83.  

                                   



            17  

                                   

                        Id. at 1283.  



            18          Id.  



            19          Id.  



            20          Id.  

                               



                                                                          -14-                                                                     7110
  


----------------------- Page 15-----------------------

                            Young filed a petition for hearing with this court.                                                       He urged us to abandon           



our   reliance on                   Manson   v.   Brathwaite,   "adopt a different test for                                                        the admission of                



eyewitness   identification   evidence   under   the   Alaska   Constitution,"   and   reverse   his  



conviction.   He argued that even in the absence of a new test, Alaska law required that                                                                                         



the Gazewood and Anzalone identifications be excluded.                                                                     He also argued that the court                      



of   appeals   erred   by  affirming   the   superior   court's   refusal   to   give   his   requested  



instructions and to grant a mistrial.                                       We granted Young's petition.                   



III.          STANDARD OF REVIEW                       



                            "The   proper   extent   of   appellate   review   for   an   unpreserved   claim   of  



                                                                                                                                                 21  

constitutional error is a question of law that we review de novo."                                                                                                               

                                                                                                                                                       "We apply our  



                                                                                                                                                                              

independent judgment to any questions of law, adopting the rule of law that is most  



                                                                                                                22  

                                                                                                

persuasive in light of precedent, reason, and policy."                                                               



                                                                                                                                                                             

                            The  determination  whether  an  identification  has  been  derived  from  



                                                                                                                                                                

unnecessarily suggestive identification procedures and, if so, whether it is nonetheless  



                                                                                                

sufficiently reliable to be admitted at trial in conformance with due process is a mixed  



                                                   23  

                                                                                                                                                                          

question of law and fact.                               On mixed questions we "review[] the superior court's factual  



                                                                                                                  24  

                                                                                                     

findings for clear error, and the legal issues de novo." 



              21            Johnson v. State                   , 328 P.3d 77, 81 (Alaska 2014).                        



              22            Brooks v. Horner                      , 344 P.3d 294, 297 (Alaska 2015) (quoting                                                      Holmes v.   



                                                                        

 Wolf, 243 P.3d 584, 588 (Alaska 2010)).  



              23            See Cooper v. Bergeron, 778 F.3d 294, 300 (1st Cir. 2015) (citing Sumner  

                                                                                                                                                                        

v. Mata, 455 U.S. 591, 597 (1982)).  

                                                            



              24            Brown v. Knowles, 307 P.3d 915, 923 (Alaska 2013) (alteration in original)  

                                                                                                                                                                       

(quoting Dashiell R. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,  

                                                                                                                                                                           

222 P.3d 841, 849 (Alaska 2009)).  

                                                           



                                                                                        -15-                                                                                 7110
  


----------------------- Page 16-----------------------

                        "As long as the jury is properly instructed on the law, . . . the trial [judge]                                        



has broad discretion to determine whether to give instructions specially tailored to the                                                               



                           25  

case at hand."                                                                                                                                     

                                "Issues involving the adequacy of jury instructions generally raise  



                                                                                              26  

                                                                                

questions of law and are subject to de novo review." 



                                                                                                                                              

                        "[T]he trial court is vested with 'wide discretion' in determining whether  



                                                                                                                                                        

a mistrial should  be granted  and  its decision  will be disturbed only if an  abuse of  



                                      27  

                        

discretion is shown." 



IV.         DISCUSSION  



                                                                 

                        In its 2009 opinion in Tegoseak v. State, the court of appeals highlighted  



                                                                                                                                                      

a number of weaknesses in the way courts, including Alaska's, have evaluated the  



                                                                                                                                            

reliability of eyewitness testimony in the decades since the United States Supreme  



                                                                                            28  

                                                                        

Court's formative opinion in Manson v. Brathwaite .                                                                                                    

                                                                                                Young contends that it is time for  



                                                                                                                                        

this court to take a similarly close look at the scientific evidence related to eyewitness  



                                                                                                                                                      

identifications and to change the standards for determining their admissibility and the  



                                                                                                                                                

instructions that inform juries about how to assess their weight.  As explained below,  



                                                                                                                                                 

whilewe conclude that a change in the way we evaluate eyewitness identifications would  



                                                                                                                                                     

not change the result in Young's case, we agree that a Brathwaite-based test fails to take  



                                                                                                                                                       

into  account  the  myriad  factors  now  generally  known  to  affect  the  reliability  of  



            25          Power Constructors, Inc. v. Taylor & Hintze                                        , 960 P.2d 20, 29 (Alaska           



 1998);  see also           Alaska R. Crim. P. 30.              



            26          Power Constructors, Inc., 960 P.2d at 29 (citing Sever v. Alaska Pulp  

                                                                                                                                                   

Corp., 931 P.2d 354, 361 n.11 (Alaska 1996)).  

                                                                        



            27          Amidon v. State , 565 P.2d 1248, 1261 (Alaska 1977).  

                                                                                                             



            28          Tegoseak v. State, 221 P.3d 345, 350-63 (Alaska App. 2009) (discussing  

                                                                  

at length Manson v. Brathwaite, 432 U.S. 98 (1977)).  

                                                                                  



                                                                          -16-                                                                     7110
  


----------------------- Page 17-----------------------

eyewitness evidence, and that such a test can no longer be viewed as consistent with  

                                                                                                                             



Alaska's constitutional guarantee of due process.  

                                                                             



          A.	       Young's Challenges To The Eyewitness Identifications Admitted At  

                                                                                                                                

                    Trial Do Not Require Reversal Of His Conviction.  

                                                                                   



                    Young  argues that it was error  to  admit  the Gazewood and  Anzalone  

                                                                                                                     



identifications  at  trial.  He  first  contends  that  because  the  test  we  use  to  evaluate  

                                                                                                                  



eyewitness identifications is insufficiently protective of due process, we should adopt in  

                                                                                                                                 



its place a new test based in part on due process protections and in part on the Alaska  

                                                                                                                         



Rules of Evidence.   He also contends that it was error to admit the Gazewood and  

                                                                                                                              



Anzalone identifications even under current law.  

                                                                     



                    Young did not explicitly propose a new test for eyewitness identification  

                                                                            



evidence to the superior court or the court of appeals. Having arguably failed to preserve  

                                                                                                                       



the issue, he urges us to adopt a "futility exception" to the preservation rule.  We see no  

                                                                                                                                



need  to  do  so  here.             First,  we  conclude  that  it  was  error  to  admit  Gazewood's  

                                                                                                                



identification of Young at trial even under the existing Brathwaite test, as we discuss  

                                                                                                                         



below, though we also conclude that the error was harmless.  Second, we conclude that  

                                                                                                                              



it was not error to admit Anzalone's in-court identification and that our conclusion would  

                                                                                                                           



not be different under a new, more protective test. Thus, the application of a new test for  

                                                                                                                                



the admissibility of eyewitness identifications would not change the result in Young's  

                                                                                                                       



case.  



                    As noted above, however,wearenonethelessconvincedthat the Brathwaite  

                                                                                                                   



test does not adequately screen out unreliable eyewitness identifications at trial and  

                                                                                                                              



therefore does not adequately protect defendants' due process rights under the Alaska  

                                                                                                                         



Constitution.   We outline today the factors relevant to the admission of eyewitness  

                                                                                                                  



identification testimony that courts should consider in future cases.  

                                                                                                        



                                                              -17-	                                                        7110
  


----------------------- Page 18-----------------------

                           1.	          Under the              Brathwaite   test it was error to allow Gazewood to                                                      

                                        identify Young as the driver - but that error was harmless.                                                 



                          Nearly 50 years ago the UnitedStates Supreme Court decided that a pretrial                                                          



identification   procedure   could   be   "so   unnecessarily   suggestive   and   conducive   to  



irreparable mistaken identification that [a defendant] was denied due process of law"                                                                              



                                                                                                                                         29  

when the witness later testified at trial about the pretrial identification                                                                                            

                                                                                                                                             or identified the  



                                                                        30  

                                                                                                                                                                    

defendant in court as the perpetrator.                                       We embraced these principles as consistent with  



                                                                                                   31  

                                                                          

the due process clause of the Alaska Constitution. 



                                                                                                                                                  

                           In Manson v. Brathwaite, theSupremeCourtclarified that an unnecessarily  



                                                                                                                                                                       

suggestive pretrial identification procedure does not require automatic exclusion of the  



             29            Stovall  v.  Denno,  388  U.S.  293,  295,  302  (1967).  



             30            See  Simmons  v.   United  States,  390  U.S.  377,  382-84  (1968).  



             31            See  Buchanan  v.  State,  561  P.2d  1197,  1204-05  (Alaska  1977)  (discussing  



Stovall,  388  U.S.  at  302  and  Simmons,  390  U.S.  at  382-84);  Klockenbrink  v.  State,  472  

P          

                                                                                                                                                                     

   .2d 958, 961-62 (Alaska 1970) (discussing Stovall, 388 U.S. 293).  Although our past  

                                                                                                                                                                    

cases have focused on the particular elements relevant to each case's facts rather than  

explaining the test comprehensively,                                      see, e.g.       ,  Viveros v. State             , 606 P.2d 790, 792 & n.1                    

                                                                                                                                                                     

(Alaska 1980) (evaluating photographic lineup for suggestiveness and reliability and  

                                      

declining to adopt rule of per se exclusion because it "runs counter to the clear weight  

                                                                                                                                                               

of authority in Alaska and the federal system"); Holden v. State, 602 P.2d 452, 455-57  

                                                                                                                                                         

(Alaska 1979) (examining identification derived from showup procedure for reliability  

                                                                                                                                                    

according to Brathwaite, 432 U.S. at 114, without explicitly addressing unnecessary  

                                                                                                                                                               

suggestiveness), the Brathwaite test has been accepted as consistent with the Alaska  

                                                                                                                                                                

Constitution.  See also Anderson v. State, 123 P.3d 1110, 1116 (Alaska App. 2005)  

                                                                                                                                                                      

("[O]ur supreme court has never expressly rejected federal law on this subject (the law  

                                                                                                                                                            

declared in Stovall and Brathwaite) in favor of a different rule adopted under our state  

                                                                                                                                                                 

constitution.  Rather, the test in Alaska is the same one announced by the United States  

                                      

Supreme Court . . . .").  



                                                                                  -18-	                                                                           7110
  


----------------------- Page 19-----------------------

                                                                          32  

identification   on   due   process   grounds.                                   Rather,   "reliability   is   the   linchpin  in  



                                                                                                        33  

determining the admissibility of identification testimony."                                                                              

                                                                                                            In determining reliability,  



                                                                                                

"[t]he factors to be considered are set out in [Neil v.] Biggers" (the "Biggers factors"),  



                                                                                                                                                     

which "include the opportunity of the witness to view the criminal at the time of the  



                                                                                                                                                     

crime, the witness' degree of attention, the accuracy of his prior description of the  



                                                                                                                                            

criminal, the level of certainty demonstrated at the confrontation, and the time between  



                                                          34  

                                                                                                                                         

the crime and the confrontation."                             "Against these factors is to be weighed the corrupting  



                                                                                                                                                     

effect of the suggestive identification itself," evaluated in light of the totality of the  



                          35  

circumstances.                 



                                                                                                                                          

                        In  this  case,  the  superior  court  found  that  the  procedure  used  for  



                                                                                                                                                  

Gazewood's initial identification of Young (including the detective's comment to "trust  



                                                                                                                          

your  instincts"  as  Gazewood  lingered  over  Young's  photo)  was  not  unnecessarily  



                                                                                                                                            

suggestive.  It also found that the identification was sufficiently reliable to be admitted  



                                                                                                                                                     

even if the procedure had been unnecessarily suggestive.  The court of appeals held that  



                                                                                                                                  

the  superior  court  erred  in  determining  that  the  procedure  was  not  unnecessarily  



                                                                                                                                                      

suggestive  but  that  the  identification  was  nonetheless  sufficiently  reliable  to  be  



                 36  

admitted.                                                                                                                                              

                      We agree with the court of appeals' first conclusion but disagree with its  



                                                                                                                                        

second.   We hold that in addition to being the product of an improperly suggestive  



                                                                                                                                                             

procedure,  Gazewood's  identification  was  not  sufficiently  reliable  to  be  admitted.  



            32          432 U.S. 98, 106-07, 114 (1977).               



            33  

                                   

                        Id. at 114.  



            34  

                                                                                                                  

                        Id. (citing Neil v. Biggers, 409 U.S. 188, 199-200 (1972)).  



            35          Id.  



            36          Young v. State            , 331 P.3d 1276, 1278-81 (Alaska App. 2014).                            



                                                                          -19-                                                                    7110
  


----------------------- Page 20-----------------------

Accordingly, we hold that it was error to allow Gazewood to identify Young at trial as                                                                                                                                                      



the driver.   



                                                        a.	                The    procedure    through    which    Gazewood    identified  

                                                                           Young as the driver was unnecessarily suggestive.                                                                   



                                     According to the State, the court of appeals erred in deciding that the                                                                                                                             



procedure for Gazewood's pretrial identification was unnecessarily suggestive, because                                                                                                                                      



Gazewood had already chosen Young as the driver before the detective said to "trust                                                                                                                                               

your instincts."                             But the court of appeals rejected this argument,                                                                                      37  

                                                                                                                                                                                                                                             

                                                                                                                                                                                         and it was correct to  



                                                                                                                                                                                                                               

do so.  While Gazewood testified that he "was kind of going there" in selecting Young  



                                                                                                                                                                           

as the shooter and may well have picked Young anyway, he also testified that he took  



                                                                                                                                                                                                                               

the detective's comment to mean "that's the guy we want you to pick" and that it ended  



                                                                                                                                                                                                                                

his deliberations.  He testified that what "stopped the process of me, . . . you know,  



                                                                                                                                                                                                                                

looking at the photo identification was [the detective's] going trust your instinct. I mean,  



                                                                                                                                                                                                

that ended this elimination process I was kind of . . . undergoing. . . .  [T]hat certainly  



                                                                                                                                                                                                                                       

ended it."  He agreed that the detective's comment was "pretty suggestive, yeah."  We  



                                                                                                                                                                                                                                   

conclude that the court of appeals was correct to hold that the detective's comment made  



                                                                                                                                                                                                                   

Gazewood's identification procedure "so suggestive as to create 'a very substantial  



                                                                                                                              38  

                                                                                                                           

likelihood of irreparable misidentification.' " 



                   37                See id.            at 1279-80 ("Although the superior court found that Gazewood had                                                                                                                



already decided to select Young before [the detective] told him, 'Go with your instincts,'                                                                                                                             

the record does not support that finding.").                                               



                   38                Noble v. State, 552 P.2d 142, 146 (Alaska 1976) (quoting Simmons v.  

                                                                                                                                                                                                                                            

 United States, 390 U.S. 377, 384 (1968)).  

                                                                                              



                                                                                                                    -20-	                                                                                                           7110
  


----------------------- Page 21-----------------------

                                          b.	          It was error to hold that Gazewood's identification of                                                                 

                                                       Young was reliable despite the unnecessarily suggestive                                              

                                                       identification procedure.   



                            Though concluding that the identification procedure was unnecessarily                                                     



 suggestive, the court of appeals affirmed the admissibility of Gazewood's identification                                                              



testimony because it                      determined that hisidentification                                  ofYoung             was nonetheless reliable   



                                                      39  

under the            Brathwaite  test.                                                                             

                                                           We conclude that this was error.  



                                                                                                                                                                               

                            The court of appeals summarized the superior court's findings relating to  



                                                                                                                                                                          

the five Biggers factors, noted that "eyewitness testimony is often critical and is the kind  



                                                                                                                                                                           

 of testimony that juries have traditionally been able to evaluate," and determined that  



                                                                                                                                                                            

 "because of Gazewood's extensive prior  experience with  lineup  procedure and  his  



                                                                                                                                                          

 criticism of the procedure used in this case, his testimony was effective in establishing  



                                                                                                                                                                           

the  problems  with  the  photo  lineup  and  the  influence  this  procedure  had  on  his  

 identification."40  



                                                                                                                                                              

                            We agree that Gazewood's testimony - due to both his own expressed  



                                                                                                                                                                            

 qualms about the identification process and an adept cross-examination - alerted the  



                                                                                                                                                                              

jury to a number of factors relevant to assessing the reliability of his identification of  



                41  

Young.                                                                                                                                                                    

                         But  under  Brathwaite  the  testimony  was  not  admissible  unless  the  



              39            Young,  331  P.3d  at   1280-81.   



              40            Id .  



              41            For  example,  in  his  testimony  Gazewood  volunteered  the  limitations  on  his  



 ability  to  view  the  perpetrator  at  the  scene  ("I  had,  you  know,  about  three  seconds  to  look  

 at  someone  in  a  rearview  mirror."),  his  first  impression  that  the  driver  was  Samoan,  his  

 frustration   with   the   detective's   suggestive   comment during   the   photo   array,   and   his  

ultimate  uncertainty  ("I  never  said  it's  number  four,  I'm  certain.  .  .  .   I  think  the  .  .  .  term  

 I used is number four  looks most like the guy.").   The cross-examination emphasized  

                                                                                                                                                       (continued...)  



                                                                                     -21-	                                                                              7110
  


----------------------- Page 22-----------------------

identification was reliable, and, following an unnecessarily suggestive identification                                                                               



procedure, a finding of reliability depends on an evaluation of the five                                                                                       Biggers  factors:   



"the opportunity of the witness to view the criminal at the time of the crime, the witness'                                                                                      



degree of attention, the accuracy of his prior description of the criminal, the level of                                                                                                       



certainty demonstrated at the confrontation, and the time between the crime and the                                                                                                          



                                   42  

confrontation."                                                                                                                                                                     

                                        We disagree that such an analysis supports the superior court's finding  



                                                           

of reliability in this case.  



                                                                                                                                                                                               

                               Supporting the reliability of Gazewood's identification is "the length of  



                                                                                                              43  

                                                                                                                                                                                     

time between the crime and the confrontation."                                                                        The three days that passed before  



                                                                                                                                                                                      

Gazewood saw the photo array is longer than the time involved in other cases in which  



               41(...continued)  



                                                                                                                                                                                      

Gazewood's limited opportunity to view the perpetrator, the distractions of the traffic  

                                                                                                                                                                                 

light and other vehicles, Gazewood's starting assumption that the photo array included  

                                                                                                                                                                                             

the person suspected by the police, notable differences among the photos used in the  

                                                                                                                                                                                            

array, and the possibility that Gazewood's memory was influenced by the times he saw  

                                                               

Young afterwards in court.  



               42             Manson v. Brathwaite, 432 U.S. 98, 114 (citing Neil v. Biggers, 409 U.S.  

                                                                                                                                                                                          

 188, 199-200 (1972)).  

                                



               43             Biggers, 409 U.S. at 199-200.  

                                                                              



                                                                                             -22-                                                                                        7110
  


----------------------- Page 23-----------------------

                                                                                                                                                                      44  

we addressed the reliability of eyewitness identifications,                                                                                                                 but not so long as to weigh                                  

against a finding of reliability given the circumstances of this case.                                                                                                                            45  



                                                                                                                                                                                                                                               

                                       More weakly  supporting  reliability is the superior  court's finding that  



                                                                                                                                                                             46  

                                                                                                                                                                                                                                

Gazewood "had a sufficient degree ofattention to the events"                                                                                                                      because the fast approach  



                                                                                                                                                                                                                                      

of the vehicles in his rearview mirror put him on the alert.   But Gazewood readily  



                                                                                                                                                                                                                                                  

acknowledged the simultaneous distractions of the other cars stopped at the light, the  



                                                                                                                                                               

changing signal, and having to watch for cross-traffic.  



                                                                                                                                                                                                                                                              

                                       The remaining three Biggers factors weigh against a finding of reliability.  



                                                                                                                                                                                                                                                              

Considering Gazewood's "level of certainty," the superior court found that his "conduct  



                                                                                                                                                                                                                                       

during the photo lineup and his demeanor while testifying suggest a significant degree  



                                                                                                                                                                                                                                                 

of  certainty."                               Lacking  the  trial  judge's  perspective  on  Gazewood's  demeanor,  we  



                                                                                                                                                                                                                                                

nonetheless note that Gazewood repeatedly declined to state definitively that Young was  



                                                                                                                                                                                                                                               

the man he had seen. He testified at the evidentiary hearing that when the detective said  



                   44                  Those cases, however, largely involved showups immediately after the                                                                                                                                      



crimes.   See Walker v. State                                                 , 652 P.2d 88, 95 (Alaska 1982) (identification reliable in part                                                                                                  

because "although the record is unclear as to the exact time lapse between the crime and                                                                                                                                                         

the identification, it was less than two hours");                                                                                               Vessell v. State                              , 624 P.2d 275, 279                              

(Alaska 1981) (identification reliable in part because "the show-up took place within                                                                                                                                                   

minutes after the robbery had occurred");                                                                               Howe v. State                           , 611 P.2d 16, 18 (Alaska 1980)                                           

(identification reliable in part because witness "saw Howe again and identified him                                                                                                                                                            

within less than two hours of the robbery");                                                                                  Holden v. State                              , 602 P.2d 452, 457 (Alaska                              

 1979) (identification reliable in part because taking place "no more than two hours after                                                                                                                                                    

 [the witness] first laid eyes on her assailant").                                                  



                   45                  Cf. Biggers, 409 U.S. at 201 ("There was, to be sure, a lapse of seven  

                                                                                                                                                                                                                                         

months between the rape and the confrontation.   This would be a seriously negative  

                                                                                                                                                                                                                                  

factor in most cases.").  

                                          



                   46                  See Brathwaite, 432 U.S. at 114 (noting "the witness' degree of attention"  

                                                                                                                                                                                                                              

as a factor to be considered in determining reliability).  

                                                                                                                              



                                                                                                                        -23-                                                                                                                 7110
  


----------------------- Page 24-----------------------

"trust your instincts," he had narrowed his choice down to two photos that "looked                                                                                                                                                                                                                                             



vaguely familiar" - "I remember the two of them looked vaguely like the person that                                                                                                                                                                                                                                                               



I saw" - and that even though the detective's comment terminated his deliberation with                                                                                                                                                                                                                                                          



the choice of Young, he "[didn't] know necessarily where [he] would have wound up"                                                                                                                                                                                                                                                                 



otherwise.   Describing his earlier identification of Young at the grand jury, Gazewood                                                                                                                                                                                                                              



testified,   "I   said   he   looked   .   .   .   the   most   like   the   guy   I   saw   that   particular  day."   



Throughout   the   evidentiary   hearing   he   cautiously   avoided   stating   that   Young   was  



definitely the man he had seen; his testimony shows at most a relative certainty that                                                                                                                                                                                                                                                            



                                                                                                                                                                                                                                                                                                                                         47  

Young looked more like the perpetrator than did the other subjects he was shown.                                                                                                                                                                                                                                                                 We  



                                                                                                                                                                                                                                                                                                                

conclude that Gazewood's level of certainty does not support a finding of reliability.  



                                                                                                                                                                                                                                                                                                                                                

                                                       Considering Gazewood's "opportunity . . . to view the criminal at the time  



                                                         48 

of the crime,"                                                                                                                                                         

                                                                the superior court found that he was a "bona fide on the scene witness  



                                                                                                                                                                           

who had a good view of the events[,] . . . saw the events unfolding up close," and had  



                           47                          Cf. Walker                                  , 652 P.2d at 95 ("M.M.'s identification at the scene was certain                                                                                                                                                                  



and    without    hesitation    or  equivocation.");   Howe,    611    P.2d    at    18    (holding    an  

identification reliable in part because the witness "stated that Howe was the man that                                                                                                                                                                                                                                                           

robbed him 'without a doubt' ");                                                                                                    Holden, 602 P.2d at 457 ("[The witness] testified at the                                                                                                                                                         

omnibus hearing that she 'was positive' when she saw the photograph that the man                                                                                                                                                                                                                                                               

depicted   was   her   assailant.     Officer   Winkleman   specified   at   that   hearing   that   her  

identification was without hesitation or doubt.").                                                                                                                



                                                       Based on its findings, the superior court may have considered Gazewood's                                                                                                                                                                                

confidence   in   his   identification   at   the   time   of   the   evidentiary   hearing.     Although  

testifying   to   uncertainty   during   the   identification   procedure   itself,   Gazewood   also  

testified at the hearing that he had seen Young's "picture in the paper a couple days ago"                                                                                                                                                                                                                                                    

in connection with the pending trial and that the photo in the paper was "[m]ore similar                                                                                                                                                                                                                                             

to the person [he] recall[ed]" seeing at the shooting.                                                                                                                                                             The appropriate focus, however, is                                                                                                     

Gazewood's level of certainty at the time of the challenged identification procedure.                                                                                                                                                                                                                        



                           48                         Brathwaite, 432 U.S. at 114.  

                                                                                                                                                         



                                                                                                                                                                         -24-                                                                                                                                                                 7110
  


----------------------- Page 25-----------------------

"three to eight seconds to witness [those] events."                                                                                                                                                                            While these findings do reflect                                                                                 



Gazewood's testimony, we also note that his brief view of the driver in his rearview                                                                                                                                                                                                                                                 



mirror was not enough to give him confidence in his identification, as noted above; in                                                                                                                            



fact, Gazewood cited these details to explain why he hesitated to say definitively it was                                                                                                                                                                                                                                                             



Young.   He readily admitted that while the SUV was coming up behind him the light                                                                                                                                                                                                                                                                     



changed, traffic started to move, and his focus was shifting back and forth.                                                                                                                                                                                                                                                       It is also            



worth noting that in Gazewood's quick sighting of the driver in his rearview mirror he                                                                                                                                                                                                                                                                           



identified him as Samoan (whereas Young is African American), identified the SUV as                                                                                                                                                                                                                                                                               



white (whereas Young's SUV was gray or silver), and failed to note the presence of any                                                                                                                                                                                                                                                                      



passenger (until the SUV had passed him, when he saw a hand with a gun extend from                                                                                                                                                                                                                                                                     



the passenger-side window and start shooting).                                                                                                                                                              Under the circumstances, we cannot                                                                                                



agree   that   Gazewood's   opportunity   to   view   the   perpetrator   weighs   in   favor   of   the  

reliability of his identification.                                                                                               49  



                                                                                                                                                                                                                                                                                                                                                                   

                                                        Finally, with regard to "the accuracy of [the witness's] prior description of  



                                                            50  

                                                                                                                                                                                                                                                                                                                             

the  criminal,"                                                       the  superior  court  found  significant  that  Gazewood  had  previously  



                                                                                                                                                                                                                                                                                                                                                       

identified the shooter as a "Black or Samoan man who had his hair pulled back."  This  



                                                                                                                                                                                                                                                                                                                                                            

factual finding,however,isclearly erroneous: whileGazewoodconsistently recalled that  



                                                                                                                                                                                                                                                                                                                                                                 

the driver's hair was "pulled back," he initially described the man not as "Black or  



                            49                           Cf. United States v. Meyer                                                                                   , 359 F.3d 820, 925-26 (6th Cir. 2004) (holding                                                                                                                  



that the first                                      Biggers  factor, the witness's opportunity to view the perpetrator, weighed                                                                                                                                                                                                        

heavily in favor of reliability when the witness, the driver of a postal truck during a                                                                                                                                                                                                                                                                               

holdup, observed the perpetrator "at close range" for "between two and four minutes"                                                                                                                                                                                                           

and had a "conversation" with him about the cash box and the truck keys).                                                                                                                                                                                                                       



                            50                          Brathwaite, 432 U.S. at 114.  

                                                                                                                                                             



                                                                                                                                                                              -25-                                                                                                                                                                     7110
  


----------------------- Page 26-----------------------

                                                                                51  

 Samoan" but as "Samoan."                                                             And other than the pulled-back hair and "kind of a round                                                                                              



face," the record does not reflect that Gazewood could or did describe the driver's facial                                                                                                                                                      



features, clothing, or other distinguishing characteristics.                                                                                                                    While Gazewood's initial                                      



description of the driver may have matched Young in a very general sense, we conclude                                                                                                                                                



that it was not accurate or specific enough to support a finding that his later selection of                                                                                                                                                              

Young's photograph was reliable.                                                                     52  



                                                                                                                                                                                                                           

                                        The Brathwaite test requires that we weigh the five Biggers factors "[i]n  



                                                                                                                                                                                                                                 

light of the totality of the circumstances" against "the corrupting effect of the suggestive  



                                                             53  

                                                                                                                                                                                                                                          

identification itself."                                              Given that only two of the Biggers factors provide only modest  



                                                                                                                                                                                                                                                     

support  for  a  finding  of  reliability,  we  conclude  that  they  cannot  overcome  the  



                                                                                                                                                                                                                                                          

unnecessary suggestiveness of the photo array.  We therefore hold that it was error to  



                                                                                                                                        

admit Gazewood's identification of Young at trial.  



                    51                 We note Gazewood's later trial testimony that when he first contacted the                                                                                                                                       



police, "I had said that the person was - was Samoan or maybe black, I think."                                                                                                                                                              But at   

the   evidentiary   hearing,   when   the   court   was   determining   whether   Gazewood's  

identification could be considered by the jury, Gazewood testified consistently that he                                                    

first thought the driver was Samoan.                                                                              He recalled telling the investigating detective,                                                                 

either on the phone or when he came to Gazewood's office with the photo array, that he                                                                                                                                                                   

thought the driver "was of Samoan descent."                                                                                             



                    52                  Cf. Vessell v. State, 624 P.2d 275, 279 (Alaska 1981) ("The description that  

                                                                                                                                                                                                                                                     

 [the  witnesses]  gave  to  the  police  immediately  after  the  robbery  was  detailed  and  

                                                                                                                                                                                                                         

accurate,  although they differed slightly on the exact type of boots that the robber  

                                                                                                                                                                                                                                           

wore. . . . Finally, both [witnesses] were positive in their statements that [the defendant]  

                                                                                                                                                                                                                                

wore the same clothing as the man that robbed them, although neither claimed that he  

                                                                                                                                                                                                                                                         

could recognize [the defendant's] facial features.").  

                                                                                                                       



                    53                 Holden v. State, 602 P.2d 452, 456-57 (Alaska 1979).  

                                                                                                                                                                                    



                                                                                                                          -26-                                                                                                                   7110
  


----------------------- Page 27-----------------------

                                    c.	         The error in admitting Gazewood's identification at trial                                          

                                                was harmless.   



                        We   conclude,  however,   that   the   error   in   admitting   the   evidence   of  

Gazewood's identification was harmless beyond a reasonable doubt.                                                          54  The admission  



                                                                                                                                        

of an unreliable eyewitness identification at trial is harmless "if there [is] conclusive  



                                                                                                                                                   

independent evidence, apart from the [unreliable] identification testimony[,] . . . that  



                                                                            55  

                                                           

identified [the defendant] as the [culprit]." 



                                                                                                                                    

                        In  prosecuting  Young,  the  State  did  not  rely  solely  on  Gazewood's  



                                                                                                                                                     

identification; two other eyewitnesses placed Young at the scene. Arles Arauz, who had  



                                                                                                                                                  

known  Young  since  high  school,  identified  him  as  the  driver  of  the  SUV.                                                               John  



                                                                                                                                                             

Anzalone, another driver near the shooting, positively identified Young as the driver.  



                                                                                                                                               

And significant circumstantial evidence tied Young to the crime.  The key in his pocket  



                                                                                                                                                      

when he was arrested was found to operate the SUV the State alleged was used in the  



                                                                                                                                                         

shooting.   The State's witnesses identified the SUV as belonging to "Big Nasty," a  



                                                                                                                                                       

nickname for Young.  The nine-millimeter Luger pistol Young was carrying when he  



                                                                                                                                     

was arrested was shown to match bullet casings found at the crime scene.  



                                                                                                                                    

                        Inassessingwhether theerroneous admission ofGazewood'sidentification  



                                                                                                                                          

was harmless, we also find significant the extent to which he qualified his own testimony  



                                                                                                                                         

by emphasizing the brevity of his opportunity to view the perpetrator and his frustration  



                                                                                                                              56  

                                                                                                                                                        

with what he considered to be a suggestive comment at the photo array.                                                            Admission of  



            54          SeeRaphael             v. State, 994 P.2d 1004,1010(Alaska2000) ("Aconstitutional                           



error   is   ground   for   reversal   of   conviction   unless   the   error   is   'harmless   beyond   a  

reasonable doubt.' ").             



            55          McCracken v. State, 521 P.2d 499, 504-05 (Alaska 1974).  

                                                                                                                     



            56          See supra note 41.  

                                                    



                                                                          -27-	                                                                   7110
  


----------------------- Page 28-----------------------

a weak and equivocal identification is more likely to be harmless error than admission                                                                                                                                                                                                                     



                                                                                                                              57  

of a strong and confident one.                                                                                                           



                                                                                                                                                                                                                                                                                                                                                            

                                                        Thus, despite the error in admitting Gazewood's identification, the fact that  



                                                                                                                                                                                                                                                                                                                   

there was "conclusive independent evidence, apart from the [unreliable] identification  



                                                 58  

testimony,"                                                                                                                                                                                                                                                                                                                                                

                                                          implicating Young in the shooting leads us to conclude that the error was  



                                                                                                                                

harmless beyond a reasonable doubt.  



                                                                                                                                                                                                                                                                                                                                             

                                                        2.                          It was not error to allow Anzalone to identify Young in court.  



                                                                                                                                                                                                                                                                                                                                                                   

                                                        Young also argues that it was error to permit Anzalone, who had failed to  



                                                                                                                                                                                                                                                                                                                                                               

identify him at the grand jury, to identify him at trial as the driver after having seen his  



                                                                                                                                                                                                                                                                                           

photo on the television news.  We conclude that this was not error.  



                            57                          See Williams v. Stewart                                                                          , 441 F.3d 1030, 1039 (9th Cir. 2006) (holding that                                                                                                                                                



any error in admitting evidence of suggestive showup was harmless where "[c]ross-                                                                                                                                                                                                                                                    

examination                                                 brought                                   out                  the                  weakness                                         of               [the                    witness's]                                        identification,                                                    the  

 suggestiveness of the circumstances under which it was made, the few seconds she had                                                                                                                                                                                                                                                                       

to see the suspect to begin with, the fact that she had been unable to pick [the defendant]                                                                                                                                                                                                                                   

out of the photo array, and the two and a half years that had elapsed between her five                                                                                                                                                                                                                                                                     

 second encounter on [the date of the incident] and the deposition at which she identified                                                                                                                                                                                                                                         

 [the defendant]");                                                           United States v. Washington                                                                                                 , 353 F.3d 42, 45-46 (D.C. Cir. 2004)                                                                                                  

(holding that any error in admitting evidence of suggestive lineup was harmless beyond                                                                                                                                                                                                                                                      

a reasonable doubt where, among other reasons, "the potential impact on the jury of [the]                                                                                                                                                                                                                                                               

lineup identification was slight because it was, at best, equivocal; she said only that her                                                                                                                                                                                                                                                                   

assailant 'might be number two,' " and defense counsel "denigrated" the identification                                                                                                                                                                                                                             

in cross-examination and closing argument as "the unreliable product of a suggestive                                                                                                                                                                                                                                     

procedure");   State v. Conyers                                                                                               , 236 S.E.2d 393, 396 (N.C. App. 1977) ("[The witness's]                                                                                                                                           

in-court   identification   testimony   before the jury                                                                                                                                                            in this case was so                                                                     weak   [-] she   

testified only that defendant 'resembles one of the guys who went to the back' [-] and                                                                                                                                                                                                                                                                      

the   other   evidence   of   defendant's   guilt,   including   his   signed   confessions[,]   was   so  

overwhelming, that the admission of her testimony, if error at all, was harmless beyond                                                                                                                                                                                                                                                     

any reasonable doubt.").                                         



                            58                          McCracken, 521 P.2d at 504-05.  

                                                                                                                                                                



                                                                                                                                                                              -28-                                                                                                                                                                     7110
  


----------------------- Page 29-----------------------

                                                         a.	                Due process protections against unnecessarily suggestive                                                                                   

                                                                            identifications                                  do           not             apply                  to          Anzalone's                             initial  

                                                                            identification    of    Young    after    seeing    his    picture    on  

                                                                            television.  



                                      Young argues first that Anzalone's identification of him after seeing his                                                                                                                              



                                                                                                                                                                                                               

picture on the television news constitutes an unnecessarily suggestive identification  



procedure and that the superior court should have assessed its reliability under the                                                                                                                                                        



Brathwaite   test before allowing Anzalone to identify Young in court.                                                                                                                                          But the due               



                                                                                                                                                                                                                                             

process protections against unnecessarily suggestive identification procedures do not  



                                                                                                    59  

apply in the absence of state action.                                                                                                                                                                                          

                                                                                                            As the United States Supreme Court has recently  



                                                                                                                                                                                                                         

held, the "due process check on the admission of eyewitness identification [is] applicable  



                                                                                                                                                                                                                                

when the police have arranged suggestive circumstances leading the witness to identify  



                                                                                                                                            60  

                                                                                                                                                   

a particular person as the perpetrator of a crime." 



                                                                                                                                                                                                              

                                      When no improper law enforcement activity is involved, . . .  

                                                                                                                                                                                                  

                                      it   suffices   to   test   reliability   through   the   rights   and  

                                                                                                                                                                                         

                                      opportunities generally designed for that purpose, notably,  

                                                                                                                                                                                       

                                      the presence of counsel at post-indictment lineups, vigorous  

                                                                                                                                                                                                   

                                      cross-examination,  protective  rules  of  evidence,  and  jury  

                                                                                                                                                                           

                                      instructionsonboththefallibility ofeyewitness identification  



                   59                 Nichols v. Eckert                                  , 504 P.2d                        1359, 1362 (Alaska 1973) ("For [the due                                                                         



process] clause to apply there must be state action and the deprivation of an individual                                                                                                                                 

interest of sufficient importance to warrant constitutional protection.");                                                                                                                               cf. Perry v. New                 

Hampshire, 132 S. Ct. 716, 730 (2012) ("[T]he [federal] Due Process Clause does not                                                                                                                                           

require a preliminary judicial inquiry into the reliability of an eyewitness identification                                                                                                                     

when the identification was not procured under unnecessarily suggestive circumstances                                                                                                                         

arranged by law enforcement.").                 



                   60                 Perry, 132 S. Ct. at 720 (emphasis added).  

                                                                                                                                          



                                                                                                                      -29-	                                                                                                             7110
  


----------------------- Page 30-----------------------

                          and the requirement that guilt be proved beyond a reasonable                                    

                                       [61]  

                          doubt.             



                          Consistent with these principles, we held in Kimble v. State that accidental  

                                                                                                                                                      

confrontations do not ordinarily implicate due process concerns.62  

                                                                                                          

                                                                                                                                               

                                                                                                                                 Such a confrontation  



                                                                                                                                                                   

"may be the subject of cross-examination of course, but on the whole the question is one  



                                                                                                                                 63 

                                                               

going to the weight rather than the admissibility of the evidence."                                                                   While the facts in  



                                                                                                                                                                 

Kimble - where the police were alleged to have arranged an "accidental" showup with  



                                                                               64  

                                                                                                                                                                     

the witness - made for a close question,                                           this is not such a case.  Because there was no  



                                                                                                                                                                   

state  action  involved  in  Anzalone's  identification  of  Young  from  a  picture  on  the  



                                                                                                                                                       

television news, due process did not require that the superior court screen it for reliability  



                                      

under Brathwaite.  



                                                                                                                                                                           

                                       b.	          Due process protections against unnecessarily suggestive  

                                                                                                                                                  

                                                    eyewitness  identifications  do  not  apply  to  Anzalone's  

                                                                                                                          

                                                    first-time in-court identification.  



                                                                                                                                                                

                          Young also argues that Anzalone's in-court identification of him was itself  



                                                                                                                                                      

unnecessarily suggestive because it "was equivalent to a show-up, where an individual  



                                                                                                                                                            

is presented with one suspect and asked to make a yes or no identification."  Young  



             61	          Id.  at 721.   



             62	  

                                                                            

                          539 P.2d 73, 77 (Alaska 1975).  



             63  

                                                                                                                                                                    

                          Id.  In Kimble, the defendant challenged an in-court identification after the  

                                                                                                                                                       

witness, present at the police station on an unrelated matter, had identified the defendant  

as he was being led into a holding cell.                                            Id.   at 76-77.              While Kimble claimed that                        

admission of the in-court identification would violate his right to due process, we held                                                                         

                                                                                                                                                          

that  "[t]o  extend  the  Wade-Stovall  line  of  cases  to  purely  accidental  pretrial  

confrontations would place too great a burden on police and prosecutors to isolate                                                                          

witnesses and defendants."                             Id.  at 77.   



             64           See id. at 77.  

                                              



                                                                                 -30-	                                                                          7110
  


----------------------- Page 31-----------------------

observes that he was the only African-American man in the courtroom and that he was                                                                                                                                               



sitting at counsel table with his lawyer.                                                                      He contends that given the suggestiveness of                                                                           



these   circumstances,   the   superior   court   should   have   assessed   the   reliability   of   the  



resulting identification under                                                  Brathwaite  and should have excluded it.                                                                  



                                    We             have              never                directly                  addressed    whether                                        a       first-time    in-court  



identification triggers application of the same due process protections that apply to                                                                                                                                                 



                                                                                              65  

suggestive pretrial identifications.                                                                                                                                                                                                   

                                                                                                       We now decide it does not.   Our conclusion is  



                                                                                                                                                                                                                            

driven by the fundamental differences between identifications derived from state action  



                                                                                                                                                                                                                 

prior to trial and those that occur in the courtroom.  A pretrial identification ordinarily  



                                                                                                                                                                                                                                        

involves only the police and the witness, and how the identification is later evaluated at  



                                                                                                                                                                                                       

trial depends largely on those participants' recollections of it. An in-court identification,  



                                                                                                                                                                                                                               

in  contrast,  occurs  in  the  presence  of  the  judge,  the  jury,  and  the  lawyers.                                                                                                                                         The  



                                                                                                                                                                                                                                    

circumstances under which the identification is made are apparent. Defense counsel has  



                                                                                                                                                                                                               

the opportunity to identify firsthand the factors that make the identification suggestive  



                                                                                            66  

                                                                                                                                                                                                                                   

and to highlight them for the jury.                                                                We also note that there are other ways, though not  



                  65                 This court and the court of appeals have both declined to reach the issue of                                                                                                                      



an allegedly suggestive in-court identification after finding that a consistent pretrial                                                                                                                                

identification   was   proper.     See   Viveros   v.   State,   606   P.2d   790,   793   (Alaska   1980)  

("Because   we   have   concluded   that   the   pre-trial   identification   was   proper,   it  is  

unnecessary to consider whether the in-court identification was permissible in the wake                                                                                                                                       

of an impermissible pre-trial identification.");                                                                            Dunbar v. State                            , 677 P.2d 1275, 1278 n.1                                    

(Alaska App. 1984) ("Our holding that the photographic lineup was not impermissibly                                                                                                                  

suggestive   .   .   .   disposes   of   [the   defendant's]   claim   with   respect   to   the   in-court  

identification.").  



                  66                See People v. Rodriguez, 480 N.E.2d 1147, 1151 (Ill. App. 1985) ("Where  

                                                                                                                                                                                                                     

a witness first identifies the defendant at trial, defense counsel may test the perceptions,  

                                                                                                                                                                                                           

memory and bias of the witness, contemporaneously exposing weaknesses and adding  

                                                                                                                                                                                                                          

                                                                                                                                                                                                        (continued...)  



                                                                                                                 -31-                                                                                                          7110
  


----------------------- Page 32-----------------------

used in this case, in which the risks of in-court misidentifications can be                                               either minimized   



in practice or pointed out to the jury.                            Expert witnesses can testify about the problems                      



                                                                               67  

inherent in first-time in-court identifications;                                                                                   

                                                                                   the trial court may grant a defendant's  



                                                                                                                                                   

request for an in-court lineup or to be seated somewhere other than counsel table for the  

identification.68  



                                                                                                                                                    

                       We recognize that this is a close question, and by our decision today we do  



                                                                                                                                                    

not mean to foreclose the possibility that a first-time in-court identification could be  



                                                                                                                                              

unnecessarily suggestive. For example, courts have found due process violations where  



                                                                                                                                                     69  

                                                                                                                                                          

the prosecutor improperly coached the witness into making an in-court identification. 



            66(...continued)  



                                                                                                                                         

perspective in order to lessen the hazards of undue weight or mistake."). Here, Young's  

                                                                                                                                 

attorneyscross-examinedAnzalonevigorously onthecircumstances oftheidentification  

                                                                          

and his failure to identify Young earlier.  



            67         In  this  case,  Young  sought  to  introduce  expert  testimony  about  the  

                                                                                                                                      

fallibility of eyewitness identifications, but the superior court refused to allow it on  

                                                                                                                                                   

grounds that the State had not received adequate notice.  Young did not challenge that  

                                                                                                                                                  

decision on appeal.  

                      



            68         See, e.g., United States v. Thompson, 524 F.3d 1126, 1136 (10th Cir. 2008)  

                                                                                                                                              

("[A]lthough the district court offered Mr. Thompson the opportunity to use an in-court  

                                                                                                                                          

line-up or photos to lessen the suggestiveness of the in-court identification, he was not  

                                                                                                                                                   

constitutionally entitled to such methods and, in any event, did not take advantage of  

                                                                                                                                                    

them.");  United States v. Domina, 784 F.2d 1361, 1369 (9th Cir. 1986) ("There is no  

                                                                                                                                                    

constitutional entitlement to an in-court line-up or other particular methods of lessening  

                                                                                                                                        

the suggestiveness of in-court identification, such as seating the defendant elsewhere in  

                                                                                                                                                     

the room.  These are matters within the discretion of the court.").  

                                                                                                    



            69         See United States v. Greene, 704 F.3d 298, 307 (4th Cir. 2013) (holding  

                                                                                                                                         

that due process was violated "where the phrasing of a question suggest[ed] the desired  

                                                                                                                                            

response" and "the witness understandably may have felt pressure to find something in  

                                                                                                                                                     

the defendant that reminded her of the bank robber," thereby presenting "a suggestive  

                                                                                                                                 

                                                                                                                                (continued...)  



                                                                        -32-                                                                   7110
  


----------------------- Page 33-----------------------

In this case, however, Anzalone volunteered his identification of Young. The                                                                                                         prosecutor  



simply asked him whether he could "give us any description of the person that you saw,"                                                                                                           



to which Anzalone answered, "He's in the courtroomtoday." The                                                                                             prosecutor asked, "Do  



you recognize him?" and Anzalone responded, "He's sitting at the defense table."                                                                                                                      



                                We emphasize that the due process protections that have been developed   



around the admissibility of eyewitness identifications, and which we clarify today, are                                                                                                                 



intended to correct for unnecessarily suggestive police conduct during its investigation,                                                                                      



and that courtrooms have a number of other safeguards - impartial judge and jury,                                                                                                                  



competent defense counsel, the rules of evidence, the State's burden of proof - that are                                                                                                                



                                                                                 70  

intended   to  ensure   due   process.                                                                                                                                                               

                                                                                          While  recognizing  that  the  suggestiveness  and  



                                                                                                                                                                                                  

reliability of first-time in-court identifications present many of the same issues as those  



                                                                                                                                                                                                                 

that affect pretrial identifications, we are not prepared to extend the same rules to both.  



                                                                                                                                                                                            

We conclude that the superior court did not err when it allowed Anzalone to identify  



                                                      

Young in court as the driver.  



                69(...continued)  



                                                                                                                                                                                             

situation in which it is not clear whether the witness's own recollections, or outside  

                                                                                                                  

pressures, are driving the testimony"); Bennett v. Miller, 419 F. App'x 18, 20 (2d Cir.  

                                                                                                                                                                                                          

2011) ("[The witness] never identified [the defendant] prior to trial; he twice failed to  

                                                                                                                                                                                                        

make an in-court identification while on the stand; and only after he watched from the  

                                                                                                                                                                                           

galley when the prosecutor identified [the defendant] as the shooter did [the witness]  

                                                                          

undertake to make an in-court identification.").  



                70              See Perry v. New Hampshire, 132 S. Ct. 716, 728-29 (2012) (listing "other  

                                                                                                                                                                                                

safeguards built into our adversary system that caution juries against placing undue  

                                                                                                                                                                                                

weight  on  eyewitness  testimony  of  questionable  reliability,"  including  the  right  to  

                                                                                                                                                                                                         

confront  witnesses,  the  right  to  counsel,  eyewitness-specific  jury  instructions,  the  

                                                                                                                                                                                                      

evidence  rules  excluding  relevant  but  unfairly  prejudicial  evidence,  and  expert  

                                                                                                                                                                                              

testimony).  



                                                                                                   -33-                                                                                            7110
  


----------------------- Page 34-----------------------

                                         3.	                 Becausethe                             Brathwaite  testdoes not adequately                                                                              protect theright                     

                                                             to due process under the Alaska Constitution, we adopt a new                                                                                                                                

                                                              approach                              to            deciding                            the              admissibility                                     of            eyewitness  

                                                              identification evidence in future cases.                                                                  



                                         Although the result in Young's case is unaffected by a prospective change                                                                                                                                  



in the law, we are convinced that Alaska's existing test for the admission of eyewitness                                                                                                                                                



identifications does not go far enough in protecting the right to due process under the                                                                                                                                                                         



                                                                                                                                                                                                                                 71  

Alaska Constitution. We                                                      generally refrain from issuing advisory opinions,                                                                                                                           

                                                                                                                                                                                                                                       but at times  



                                                                                                                                                                                                                                                                    

we set aside this judicial policy of self-restraint to correct or clarify important aspects of  



                        72  

                                                                                                                                                                                                                                                                

the law.                         In the exercise of our general "supervisory power to formulate standards for  

                                                                                                                                                                                             73   and our more specific  

                                                                                                                                                                                                                                                 

the enforcement of criminal law in the courts of this state" 

"supervisory powers over state courts pertaining to the admissibility of evidence,"74  we  

                                                                                                                                                                                                                                                                 



                     71	                 Larson v. State                                , 254 P.3d 1073, 1078 (Alaska 2011).                                                           



                     72                  See,   e.g.,   Lyons v.                                     Midnight  Sun  Transp.   Servs.,   Inc., 928 P.2d                                                                                                 1202,  



 1204-05 (Alaska 1996) (finding that "any possible error resulting from the use of [a]  

                                                                                                                                                                                                                                                                 

suddenemergencyinstruction"was                                                                              harmless but"tak[ing]this                                                       opportunitytodisapprove                      

of the instruction's further use," with an in-depth discussion of the issue);                                                                                                                                                           Moreau v.   

State, 588 P.2d 275, 283-84 (Alaska 1978) (holding that a codefendant voluntarily  

                                                                                                                                                                                                                                       

waived his Sixth Amendment right to individual counsel but requiring trial courts to                                                                                                                                                                               

apply stricter standards for dual representation in future cases, modeled after Minnesota                                                                                                                                                

precedent);   Thurlkill v. State                                                         , 551 P.2d 541, 544-45 & n.9 (Alaska 1976) (finding no                                                                                                                  

reversible error in a presentence report's reliance on unverified police contacts but                                                                                                                                                                          

instructing trial courts in future cases to expressly state that they are not relying on those                                                                                                                                                           

contacts in sentencing, and also "urg[ing] that the probation personnel act responsibly   

in this area").                                



                     73                  Simms v. State, 464 P.2d 527, 528 (Alaska 1970) (exercising supervisory  

                                                                                                                                                                                                                                     

power to advise trial courts about limiting jurors' access to materials beyond what was  

                                                                                                                                                                                                                                                              

admitted in evidence).  

                                     



                     74                  Roman  v.  State,  570  P.2d  1235,  1243-44  (Alaska  1977)  (exercising  

                                                                                                                                                                                                                                     

supervisory power to require that conditions of parole authorizing warrantless searches  

                                                                                                                                                                                                                                                

                                                                                                                                                                                                                                 (continued...)  



                                                                                                                               -34-	                                                                                                                      7110
  


----------------------- Page 35-----------------------

today announce a new test for the admissibility of eyewitness identification testimony                                                                    



that we believe is consistent with the due process protections of Alaska's constitution.                                                            



                           In so doing we necessarily depart from                                             Manson v. Brathwaite                            and the   



Alaska cases that relied on it as the touchstone.                                                 "We do not lightly overrule our past                       

                      75   However, "stare decisis is a practical, flexible command that balances our  

decisions."                                                                                                                                                            



community's competing interests in the stability of legal norms and the need to adapt  

                                                                                                                                                                   

those norms to society's changing demands."76   With these considerations in mind, "we  

                                                                                                                                                                      



will overrule a prior decision only when ' "clearly convinced that the rule was originally  

                                                                                                                                                          



erroneous or is no longer sound because of changed conditions, and that more good than  

                                                                                                                                                                     

harm would result from a departure from precedent." ' "77   We are convinced that this is  

                                                                                                                                                                           



the case with respect to the Brathwaite test.  

                                                                                



                                        a.           Changed conditions justify replacing the Brathwaite test.  

                                                                                                                                                                               



                           The "changed conditions" that justify abandoning a prior decision include  

                                                                                                                                                               



where "related principles of law have so far developed as to have left the old rule no  

                                                                                                                                                                        



more than a remnant of abandoned doctrine, [or] facts have so changed or come to be  

                                                                                                                                                                         

seen  so  differently,  as  to  have  robbed  the  old  rule  of  significant  application."78  

                                                                                                                                                                               



                                                                                                                                                                      

Developments in the science related to the reliability of eyewitness identifications, and  



             74(...continued)  



                                                                                                                                                                 

"be specified by the Parole Board and not left to the discretion of individual parole  

                      

officers").  



             75            State v. Dunlop, 721 P.2d 604, 610 (Alaska 1986).  

                                                                                                                    



             76            State  v.  Carlin,  249  P.3d  752,  757  (Alaska  2011)  (alteration  omitted)  

                                                                                                                                                            

(quoting Pratt &Whitney Canada, Inc. v. Sheehan, 852 P.2d 1173, 1175 (Alaska 1993)).  

                                                                                                                                                               



             77           Pratt & Whitney, 852 P.2d at 1176 (quoting Dunlop, 721 P.2d at 610).  

                                                                                                                                                              



             78           Id.  (alteration in original) (quoting Planned Parenthood v. Casey, 505 U.S.  

                                                                                                                                                                     

833, 855 (1992)).  

                    



                                                                                   -35-                                                                            7110
  


----------------------- Page 36-----------------------

courts' responses to those developments, have significantly weakened our confidence in                                                                                                                                        



the  Brathwaite  test as a tool for preventing the admission of                                                                                            unreliable evidence at trial,                              



and therefore its capacity for protecting the due process rights afforded by the Alaska                                                                                                                         

Constitution.79  



                                                                                                                                                                                                     

                                   The State aptly observes that doubts about the reliability of eyewitness  



                                                                                                                                                                                                                   

identifications are neither "revelatory nor recent."  The United States Supreme Court  



                                                                                                                                                                                                                     

noted even before Brathwaite that "[t]he vagaries of eyewitness identification are well- 



                                                                                                                                                                                                                         

known; the annals of criminal law are rife with instances of mistaken identification," and  



                                                                                                                                                                                                                              

"[t]he hazards of such testimony are established by a formidable number of instances in  



                                                                                                                   80  

                                                                                                                                                                                                                           

the records of English and American trials."                                                                              But "the hazards of such testimony" are  



                                                                                           

even more well documented since Brathwaite.  



                                                                                                                                                                                                     

                                   Brathwaite  was decided in 1977, and "[t]he modern era of eyewitness  



                                                                                                                                                                                                                 81  

                                                                                                                                                                                                                        

identification research began" more or less contemporaneously, "in the 1970s."                                                                                                                                           But  



                                                                                                                                                                                                                             

"[t]he past few decades have seen an explosion of additional research that has led to  



                                                                                                                                                                                                                      

important insights into how vision and memory work, what we see and remember best,  



                  79               In  Perry v. New Hampshire                                               , the United States Supreme Court reaffirmed     



its reliance on                      Brathwaite  under the United States Constitution.                                                                                132 S. Ct. 716, 723-25                    

(2012).   But while "[t]he Federal Constitution protects the due process rights of all                                                                                                                                     

Americans, . . . federal law does not preclude the Alaska Constitution from providing                                                                                                                    

more rigorous protections for the due process rights of Alaskans."                                                                                                             Doe v. State, Dep't                  

of Pub. Safety                       , 92 P.3d 398, 404 (Alaska 2004).                                                         



                  80                United States v. Wade, 388 U.S. 218, 228 (1967).  

                                                                                                                                                  



                  81               NAT 'L  ACAD.  OF  SCI., I  DENTIFYING THE                                                            CULPRIT : A                    SSESSING  EYEWITNESS  



IDENTIFICATION  16 (2014) [hereinafter I  DENTIFYING THE  CULPRIT].  

                                                                       



                                                                                                            -36-                                                                                                     7110
  


----------------------- Page 37-----------------------

                                                                                      82  

and   what   causes   these   processes   to   fail."                                        The   Supreme   Court   of   New   Jersey  



comprehensively surveyed the literature in a 2011 opinion that we find particularly                                                              



persuasive.   The court assigned a special master to consider the scientific evidence on                                                                           



eyewitness   identifications   and,   after   receiving   the   master's   report,   summarized:   



"Virtually    all    of    the    scientific    evidence    considered    on    remand    emerged    after  



[Brathwaite],"   and,   while   the   1970s   "produced   only   four   published   articles   in  



psychology   literature   containing   the   words   'eyewitness'   and   'identity'   in   their  



abstracts[, . . .] more than two thousand studies related to eyewitness identification have                                                                    

been published in the past thirty years."                                    83  



                                                                                                                                                                 

                          The State contends that we should not consider scientific evidence that was  



                                                                                                                                                                   

not subjected  to  the adversarial process at trial.                                                We "recognize that evaluation of  



                                                                                                                                                                 

scientific            information                at      the       appellate             level         is     without            the       advantage               of  



                                       84  

cross-examination."                                                                                                                                           

                                           Other states' high courts have followed different procedural paths  



                                                                

when modifying their standards for evaluating eyewitness identifications.  The special  



                                                                                                                                                              

master appointed by the New Jersey Supreme Court "to evaluate scientific and other  



                                                                                                                                                          

evidence  about  eyewitness  identifications  .  .  .  presided  over  a  hearing  that  probed  



                                                                                                                                                             

testimony by seven experts and produced more than 2,000 pages of transcripts along  



                                                                                                                                                              

with hundreds of scientific studies," then issued an extensive report on which the court  



             82           Id.  at 69.   



             83  

                                                                                                                                           

                          State v. Henderson, 27 A.3d 872, 892 (N.J. 2011); see also REPORT OF THE                                                               

SPECIAL   MASTER,  State    v.    Henderson,    A-8-08,    at    8-14    (N.J.    June    18,    2010),  

                  

https://www.judiciary.state.nj.us/pressrel/HENDERSON%20FINAL%20BRIEF%20.  

PDF%20(00621142).PDF.  



             84  

                                                                                                         

                          State v. Erickson, 574 P.2d 1, 6 (Alaska 1978).  



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----------------------- Page 38-----------------------

                               85  

heavily relied.                     Other courts, acknowledging the scientific consensus,                                                                havenot required     



that the science be tested again in a trial-like process.                                                                    The Massachusetts Supreme                    



 Judicial Court convened a "Study Group" in 2011 to determine how it could improve its                                                                                                   



                                                                                                                                                              86  

model jury instructions for the evaluation of eyewitness identifications.                                                                                                              

                                                                                                                                                                    In 2015 the  



                                                                                                                                                                  

 court "review[ed] the scholarly research, analyses by other courts, amici submissions,  



                                                                                                                                                             87  

                                                                                                                                                                            

 and the Study Group Report and comments" and adopted new standards.                                                                                              The supreme  



                                                  88                      89                       90                91                                     92  

                                                                                                                                                                                

 courts of Connecticut,                                Hawai'i,                   Oregon,               Utah,             and Wisconsin,                         while noting  



               85            Henderson, 27 A.3d at 877.                          



               86             See Commonwealth v. Walker                                         , 953 N.E.2d 195, 208 n.16 (Mass. 2011)                                         



 (convening study group "to consider how we can best deter unnecessarily suggestive  

                                                                                                                                                                       

procedures and whether existing model jury instructions provide adequate guidance to                                                                                                      

juries in evaluating eyewitness testimony");                                                     see also          SUPREME  JUDICIAL  COURT  STUDY  

 GROUP ON EYEWITNESS EVIDENCE, REPORT AND RECOMMENDATIONS TO THE JUSTICES  

                                                                                                                                                                                                

 (2013), http://www.mass.gov/courts/docs/sjc/docs/eyewitness-evidence-report- 2013.pdf.  



               87             Commonwealth v. Gomes                                   , 22 N.E.3d 897, 905, 909-10 (Mass. 2015).                                        



               88             State v. Guilbert, 49 A.3d 705, 720-22 (Conn. 2012) (holding that expert  

                                                                                                                                                                                 

testimony should be allowed on the reliability of eyewitness identifications; relying both  

                                                                                                                                                                                     

 on "[t]he extensive and comprehensive scientific research, as reflected in hundreds of  

                                                                                                                                                                    

peer  reviewed  studies  and  meta-analyses,  [which]  convincingly  demonstrates  the  

                                                                                                                                                                                      

 fallibility of eyewitness identification testimony and pinpoints an array of variables that  

                                                                                                                                                                                      

 are  most  likely  to  lead  to  a  mistaken  identification,"  and  on  the  fact  that  courts  

                                                                                                                                                                                

nationwide  have  followed  this  science  in  revising  their  approaches  to  eyewitness  

                                                                                                                                                                     

testimony).  



               89             State v. Cabagbag, 277 P.3d 1027, 1035-38 (Haw. 2012) (describing other  

                                                                                                                                                                                   

 states'  adoption  of  new  standards  for  the  evaluation  of  eyewitness  testimony  but  

                                                                                                                                                                                      

 concluding that "[m]ost significantly, the impetus for a change in our approach lies in the  

                                                                                                                                                                                        

 empirical research that reveals that people generally do not understand all of the factors  

                                                                                                                                                                                

that affect the reliability of an eyewitness identification").  

                                                                                             



               90             State v. Lawson, 291 P.3d 673, 685 (Or. 2012) (en banc) ("Based on our  

                                                                                                                                                                                       

                                                                                                                                                                 (continued...)  



                                                                                           -38-                                                                                    7110
  


----------------------- Page 39-----------------------

judicial trends, have also relied directly on the scientific research to explain why their                                                                                                            



 standards should be modified.                                             



                                 We consider it unnecessary to retest the validity of the scientific evidence                                                                               



 on which these other high courts rely. We are not relying on disputed scientific evidence                                                                                                  



 to disturb or affirm the verdict in this case, but rather identifying factors for trial courts'                                                                                                



 future use - factors other courts have found highly relevant to their constitutional                                                                             



 guarantees of due process. We adopted the                                                             Brathwaite  test of reliability in 1979 without                                         



                                                                                                                                                          93  

 reference to whether its assumptions were scientifically valid.                                                                                                                                       

                                                                                                                                                                  In the decades that  



                                                                                                                                                                                             

 followed we applied a "totality of the circumstances" test that included the Biggers  



                 90(...continued)  



                                                                                                                                                                                                         

 extensive review of the current scientific research and literature, we conclude that the  

                                                                                                                                                                                                       

 scientific  knowledge  and  empirical  research  concerning  eyewitness  perception  and  

                                                                                                                                                                                                     

 memory  has  progressed  sufficiently  to  warrant  taking  judicial  notice  of  the  data  

                                                                                                                                                                                         

 contained in those various sources as legislative facts that we may consult for assistance  

                                                                                                                                                                                      

 in determining the effectiveness of our existing test for the admission of eyewitness  

                                                                 

 identification evidence.").  



                 91              State v. Clopten, 223 P.3d 1103, 1108 (Utah 2009) (concluding that a  

                                                                                                                                                                                                  

 cautionary instruction was not enough of a safeguard and that expert testimony on  

                                                                                                                                                                                                          

 eyewitness identifications should generally be admitted as well; relying directly on  

                                                                                                                                                                                                          

 scientific research, though noting:   "That the empirical data is conclusive on these  

                                                                                                                                                                                                    

 matters is not disputed by either party in this case and has not been questioned by this  

                                                                                                                                                                    

 court in [its] decisions [since 1986, when the court first acknowledged the inherent  

                                                                                                                                                                                            

 weaknesses of eyewitness identification]").  

                                                                 



                 92              State v.  Dubose,  699  N.W.2d 582, 591-92  (Wis.  2005)  (deciding that  

                                                                                                                                                                                                       

 showups are inherently suggestive; revisiting reliance on Biggers and Brathwaite in light  

                                                                                                                                                                                                      

 of subsequent "extensive studies on the issue of identification evidence, research that is  

                                                                                                                                                                                                             

 now impossible for us to ignore").  

                                                                                      



                 93             Holden v. State, 602 P.2d 452, 456 (Alaska 1979) (quoting Manson v.  

                                                                                                                                                                                                            

Brathwaite, 432 U.S. 98, 114 (1977)).  

                                                                         



                                                                                                    -39-                                                                                             7110
  


----------------------- Page 40-----------------------

                                                                                                                                                         94  

 factors because the Supreme Court had decided those factors were relevant.                                                                                   As our   



 sister courts find reason to be dissatisfied with                                            Brathwaite  and the                    Biggers  factors, it is              



 appropriate that we take note of their concerns and use their reasoning to inform our own                                                                           



 constitutional analysis. We find highly significant the extent to which other courts have                                                                          



reviewed   the   evidence,   accepted   it   as   valid,   and   filtered   it   through   their   own  



 constitutional analyses.   



                           Ultimately,   the   movement  away  from   the   Brathwaite   test   in   other  



jurisdictions,   in   reliance   on   advances   in   the   relevant   research,   convinces   us   that  



                                                   95  

 conditions have changed.                                                                                                                                            

                                                        We conclude that "the legal landscape is very different than  



                                                                                                

 it was" when we decided to follow Brathwaite 37 years ago, and "[t]his new diversity  



                                                                                                                                                                          

 of opinions among the high courts of states throughout the country is another reason to  



                                                                                                                                                                          

 conclude that the 'changed conditions' element of the test for overruling precedent is  

 satisfied."96  



              94           See, e.g.        ,   Vessell v. State            , 624 P.2d 275, 279 (Alaska 1981).                        



              95  

                                                                                                                                                                

                           See,  e.g.,  State  v.  Carlin,  249  P.3d  752,  758,  761  (Alaska  2011)  

 (considering "the growing number of states that have rejected" a proposition of law in         

                                                                                                                                                                          

holding that "the 'changed conditions' element of the test for overruling precedent is  

                                                                                                                                             

 satisfied"); Tegoseak v. State, 221 P.3d 345, 359 (Alaska App. 2009) ("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.").  



              96           Carlin, 249 P.3d at 760-61; see also Charles v. State, 326 P.3d 978, 984  

                                                                                                                                                                      

n.58  (Alaska 2014) ("Our conclusion today that Judd  was erroneous is bolstered by  

                                                                                                                                                                        

 changed conditions. . . .  [I]n Judd we were persuaded in part to adopt the Linkletter  

                                                                                                                                                          

 criteria because of their universal acceptance. . . .  But after Griffith it is no longer true  

                                                                                                                                                                      

that the weight of authority supports Linkletter for direct review retroactivity." (internal  

                                                                                                                                                             

 citations omitted)).  

                   



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----------------------- Page 41-----------------------

                                    We also conclude that "more good than harmwould result fromadeparture                                                                                                      



                                                                            97  

from"   the   Brathwaite   test.                                                                                                                                                                                                 

                                                                                       "It  is  indisputable  that  a  primary  goal,  perhaps  the  



                                                                                                                                                                                                                       

paramount goal, of the criminal justice system is to protect the innocent accused against  



                                                                     98  

                                                                                                                                                                                                    

anerroneousconviction,"                                                   andwecannot doubt thatmistakeneyewitness identifications  



                                                                                      99  

                                                                                                                                                                                                                            

lead  to  wrongful  convictions.                                                                 Justice  Sotomayor,  dissenting  in  Perry  v.  New  



                                                                                                                                                                                                          

Hampshire,   noted  that  "[t]he  empirical  evidence  demonstrates   that  eyewitness  



                                                                                                                                                                                                                               

"misidentification  is  '  "the  single  greatest  cause  of  wrongful  convictions  in  this  



                                      100  

                                                                                                                                                                                                              

country."  '  "                                   Even  the  majority  opinion  in  Perry  "d[id]  not  doubt  either  the  



                                                                                                                                                            101  

                                                                                                                                                                                                                                  

importance or the fallibility of eyewitness identifications."                                                                                                       And the risks posed by the  



                                                                                                                                                                                                                

admission of unreliable identifications is magnified by the effect eyewitness testimony  



                                                                                                                                                                                                            

has on the jury:  as Justice Brennan noted, "[T]here is almost nothing more convincing  



                  97                 Carlin, 249 P.3d at 757.                                             In making this determination, we "balance the                                                                           



benefits of adopting a new rule against the benefits of stare decisis:                                                                                                               providing guidance   

for theconduct                           ofindividuals,creating                                        efficiency in litigationby avoiding therelitigation                                                   

of decided issues, and maintaining public faith in the judiciary."                                                                                                             Id.  at 761-62.                          



                  98                Shaw v. State, Dep't of Admin., 861 P.2d 566, 570 (Alaska 1993).  

                                                                                                                                                                                                     



                  99                See, e.g., Samuel R. Gross et. al., Exonerations in the United States 1989  

                                                                                                                                                                                                                             

                                                              RIM. L. & C                     RIMINOLOGY  523, 542 (2005) ("The most common                                                                       

 Through 2003, 95 J. C 

                                                    

cause of wrongful convictions is eyewitness misidentification.");                                                                                                              Tegoseak, 221 P.3d at                                  

360 ("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.' " (alterations in original) (quoting Kevin Johnson,                                                                                                    States Change Police Line-                                  

ups After Wrongful Convictions                                                        , USA T                ODAY, Sept. 17, 2009)).                     



                  100  

                                                                                                                                                                                                                                      

                                     132 S. Ct. 716, 738-39 (2012) (Sotomayor, J., dissenting) (quoting State v.  

                                                                                                  

Henderson, 27 A.3d 872, 885 (N.J. 2011)).  



                  101               Id. at 728.  

                                                    



                                                                                                                -41-                                                                                                         7110
  


----------------------- Page 42-----------------------

than a live human being who takes the stand, points a finger at the defendant, and says                                                                                   



                                       102  

 'That's the one!' "                         



                                                                                                                                                            

                            In sum, we are convinced that the Brathwaite  test does not adequately  



                                                                                                                                                                          

 assess the reliability of eyewitness identifications and thus allows the admission of very  



                                                                                                                                                                       

persuasive evidence of doubtful reliability.  In the belief that a new approach - based  



                                                                                                                                                          

 on  a  better  understanding  of  the  factors  affecting  the  reliability  of  eyewitness  



                                                                                                                                                                             

 identifications -will lead to the exclusion of unreliable evidence and thereby reduce the  



                                                                                                                                                                              

risk of wrongful convictions, we conclude that breaking away from our long reliance on  



                                                                                                      103  

                                                                                                            

the Brathwaite test will do more good than harm. 



                                                                                                                                                              

                                          b.	          The  scientific  understanding  of  the  factors  affecting  

                                                                                                                                                       

                                                       eyewitness identifications has evolved since Brathwaite.  



                                                                                                                                                                          

                            The science of human memory developed since Brathwaite  shows that  



                                                                                                                                                                   

memory does not function like a videotape, on which events are simply stored linearly  



                                                                                          104  

                                                                                                                                                                              

to be recalled later in the same linear way.                                                     Instead, there are three major stages of  



                                                                                                                                                                 

memory and recall.  First, in the acquisition stage, "the event is perceived by a witness,  



                                                                                                                                                                      

 and information is entered into the memory system"; second, in the retention stage,  



                                                                                                                                                                  

 "some time passes before a witness tries to remember the event"; finally, in the retrieval  



              102           Watkins v. Sowders                       , 449 U.S. 341, 352 (1981) (Brennan, J., dissenting)                                   



 (emphasis omitted) (quoting E                                 LIZABETH  LOFTUS, E                       YEWITNESS  TESTIMONY   19 (1979)).   



              103           See Henderson                  , 27 A.3d at 928 ("At the core of our system of criminal                                              



                                                                                                                                                              

justice  is  the  'twofold  aim  .  .  .  that  guilt  shall  not  escape  or  innocence  suffer.'  "  

 (alteration in original) (quoting                                Berger v. United States                         , 295 U.S. 78, 88 (1935))).           



              104           See  ELIZABETH   F. L                     OFTUS   ET AL              ., E   YEWITNESS   TESTIMONY: C                                IVIL AND   

                                     

 CRIMINAL  2:2 (5th ed. 2014).                     

                       



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----------------------- Page 43-----------------------

                                                                                                               105  

stage, "the witness tries to recall the stored information."                                                          Eyewitness memory is                    



malleable, and many factors can affect the reliability of a memory at each stage of the                                                                     



                                           106  

process of recalling it.                                                                                                                                       

                                                  And as the court of appeals noted in  Tegoseak v. State, a  



                                                                                                                                                            

mistaken identification at the beginning of a criminal investigation can "become" the  



                                                                                                                                                     

witness's memory for purposes of all subsequent identifications; the erroneous picture  



                                 107  

                                        

displaces the fact. 



                                                                                                                                                

                         Scientific literature often divides the factors that can affect the reliability  



                                                                                                                                             

of  eyewitness  identifications  into  two  categories:                                               "system  variables,"  which  are  



                                                                                                                                                           

manipulable  and  can  be  influenced  by  the  criminal  justice  system  (such  as  the  



                                                                                                                                                     

instructions given a witness during a lineup); and "estimator variables," which cannot  



                                                                      

be influenced by the criminal justice system because they are related to environmental  



                                                                                                                                      108  

                                                                                                                                                 

conditions and personal characteristics (such as the stress of the moment).                                                                In replacing  



                                                                                                                                                      

the Biggers factors with a list that draws on these two categories of variables, we follow  



                                                                                                                                                              

most  closely  the  New  Jersey  and  Oregon  supreme  courts'  decisions  in  State  v.  



             105         Id.  



             106         Id. ; Steven Penrod                   et al.,      The Reliability of Eyewitness Testimony:                                           A  



Psychological   Perspective,   in   THE   PSYCHOLOGY   OF   THE  COURTROOM   119,   122-46  

(Norbert L. Kerr & Robert M. Bray eds., 1982).                                



             107         221 P.3d 345, 355 (Alaska App. 2009) (citing Gary L. Wells & Deah S.  

                                                                                                                                                              

Quinlivan, Suggestive Eyewitness Identification Procedures and the Supreme Court's  

                                                                                                                                                    

Reliability Test in Light of Eyewitness Science:  Thirty Years Later, 33 LAW  & H                                                                         UM.  

                                                                                                                                        

   EHAVIOR  1-24 (2009)).   

B                     



             108  

                                                                                                                                                 

                         GaryL.Wells, AppliedEyewitness-TestimonyResearch: SystemVariables  

                                                                ERSONALITY   & S                OC. P      SYCHOL. 1546, 1548 (1978);               

and Estimator Variables, 36 J. P 

IDENTIFYING THE  CULPRIT,  supra  note 81, at 119.                                   



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----------------------- Page 44-----------------------

                        109                                                110 

Henderson                     and  State v. Lawson.                               Like those courts, we recognize that the science   



of eyewitness identifications is "probabilistic"; it cannot say for certain whether any                                                                                            



particular identification is accurate but rather identifies the variables that are relevant to                                                                                         

evaluating the risk of a misidentification.                                              111  



                                                             

                                           System Variables  



                                                                                                                         112  

                                                                                       

                                                          i.            Blind administration 



                                                                                                                                                                                   

                              Was  the  lineup  or  photo  array  administered  "blind"?                                                                            When  the  



                                                                                                                                                               

administrator of an identification procedure knows who the suspect is, the administrator  



                                                                                                                                                                        113  

                                                                                                                                                                               

may  subconsciously  affect  the  reliability  of  the  witness's  identification.                                                                                              Such  



               109           27 A.3d 872, 894-910 (N.J. 2011).                             



               110           291 P.3d 673, 685-88 (Or. 2012) (en banc).                                       



               111           See   Henderson,  27   A.3d   at   894   ("[E]yewitness   identification   research  



remains probabilistic, meaning that science cannot say whether an identification in an  

                                                                                                                                                                                      

actual case is accurate or not.  Instead, science has sought to answer, in the aggregate,  

which identification procedures and external variables are tied to an increased risk of  

                                                                                                                                                                                       

misidentification."); Lawson, 291 P.3d at 685 ("We recognize that the scientific research  

                                                                                                                                                                          

is 'probabilistic' - meaning that it cannot demonstrate that any specific witness is right  

                                                                                                                                                                                 

or wrong, reliable or unreliable, in his or her identification. . . . [But] it is imperative that  

                                                                                                                                                                                    

law enforcement, the bench, and the bar be informed of the existence of current scientific  

                                                                                                                                                                        

research and literature regarding the reliability of eyewitness identification . . . .").  

                                                                                                                                                                         



               112           See Henderson, 27 A.3d at 896-97; Lawson, 291 P.3d at 686.  

                                                                                                                                                         



               113            See Lawson, 291 P.3d at 706 ("To guard against [unintentional] influence,  

                                                                                                                                                                      

experts  recommend  that  all  identification  procedures  be  conducted  by  a  'blind'  

                                                                                                                                                                           

administrator - a person who does not know the identity of the suspect."); see also  

                                                                                                                                                                                  

 Sarah M. Greathouse&Margaret Bull Kovera, Instruction Bias and LineupPresentation  

                                                                                                                                                                

Moderate the Effects of Administrator Knowledge on Eyewitness Identification, 33 LAW  

                                                                                                                                                                                 

&   HUM.    BEHAV.  70,   71   (2009)   ("[P]olice   officers   may   leak   their   hypotheses   by  

consciously or unconsciously communicating to witnesses which lineup member is the                                                                                                   

suspect.").  



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----------------------- Page 45-----------------------

                                                                                                                                                           114  

influences are referred to as "interpersonal expectancy effects":                                                                                                  "the tendency for                   



experimenters to obtain results they expect . . . because they have helped to shape that                 



                         115  

response."                                                                                                                                                                                            

                                     In  the  eyewitness  identification  context,  this  can  occur  when  the  



                                                                                                                                                                                                    

administrator  of  a  lineup  or  photo  array  knows  which  person  is  the  suspect  and,  



                                                                                                                                                                                            116  

                                                                                                                                                                                                    

consciously or not, gives cues to the witness that affect the witness's choice.                                                                                                                      The  



                                                                                                                                                                                                        

phenomenon is not limited to overt or explicit suggestion; "[e]ven small changes in the  



                                                                                                                                                                                

experimenter's body posture or expression have been shown to affect participants'  



                                                                                                                                                                    117  

                                                                                                                                          

responses," though the witness is often unaware that it is happening. 



                114             See, e.g.           , Jacqueline L. Austin et al.,                                   Double-Blind Lineup Administration:                 



Effects    of    Administrator    Knowledge    on   Eyewitness    Decisions,    in    REFORM                                                                                                            OF  

EYEWITNESS IDENTIFICATION PROCEDURES   139, 139-40 (Brian L. Cutler, ed. 2013).                                                                                                          

                                                                        



                115             Robert Rosenthal & Donald B. Rubin, Interpersonal Expectancy Effects:  

                                                                                                                                                                

 The First 345 Studies, 3 BEHAV. &B                                                   RAIN  SCI. 377, 377 (1978) ("The overall probability                                           

                                                         

that there is no such thing as interpersonal expectancy effects is near zero.").                                                                                                       The court   

of appeals illustrated this phenomenon in                                                              Tegoseak v. State                          with a description of the                            

investigation over a hundred years ago into the arithmetical abilities of a trick horse,                                                                                                        

"Clever Hans," who, it was determined, responded to unwitting visual cues from his                                                                                                                     

master.   221 P.3d 345, 351 n.7 (Alaska App. 2009).                                                          



                116             See  Austin et al., supra  note 114, at 139-42.   "When the administrator  

                                                                                                                                                                              

knows the suspect's identity . . . , the witness may be more likely to choose the suspect  

                                                                                                                                                                                             

regardless of the suspect's guilt."  Id. at 142.  

                                                                                                 



                117             Ryann  M.  Haw  &  Ronald  P.  Fisher,  Effects  of  Administrator-Witness  

                                                                                                                                                        

                                                                                                                                        PPLIED   PSYCHOL. 1106, 1110                              

 Contact on Eyewitness Identification Accuracy, 89 J. A 

                                                                                                                              

(2004);  see also                       id.  at 1107; Steven E. Clark et al.,                                            Lineup Administrator Influences on                                              

Eyewitness Identification Decisions                                                  , 15 J.E         XPERIMENTAL  PSYCHOL.:A                                          PPLIED  63, 72-74   

(2009).  



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----------------------- Page 46-----------------------

                         To   prevent   these   influences   on   the   identification   procedure,   studies  



                                                                             118  

recommend that itbeadministered "blind."                                                                                                              

                                                                                   "Double-blindadministrators do not know  



                                                                                                                                                     

who the actual suspect is.  Blind administrators are aware of that information but shield  



                                                                                                                                                           119  

                                                                                                                                                                  

themselves from knowing where the suspect is located in the lineup or photo array." 



                                                                                                                         120  

                                                                                                                               

                                                 ii.          Pre-identification instructions 



                                                                                                                                                          

                         Was the witness instructed before the identification procedure that the  



                                                                                                                                                   

suspect may or may not be present in the lineup, showup, or array, and that the witness  



                                                                                                                                                          

need not make an identification? A witness's expectation that a lineup will include the  



                                           

suspect may affect the identification's reliability.  Studies attest to the phenomenon of  



                                                                                                                                                        

"relative judgment," in which "the witness seems to be choosing the lineup member who  



             118         See, e.g.      , Clark,       supra  note 117, at 74 (noting, however, that "the lineup                                    



administration can influence the outcome even when blind administrator is used"); Haw                                                                   

& Fisher,          supra  note 117, at 1110-11; Gary L. Wells et al.,                                           Eyewitness Identification   

Procedures: Recommendations for Lineups and Photospreads                                                         , 22 L     AW  &H       UM. B      EHAV.  

                         

603, 627-29 (1998).  



             119  

                                                                                                                                     

                         State  v.  Henderson,  27  A.3d  872,  896  (N.J.  2011).                                                     Double-blind  

administration (where the administrator does not know which subject is the suspect) is                                                                       

                                                                                                                                                            

not always a realistic option due to resource constraints and limited personnel.   In  

                                                                                                                                                            

Henderson, the New Jersey Supreme Court took note of the "envelope method," in  

                                                                                                                                                         

which "an officer who knows the suspect's identity places single lineup photographs into  

                                                                                                                                                    

different envelopes, shuffles them, and presents them to the witness." Id. at 897. During  

                                                                                                                                                           

the witness's deliberations, "[t]he officer/administrator then refrains from looking at the  

                                                                                                                                 

envelopes or pictures while the witness makes an identification."  Id.  



             120         See State v. Lawson, 291 P.3d 673, 706 (Or. 2012) (en banc) ("Studies  

                                                                                                                                               

show that the likelihood of misidentification is significantly decreased" when witnesses  

                                                                                                                                               

are given such instructions and "[t]here appears to be little downside to giving [them].");  

                                                                                                                                              

see also Henderson, 27 A.3d at 897.  

                                                            



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----------------------- Page 47-----------------------

                                                                                                                                                                                                   121  

most    resembles    the    witness['s]    memory    relative    to    other    lineup    members."                                                                                                       



                                                                                                                                                                                    

Accordingly, studies show that misidentification is less likely if the witness is informed  



                                                                                                                                                                                  

that the suspect might not be in the lineup.  For example, two meta-analyses compared  



                                                                                                                                                                             

the effect of different instructions in lineups in which the perpetrator was present and  



                                                                  122  

                                                                                                                                                                                       

lineups in which he was not.                                              Both studies concluded that failing to inform a witness  



                                                                                                                                                                                                    

that the perpetrator might not be present, when the perpetrator in fact was not, led to  



                                                                                                                                                                                               

more incorrect identifications; that is, a witness tended to select the person who best  



                                                                                                    123  

                                                                                                                                                                                                 

resembled the one in the witness's memory.                                                                  By contrast, one of the studies found that  



                121            Gary L. Wells,   The Psychology of Lineup Identifications                                                                             , 14 J. A           PPLIED  



             

 SOC. PSYCHOL. 89, 92 (1984) (emphasis in original);                                                                     see also            Nancy K. Steblay,                          Lineup  

Instructions,  in  REFORM OF                                    EYEWITNESS  IDENTIFICATION  PROCEDURES  65, 74 (Brian L.                                                                            

Cutler ed., 2013) (summarizing studies) ("One well-documented secondary strategy [of                                                                                                               

identification] is                     relative judgment                        , that is, the comparison of lineup members with one                                                             

another to select the one who looks most like the offender relative to the other lineup                                                                                                   

members." (citing Wells,                                   The Psychology of Lineup Identifications                                                         ,  supra)).  



                122            A "meta-analysis" is "a synthesis of all obtainable data collected  in a  

                                                                                                                                                                                                      

specified topical area."   Roy S. Malpass et al.,  The Need for Expert Psychological  

                                                                                                                                                                       

 Testimony on Eyewitness Identification, in EXPERT  TESTIMONY ON THE                                                                                              PSYCHOLOGY OF   

                                                                                                   

EYEWITNESS IDENTIFICATION 3, 15 (Brian L. Cutler ed., 2009).                                                                       

                                                                      



                123  

                                                                                                                                                                                        

                               See  Steven E. Clark, A Re-Examination of the Effects of Biased Lineup  

Instructions in Eyewitness Identification                                                    , 29 L       AW  & H            UM. B        EHAV. 395, 396-97 (2005);                     

Nancy   Mehrkens   Steblay,   Social   Influence   in   Eyewitness   Recall:   A   Meta-Analytic  

Review   of   Lineup   Instruction   Effects,   21   LAW   &   HUM.    BEHAV.   283,   294   (1997)  

(summarizing studies and stating that "the available data support the hypothesis that                                                                                                           

biased instructions significantly affect eyewitness lineup identification performance").                                                                                                                   

The United States Department of Justice made a suggestion for similar instructions in its                                                                                                           

                                                                      EP 'T OF           JUSTICE, N                AT 'L   INST . O              F  JUSTICE, E                YEWITNESS  

 1999 research report.                               U.S. D 

EVIDENCE : A GUIDE  FOR  LAW  ENFORCEMENT  32   (1999)   [hereinafter  EYEWITNESS  

                                                                                                                  

EVIDENCE];  see  also  Tegoseak  v.  State,  221  P.3d  345,  358  (Alaska  App.  2009)  

                                                                                                                                                                                          

("[Witnesses] tend to select the person who looks most like their memory of the culprit,  

                                                                                                                                                                                         

even when none of the photos matches their memory exactly.").  

                                                                                                                             



                                                                                                -47-                                                                                         7110
  


----------------------- Page 48-----------------------

instructing witnesses that the lineup might not contain the perpetrator had "minimal                                                                   



                                                                                                                   124  

effect" on identifications when the perpetrator                                            was  present;                                                         

                                                                                                                         the other found that such  



                                                                                                                                     125  

                                                                                                                                                           

instructions  increased  correct  identifications  of  the  perpetrator.                                                                       Both  studies  



                                                                                                                                                               

emphasized the context of the latter finding:  in the real world, the police may not know  



                                               

whether a suspect is in fact the perpetrator, and the identification will be affected by a  



                                            126                                                                                                                      127  

                                                                                                                                           

host of other variables.                          Accordingly, "no good can come from biased instructions." 



                                                                                                                                     

                                                    iii.	        The          composition                   of      lineups            and  

                                                                                                            128  

                                                                                               

                                                                 photographic arrays 



                                                                                                                                                                           

                           Were there at least five subjects in the lineup or array besides the suspect?  



                                                                                                                                                                   

Did the suspect stand out in any way from the "fillers"?  Lineups and photo arrays can  



                                                                                                                                                                      

be  constructed  in  ways  that  affect  their  reliability.                                                 Most  obviously,  reliability  is  



                                                                                                                                                                   

compromised if the suspect noticeably stands out from the "fillers" who make up the rest  



                         129  

             

of the group.                                                                                                                                              

                                As a compounding factor, a lineup that suggests a result to the witness  



             124	         Steblay,  supra  note 123, at 288-89.                  



             125	         Clark,  supra  note 123, at 418.                   



             126	         Clark,  supra  note 123, at 420; Steblay,                                    supra  note 123, at 295-96.           



             127	         Clark,  supra  note 123, at 420.                   



             128          See State v. Lawson                   , 291 P.3d 673, 686 (Or. 2012) (en banc) ("The known-                                      



innocent subjects used as lineup fillers should be selected first on the basis of their                                                                         

physical similarity with the witness's description of the perpetrator; if no description of  

                                                                                                                                                                      

a particular feature is available, then the lineup fillers should be chosen based on their  

                                                                                                                                                                

similarity to the suspect."); see also State v. Henderson, 27 A.3d 872, 897-99 (N.J.  

2011).  



             129          Roy S. Malpass et al., Lineup Construction and Lineup Fairness,  in 2  

                                                                                                                                                                       

HANDBOOK OF                   EYEWITNESS  PSYCHOLOGY: M                                   EMORY FOR               PEOPLE   155, 156 (Rod C.L.                    

Lindsay   et   al.   eds.,   2007)   ("Decades   of   empirical   research   suggest   that   mistaken  

                                                                                                                                               (continued...)  



                                                                                 -48-	                                                                          7110
  


----------------------- Page 49-----------------------

may   artificially   inflate   the   witness's   confidence   in   the   identification   because   of   its  



                                 130  

apparent ease.                          



                               Courts also conclude, based on the research, that lineups or arrays should  

                                                                                                                                                                                       



include  a  minimum number  of  "fillers"  in  order  to  ensure  an  adequate  test  of  the  

                                                                                                                                                                                              



witness's  recall  and  to  reduce  the  chance  that  an  identification  is  the  result  of  

                                                                                                                                                                                                

guesswork.131                        Although  there  is  no  "magic  number"  of  fillers,132                                                                       many  sources  

                                                                                                                                                                                   

recommend a minimum of five per single suspect.133 By the same logic and to reduce the  

                                                                                                                                                                                               



possibility that a witness will err by guessing, each lineup or photo array should include  

                                                                                                                                                                                     

only one suspect.134  

                      



(...continued)
  

                                                                                                                                                                                                   

eyewitness identifications are more likely to occur when the suspect stands out in a
  

lineup.").
  



                130            See David F. Ross et al., When Accurate and Inaccurate Eyewitnesses Look  

                                                                                                                                                                                           

the Same: A Limitation of the 'Pop-Out' Effect and the 10- to  12-Second Rule, 21  

                                                                                                                                                                                                

APPLIED   COGNITIVE   PSYCHOL. 677, 687 (2007); Gary L. Wells & Amy L. Bradfield,                                                                                              

Measuring theGoodness of                                      Lineups: ParameterEstimation,                                            QuestionEffects,andLimits                         

to the Mock Witness Paradigm                                          , 13 A       PPLIED  COGNITIVE  PSYCHOL. S27, S30 (1999) ("In                                                          

short, the task of making an identification from a biased lineup probably appears to be                                                                                                          

an easy one, thereby leading the eyewitnesses to be more confident in their decision even                                                                                                   

while being more likely to make an error.").                                       



                131            See Henderson, 27 A.3d at 898.  

                                                                                                          



                132            See id. (quoting testimony from Dr. Gary L. Wells).  

                                                                                                                                     



                133            See Roy S. Malpass et al., supra note 129, at 157-58; see also EYEWITNESS  

                                                                                                                                                                         

EVIDENCE,  supra note 123, at 29.   In Young's case, an investigating detective testified                                                                                           

that photo                arrays,   in  his experience,                                 generally   include "five other                                        people that look            

basically like [the suspect]."                                      



                134            EYEWITNESS  EVIDENCE,  supra  note 123, at 29.                                                              



                                                                                              -49-                                                                                        7110
  


----------------------- Page 50-----------------------

                                             Thereis                     significant debateabout                                                         thedesirability                                   ofsequential identification                  



procedures - where suspects are viewed one at a time - as opposed to simultaneous                                                                                                                      



 identification procedures, like lineups and photo arrays, where suspects are viewed as a                                                                                                                                                                                                       

                         135          Some scholars believe that the sequential procedure reduces the impact of  

 group.                                                                                                                                                                                                                                                                                     

 "relative  judgment,"  thereby  increasing  accuracy.136                                                                                                                                         Others  find  this  conclusion  

                                                                                                                                                                                                                                                             

premature.137                                     Current research on simultaneous versus sequential procedures seems  

                                                                                                                                                                                                                                                                              



 insufficient to preclude either.  

                                                                                                        



                       135                   The State points to this difference in its arguments that the science of                                                                                                                                                                       



 eyewitness identifications is inconclusive.                                                                                                    



                       136                   See, e.g., Nancy Steblay et al., Eyewitness Accuracy Rates in Sequential  

                                                                                                                                                                                                                                                                

and Simultaneous Lineup Presentations: A Meta-Analytic Comparison, 25 LAW &H                                                                                                                                                                                                           UM.  

                                                                                                                                                                                                                                                         

BEHAV. 457, 459-60, 462-64, 468 (2001).                                                                              



                       137  

                                                                                                                                                                                                                                                                                           

                                             See, e.g., Roy S. Malpass et al., Public Policy and Sequential Lineups, 14  

LEGAL   &   CRIMINOLOGICAL   PSYCHOL.   1,   11  (2009)   ("Attempts   to   find   alternative  

technologies are laudable, and the work on the sequential lineup is pioneering. However,    

research has not shown it to be better than what it intends to replace."); Laura Mickes et                                                                                                                                                                                                    

 al.,  Receiver Operating Characteristic Analysis of Eyewitness Memory: Comparing the                                                                                                                                                                                                     

Diagnostic Accuracy of Simultaneous Versus Sequential Lineups                                                                                                                                                              , 18 J. E                 XPERIMENTAL  

PSYCHOL.: APPLIED  361, 374-75 (2012) (observing that some initial evidence "suggests                                                                                                                                                                               

                                      

that switching fromthesimultaneous lineup procedureto the sequential lineup procedure                                                                                                                                                                              

may be moving in the wrong direction [and] [o]nly time will tell whether this ends up                                                                                                                                                                                                      

being the typical empirical result"); .                                                                                   



                                                                                                                                            -50-                                                                                                                                   7110
  


----------------------- Page 51-----------------------

                                                                              iv.                Feedback and recording confidence                                                                            138  



                                                                                                                                                                                                                   

                                        What feedback, if any, did the witness receive about the identification  



                                                                                                                                                                                                                                                 

procedure from the administrator?   What expressions of confidence, if any, did the  



                                                                                                                                                                                                                                                

 witness make at the time of the identification? An administrator's unconscious cues risk  



                                                                                                                                                                                                                                    

 influencing an eyewitness identification after as well as before the witness has selected  



                                                                                                                                                                                                                                                              

 a suspect. Witnesses who receive confirmatory feedback express "significantly more . . .  



                                                                                                                                                                                                                                                    139  

                                                                                                                                                                                                                     

 confidence in their decision compared with participants who received no feedback," 



                                                                                                                                                                                                                                     

 and such feedback can lead witnesses to "significantly inflate their reports to suggest  



                                                                                                                                                                                                                                                  

 better witnessing conditions at the time of the crime, stronger memory at the time of the  

 lineup, and sharper memory abilities in general."140  Studies suggest that confirmatory  



                    138                See State v. Henderson                                             , 27 A.3d 872, 899-900 (N.J. 2011) (observing that                                                                                    



 because   of   the   malleability   of   an   eyewitness's   confidence   level   and   the   effect   that  

 feedback   can   have   on   reliability,  it   is   good   practice   for   the   administrator   of   an  

 identification procedure to make an immediate record of any expression of confidence                                                                                                                                      

 by the witness before giving the witness any feedback);                                                                                                         State v. Lawson                                , 291 P.3d 673,               

 687 (Or. 2012) (en banc).                                                   



                    139                    Amy  Bradfield  Douglass  &  Nancy  Steblay,  Memory  Distortion  in  

                                                                                                                                                                                                                 

 Eyewitnesses: A Meta-Analysis of the Post-Identification Feedback Effect, 20 APPLIED  

                                                                                                                                                                                                                                  

 COGNITIVE  PSYCHOL. 859, 863 (2006).                                                        



                    140  

                                                                                                                                                                                                                                               

                                       Id. at 864-65; see also  Gary L. Wells & Amy L. Bradfield,  "Good, You  

 Identified   the   Suspect":   Feedback   to   Eyewitnesses   Distorts   Their   Reports   of   the  

                                                                                                PPLIED   PSYCHOL.   360,   374   (1998)   ("A   confirming- 

  Witnessing  Experience,  83  J. A 

 feedbackremarknotonlyinflateseyewitnesses' recollectionsofhowconfident                                                                                                                                                        they were  

 at the time, it also leads them to report that they had a better view of the culprit, that they                                                                                                                                               

 could make out details of the face, that they were able to easily and quickly pick him out                                                                                                                                                       

 of a lineup, that his face just 'popped out' to them, that their memorial image of the                                                                                                                                                          

 gunman is particularly clear, and that they are adept at recognizing faces of strangers.");                                                                                                                            

 IDENTIFYING   THE   CULPRIT,  supra   note   81,   at   91   ("The   nature   of   law   enforcement  

 interactions with the eyewitness before, during, and after the identification plays a role                                                                                                                                                   

 in the accuracy of eyewitness identifications and in the confidence expressed in the                                                                                                                                                            

                                                                                                                                                                                                                    (continued...)  



                                                                                                                        -51-                                                                                                                 7110
  


----------------------- Page 52-----------------------

                                                                                                                                                    141  

feedback has an effect even when it comes 48 hours after an identification,                                                                              and the   

effect is powerful across other variables.                                     142  



                                                    v.           Showups143  



                                                                                                                                     

                           Was the witness identified in a showup?  A "showup" is an identification  



                                                                                                                                                           

procedure in which a witness is presented with a single suspect and asked if the suspect  



                                                                            144  

                                                                                                                                                                     

is the person who committed the crime.                                             Alaska courts have long restricted the use of  



                                                                                                                                                                 

showups   as   an   identification   procedure   to   where   it   is   necessary   under   the  



                             145  

                                                                                                                                                                  

circumstances.                      The problems with showups are apparent:  in contrast to lineups and  



(...continued)  

                                                                                                                                                       

accuracy of those identifications by witnesses."); see also Tegoseak v. State, 221 P.3d  

                                                                                                                                                  

345, 356-57 (Alaska App. 2009) (discussing how "the comments of a police investigator  

                                                                                                                                                                   

can alter a witness's perception or memory," specifically how long they viewed the  

                                                                                                                                                              

perpetrator, how good their view was, how closely they paid attention, and even "their  

                                                                                                                                                   

recollection of their degree of certainty" at the time of the crime (emphasis omitted)).  



             141          Gary  L.  Wells  et  al.,  Distorted  Retrospective  Eyewitness  Reports  as  

                                                                                                                                                                   

                                                                                 XPERIMENTAL  PSYCHOL.: A                              PPLIED  42, 49-50   

Functions of Feedback and Delay, 9 J. E 

                                                        

(2003).  



             142          See Jeffrey S. Neuschatz et al., The Effects of Post-Identification Feedback  

                                                                                                                                                      

and Age on Retrospective Eyewitness Memory, 19 APPLIED  COGNITIVE  PSYCHOL. 435,   

                                                                                             

449 (2005) (describing study in which "the post-identification feedback effect did not                                                                            

vary with age or retention interval, which indicates how powerful the effect truly is").                                                                        



             143          See  Lawson,  291  P.3d  at  707-08  ("Showups  are  widely  regarded  as  

                                                                                                                                                                    

inherently suggestive - and therefore less reliable than properly administered lineup  

                                                                                                                                                            

identifications - because the witness is always aware of who police officers have  

                                                                                                                                                               

targeted as a suspect," though "some research indicates that, when conducted properly  

                                                                                                                                                        

and within a limited time period immediately following an incident, showups can be  

                                                                                                                                                                    

equally as reliable as lineups."); see also Henderson, 27 A.3d at 902-03.  

                                                                                                                                               



             144          See Anderson v. State, 123 P.3d 1110, 1112 (Alaska App. 2005).  

                                                                                                                                                          



             145          See,  e.g., Howe  v.  State,  611  P.2d  16,  17-18  (Alaska  1980); see  also  

                                                                                                                                                                

                                                                                                                                              (continued...)  



                                                                                -52-                                                                           7110
  


----------------------- Page 53-----------------------

photo arrays, which allow a witness with a faulty memory to pick someone other than   



                                                                                                                                                   146  

the suspect, every positive identification in a showup implicates the suspect.                                                                           Showups  



                                                                                                                                                                       

seemingly  provide  little  protection  against  witnesses  who  are  inclined  to  guess,  as  



                                                                                                                                                                       147  

                                                                                                                                                                              

                                                                                                                                                     

witnesses participating in  showups tend  to  base their identifications on  clothing. 



Research shows that an innocent suspect who resembles the actual perpetrator is more  

                                                                                             

likely to be incorrectly identified in a showup than in a lineup.148  

                                                                                                              



                           Showups can be reliable when they are conducted immediately after a  

                                                                                                                                                                         



crime, when the witness's memory is freshest; but research shows that the likelihood of  

                                                                                                                                                                        



a misidentification increases significantly with showups as little as two hours after the  

                                                                                                                                                                      

event.149  



(...continued)  

                                                                                                                                                                     

Anderson ,  123  P.3d  at  1116-17  ("As  courts  have  frequently  noted,  show-ups  are  

                                                                                                                                                              

inherently suggestive. . . . [But] in cases where a show-up is necessary, these factors  

                                                                                                                                                                      

 [indicating suggestiveness] do not, by themselves, make that show-up a violation of the  

                                                                                                 

suspect's rights under the due process clause.").  



              146          See  Lawson,  291  P.3d  at  707-08  ("[B]ecause  showups  involve  a  lone  

                                                                                                                                                                   

suspect,  every  witness  who  guesses  will  positively  identify  the  suspect,  and  every  

                                                                                                                                                                

positive identification is regarded as a 'hit.' For that reason, misidentifications that occur  

                                                                                                                                                                 

in showups are less likely to be discovered as mistakes.").  

                                                                                            



              147          See Jennifer E. Dysart et al., Show-ups: The Critical Issue of Clothing Bias,  

                                                                                                                                                                  

20 APPLIED  COGNITIVE  PSYCHOL. 1009, 1019-21 (2006);                                                            see also         Nancy Steblay et al.,               

       

Eyewitness   Accuracy   Rates   in   Police   Showup   and   Lineup   Presentations:   A   Meta- 

Analytic Comparison                        , 27 L     AW  & H         UM. B       EHAV. 523, 538 (2003).           



              148          Steblay et al.,            supra  note 147 at 536-37.           



              149          See   A. Daniel Yarmey et al.,                              Accuracy of Eyewitness Identifications in                                       



Showups and Lineups                          , 20 L       AW   & H         UM. B       EHAV. 459, 464-65 (1996) ("[A]fter [two                                    

hours] a one-person lineup was four times as likely to lead to a false identification of the                                                                          

innocent suspect than if that same suspect was in a six-person lineup . . . .").                                                                



                                                                                  -53-                                                                           7110
  


----------------------- Page 54-----------------------

                                                        vi.           Multiple viewings                       150  



                                                                                                                                                                      

                             Was the witness exposed to the suspect after the crime but before making  



                                      151  

                                                                                                                                                                                       

the identification?                         Did the witness fail to identify the suspect in an earlier procedure?  



                                                                                                                                                                           

The reliability of an identification may suffer if the witness has viewed the suspect more  



                                                                                                                                                                 

than  once  during  the  investigation.                                          This  concern  arises  in  part  because  witnesses  



                                                                                                                                                                                

struggle to determine whether their memory comes from their original observation of the  



                                                                                                                                                                     

perpetrator  or  a  later  one.                              Studies  describe  this  as  "source  confusion"  or  "source  



                                       152  

                                                                                                                    

monitoring" error.                            It arises in a number of different contexts.  



                                                                                                                                                               

                            For example, "mugshot exposure" occurs when a witness is repeatedly  



                                                                                                                                                                               

exposed to a suspect's photograph.  The witness may fail to identify the suspect on the  



                                                                                                                                                                          

first presentation but on the second will recognize the photo; including the same photo  

                                                                                                                                            153   A similar effect,  

                                                                                                                                                                         

                                                                                                        

in a second presentation can thus raise the risk of misidentification. 



"mugshot commitment," occurs when a witness identifies a suspect from a photograph  

                                                                                                                                                             



and the same photograph is included in a later identification procedure; studies show that  

                                                                                                                                                                              



              150           See State v. Henderson                          , 27 A.3d 872, 900-01 (N.J. 2011) (holding that due                                               



to the negative effects that can result from multiple viewings, "law enforcement officials                                                                           

should attempt to shield witnesses from viewing suspects or fillers more than once");                                                                                 

Lawson, 291 P.3d at 686-87.                                   



              151           It is only exposure through state action that would constitute a "system  

                                                                                                                                                                   

variable" for purposes of the trial court's analysis of admissibility.  Other exposures  

                                                                                                                                                                

would be "estimator variables."  

                                             



              152           E.g.,   Kenneth  A.   Deffenbacher   et  al.,  Mugshot  Exposure  Effects:  

                                                                                                                                                                   

Retroactive Interference, Mugshot Commitment, Source Confusion, and Unconscious  

                                                                                                                                                          

 Transference, 30 LAW  & H                               UM. B        EHAV. 287, 289 (2006).            

                                      



              153  

                                         

                            Id. at 299.  



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----------------------- Page 55-----------------------

in this circumstance the witness is more likely to remain "committed" to the suspect                                                                                                                 

originally selected even if the identification was incorrect.                                                                                    154  



                                                                             

                                                  Estimator Variables  

                                                                   i.              Stress155  



                                                                                                                                                                                                

                                 Did   the   witness   view   the   perpetrator   under   particularly   stressful  



                                                                                                                                                                                                                

conditions?   Stress is one of the so-called "estimator variables" - variables that are  



                                                                                                                                                                                                                  

intrinsic to the event or the witness and not subject to later manipulation.  The level of  



                                                                                                                                                                                                           

 stress a witness experiences at the time of the crime may affect the accuracy of a later  

                                   156  Whilethescienceshows that moderatelevels of stress can help improve  

identification.                                                                                                                                                                                    



accuracy of perception, it also shows that high levels of stress can negatively affect the  

                                                                                                                                                                                                                



accuracy of both the witness's identification of the suspect and the witness's memory of  

                                                                                                                                                                                                                   

other  details  of  the  crime.157                                             Acknowledging  the "negative  effect  of  stress  on  the  

                                                                                                                                                                                                               



                 154             See   id.   at   290-91;   Gunter   Koehnken   et   al.,   Forensic   Applications   of  



Line-Up Research                              ,  in  PSYCHOLOGICAL  ISSUES IN                                            EYEWITNESS  IDENTIFICATION  205, 219   

(Siegfried Ludwig Sporer et al. eds., 1996).                                                 



                 155             See Henderson, 27 A.3d at 904 ("[H]igh levels of stress are likely to affect  

                                                                                                                                                                                                          

the  reliability  of  eyewitness  identifications.                                                                   There  is  no  precise  measure  for  what  

                                                                                                                                                                                                           

constitutes  'high'  stress,  which  must  be  assessed  based  on  the  facts  presented  in  

                                                                                                                                                                                                                 

individual cases."); Lawson, 291 P.3d at 687.  

                                                                                                       



                 156             See, e.g., IDENTIFYING THE                                         CULPRIT,  supra  note 81, at 94 ("High levels of                                                               

                                                         

 stress or fear can affect eyewitness identification. . . .                                                                        Under conditions of high stress,  

a witness' ability to identify key characteristics of an individual's face (e.g., hair length,                                                                                                         

hair   color,   eye   color,   shape   of   face,   presence   of   facial   hair)  may  be   significantly  

impaired.").  



                 157             Kenneth A. Deffenbacher et al., A Meta-Analytic Review of the Effects of  

                                                                                                                                                                                       

High Stress on Eyewitness Memory, 28 LAW   & H                                                                                  UM. B           EHAV. 687, 699, 703 (2004)                            

                                                                                                       

(finding "considerable support for the hypothesis that high levels of stress negatively                                                                                                      

impact both accuracy of eyewitness identification as well as accuracy of recall of crime-                                                                                                               

                                                                                                                                                                                      (continued...)  



                                                                                                       -55-                                                                                                7110
  


----------------------- Page 56-----------------------

reliability  of   eyewitness   identifications"   may   help   jurors   counteract   the   "common  



misconception  that  faces   seen   in   highly   stressful   situations   can   be   'burned   into'   a  

witness's memory."                              158  



                                                                                                                     159  

                                                                                                        

                                                               ii.             Weapons focus 



                                                                                                                                                                                                      

                                Was a weapon, or another unusual or distracting object, visible during the  



                                                                                                                                                                                                          

time the witness was viewing the perpetrator?  When an extraordinary detail captures a  



                                                                                                                                                                           

witness's attention, the witness's ability to perceive other details may be compromised,  



                                                                                                              160  

                                                                                                                                                                                                      

undermining the reliability of an identification.                                                                    The "weapons focus effect" is one "in  



                                                                                                                                                                                                    

which witnesses who observe a criminal with a visible weapon tend to remember less  



                                                                                                                                                                                                     

about  the  criminal's  physical  features  and  clothing  than  do  witnesses  who  see  the  



(...continued)  

                                                                                                                                                                                                     

related details"); Charles A. Morgan III et al., Accuracy of Eyewitness Memory for  

                                                                                                                                                                               NT 'L   J.L.   &  

Persons  Encountered  During  Exposure  to  Highly  Intense  Stress,  27  I 

PSYCHIATRY  265, 274-75 (2004) (finding that data "provide[d] robust evidence that                                                                                                                  

eyewitness memory for persons encountered during events that are personally relevant,                                                                                                   

highly   stressful,   and   realistic   in   nature   may   be   subject   to   substantial   error");   see  

 Tegoseak v. State                         , 221 P.3d 345, 355 (Alaska App. 2009) ("[T]he 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 [the witness] observed the events.").                                                                                           



                158            Lawson, 291 P.3d at 701.  

                                                                                  



                159             See Henderson, 27 A.3d at 904-05 ("When a visible weapon is used during  

                                                                                                                                                                                              

a crime, it can distract a witness and draw his or her attention away from the culprit.");  

                                                                                                                                                                                      

see also Commonwealth v. Gomes, 22 N.E.3d 897, 920 & n.7 (Mass. 2015).  

                                                                                                                                                                     



                160             See   Gary  L.  Wells  &  Deah  S.   Quinlivan,  Suggestive   Eyewitness  

                                                                                                                                                                                

Identification  Procedures  and  the  Supreme  Court's  Reliability  Test  in  Light  of  

                                                                                                                                                                                                      

Eyewitness Science: 30 Years Later, 33 LAW  & H                                                                     UM. B         EHAV. 1, 10-12 (2009);                                 see also   

                                                                                              

IDENTIFYING THE                           CULPRIT,  supra  note 81, at 93 ("The presence of an unusual object at                                                                                         

the scene of a crime can impair visual perception and memory of key features of the                                                                                                                  

crime event.").   



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----------------------- Page 57-----------------------

                                                                                                                      161  

criminal either empty-handed or with a neutral object."                                                                     While the effect may be small,                       



                                                                     162  

one study found it noteworthy.                                                                                                                                        

                                                                              The weapons focus effect may interact with other  



                                                                                                                                                                

variables, such as a short duration of view (addressed below), to make an identification  

                                       163   And studies demonstrate that even objects that are nonthreatening  

                                                                                                                                                            

                      

even less reliable. 

but incongruous - such as a stalk of celery - can have the same distracting effect.164  

                                                                                                                                                                          



                                                                                                                165  

                                                                                                                       

                                                                                                      

                                                          iii.           Duration of view 



                             How long was the witness able to see the perpetrator? While there is no  

                                                                                                                                                                                        



minimum amount of time necessary for a witness's observation of a suspect to result in  

                                                                                                                                                                                         



an  accurate  identification,  longer  viewings  are  more  likely  to  lead  to  accurate  

                                                                                                                                                                         

identifications.166   Relatedly, however, studies show that witnesses tend to overestimate  

                                                                                                                                                                  



               161           Kerri L. Pickel,                     Remembering and Identifying Menacing Perpetrators:                                           



Exposure to Violence and the Weapon Focus Effect                                                                  ,  in  2 H       ANDBOOK OF                    EYEWITNESS  

PSYCHOLOGY: MEMORY FOR PEOPLE 339, 347-53 (Rod C.L. Lindsay et al. eds., 2007).                                                                                                

                                                                                  



               162           See   Nancy Mehrkens Steblay,                                        A Meta-Analytic Review of the Weapon                                     



Focus Effect, 16 LAW   & H                                   UM. B         EHAV. 413, 415-17, 420-21 (1992) (noting average                                                 

                

decrease in accuracy of about 10% in weapon-present conditions over weapon-absent                                                                           

conditions).  



               163           See id.  at 421 ("[S]ituations in which a witness observes a threatening  

                                                                                                                                                                    

object play a central role in an event of short duration.").  

                                                                                                    



               164           See Pickel, supra note 161, at 353-54 (discussing studies).  

                                                                                                                                           



               165           See State v. Lawson, 291 P.3d 673, 687 (Or. 2012) (en banc) ("Longer  

                                                                                                                                                                         

durations of exposure (time spent looking at the perpetrator) generally result in more  

                                                                                                                                                              

accurate identifications."); see also State v. Henderson, 27 A.3d 872, 905 (N.J. 2011).  

                                                                                                                                                                               



               166           See IDENTIFYING THE                             CULPRIT,  supra  note 81, at 97-98 (noting that meta-                                               

                                       

analyses"havefound                             that relatively longexposuredurations producegreater                                                                 accuracy");  

                                                                                                                                 NCYCLOPEDIA   OF   APPLIED  

Colin   Tredoux   et   al.,   Eyewitness   Identification,   in   1   E 

PSYCHOL. 875, 877 (Charles Spielberger ed., 2004) ("The duration of the witness's                                                                                       

exposure to the offender is related to later recognition performance, such that limiting                                                                                    

                                                                                                                                                                (continued...)  



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----------------------- Page 58-----------------------

the amount of time they had to view an incident, especially if conditions were stressful                                                                                       

or involved other stimuli.                               167  



                                                                                                                                                           168  

                                                                                                                                                

                                                            iv.           Environmental conditions of view 



                                                                                                                                                        

                              What environmental conditions, such as distance and lighting, may have  



                                                                                                                                                                                    

affected the witness's ability to view the perpetrator?  Environmental conditions under  



                                                                                                                                                                                                   

which a witness views a perpetrator have an effect on the reliability of the identification.  



                                                                                                                                                                                       

For example, a witness's identification will be less reliable when the perpetrator is seen  



                                                                                                                                                                                     

from farther away or under worse lighting conditions; studies have examined these  



                 169  

                                                                                                                                                                                            

effects.                  People have difficulty estimating distances, which  makes self-reports of  



                                                                  170  

                                                                                                                                                                                               

proximity somewhat suspect.                                              Other factors, such as weather conditions, can affect a  



                                                                                                                                                                                 

witness's ability to perceive. And as with other variables, environmental factors interact  



                                                                                                                                                                     

with others: for example, studies demonstrate that witnesses who received confirmatory  



(...continued)
  

                                                                                            

exposure time generally reduces witness accuracy.").
  



               167            See  Elizabeth F. Loftus et al.,                                  Time Went by So Slowly: Overestimation of                                                    



Event Duration by Males and Females, 1 APPLIED COGNITIVE  PSYCHOL.3, 10-12 (1987);                                                                                               

                                                                                          

A.  Daniel Yarmey,                        RetrospectiveDuration                                Estimations forVariantand                                    Invariant Events   

in Field Situations                       , 14 A       PPLIED  COGNITIVE  PSYCHOL. 45, 52-53 (2000).                                            



               168            See Lawson                 , 291 P.3d at 687 ("The basic environmental conditions of                                                



distance and lighting, combined with any aspect of the viewing environment - fog,                                                                                                       

heavy rain or other weather conditions, cracked or dirty windows, glare, reflection,  

                                                                                                                                                                          

shadow,   or   even   physical   obstructions   within   the   witness's   line   of   sight   -   can  

potentially impair an eyewitness's ability to clearly view an event or a perpetrator.");                                                                                                  see  

also Henderson, 27 A.3d at 906.  

                                                                



               169            See,  e.g.,  R.C.L.  Lindsay  et  al.,  How  Variations  in  Distance  Affect  

                                                                                                                                                                                   

Eyewitness Reports and Identification Accuracy, 32 LAW  & H                                                                             UM. B         EHAV. 526, 526-28,        

                                                                                                                    

532-35 (2008).   



               170            Id. at 533.  

                                           



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----------------------- Page 59-----------------------

 feedback may report that the viewing conditions were more favorable than they actually                                                                                                                                                           



were, meaning that                                         self-reporting may becomeboth moreconfidentand less reliable over                                                                                                                                 

time.171  



                                                                                                                                                                                   172  

                                                                                                                                   

                                                                                  v.                   Witness characteristics 



                                                                                                                                                                                                                                                 

                                          Were there any characteristics of the witness, such as mental and physical  



                                                                                                                                                                                                                                              

health, age, vision, or alcohol or drug use, that may have compromised the witness's  



                                                                                                                                                                                                                              

ability to see and identify the perpetrator?  The witness's own personal characteristics  



                                                                                                                                                                                                                                                        

 affect the accuracy of an identification. Physical and mental condition and visual acuity  



                                                                                                                                                                                                                                  173  

                                                                                                                                                                                                                                                                   

 are relevant, but there are other factors as well, such as alcohol impairment                                                                                                                                                            and age -  



                                                                                                                                            174  

                                                                                                                       

 especially for the elderly and the very young. 



                     171                 See  Wells & Bradfield,                                                  supra  note 140, at 372-75.                               



                     172                 See   Lawson,   291   P.3d   at   687   ("Although   different   witnesses   and   fact  



patterns may implicate different variables, some common variables that affect the ability  

                                                                                                                                                                                                                                                       

to perceive and remember include visual acuity, physical and mental condition (illness,                                                                                                                                                            

injury, intoxication, or fatigue), and age.");                                                                                        see also Henderson                                            , 27 A.3d at 906.                     



                     173                 See Jennifer E. Dysart et al., The Intoxicated Witness: Effects of Alcohol on  

                                                                                                                                                                                                                                                                   

                                                                                                                                                           PPLIED   PSYCHOL.   170,   174   (2002)  

Identification  Accuracy  from  Showups,  87  J.  A 

                                                                                               

 (finding, perhaps not surprisingly, that intoxicated witnesses were "more likely than                                                                                                                                                                      

 sober [witnesses] to make a false identification from a target-absent showup").                                                                                                                                   



                     174                 See James C. Bartlett & Amina Memon, Eyewitness Memory in Young and  

                                                                                                                                                                                                                                                               

 Older Adults, in 2 HANDBOOK OF  EYEWITNESS  PSYCHOLOGY:M                                                                                                                                        EMORY FOR PEOPLE  309,  

                                                     

 332-34 (Rod C.L. Lindsay et al. eds., 2007) (explaining that though older eyewitnesses                                                                                                                                           

generally have less accurate identifications, the effect may be absent, or even reversed,                                                                                                                                                     

 for highly educated and verbally skilled seniors or those under the age of 70); Joanna D.                                                                                                                                                                         

Pozzulo   &   R.C.L.   Lindsay,   Identification   Accuracy   of   Children   Versus   Adults:   A  

Meta-Analysis, 22 L                                            AW  & H                   UM. B              EHAV. 549, 563-65 (1998).                                                             Research also suggests                        

that the relative ages of the witness and the                                                                                        target  of the identification may also matter,                                                                  

 finding that young witnesses are better at identifying young targets than older targets.                                                                                                                                                                                   

Bartlett   &   Memom,   supra,   at   321-26;   Melissa   Boyce   et   al.,   Belief   of   Eyewitness  

                                                                                                                                                                                                                                  (continued...)  



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                                                           vi.           Perpetrator characteristics                                     175  



                                                                                                                                                                                        

                              Was the perpetrator disguised or otherwise difficult to describe?  Has the  



                                                                                                                                                                      

suspect's appearance changed since the crime?  The characteristics of the perpetrator  



                                                                                                                                                                      

also affect the reliability of eyewitness identification. Witnesses are better at identifying  



                                                                                                                                       176  

                                                                                                                                                                              

individuals with distinctive facial features than those without.                                                                              As one would expect,  



                                                                                                                                              177  

                                                                                                                                                                      

studies show that disguises reduce the accuracy of identifications.                                                                                  Masks, sunglasses,  



                                                                                                                                                                                          

hats, hoods, and other things that hide the hair and hairline affect witnesses' ability to  



                                                                      178  

                                                                                                                                                                            

accuratelyidentify aperpetrator.                                             Andchangesin theperpetrator'sappearancebetween  



                                                                                                                                                                          

the time of the incident and the time of the identification (growing a beard, for example)  



                                       179  

                                               

may do the same. 



(...continued)  

                                                                    ANDBOOK OF                   EYEWITNESS  PSYCHOLOGY: M                                          EMORY FOR  

Identification Evidence, in 2 H 

PEOPLE  501, 512 (Rod C.L. Lindsay et al. eds., 2007) ("People are better at identifying                                                                              

those who are closer to them in age[]. . . .                                             [Thus,] [p]erhaps people should only use age                                                  

as a factor in deciding whether to believe an eyewitness if there is a large age difference                                                                             

between the witness and the suspect.").                         



               175           See Henderson, 27 A.3d at 907; Lawson, 291 P.3d at 688.  

                                                                                                                                                    



               176           See   Peter   N.   Shapiro  &  Steven  Penrod,  Meta-Analysis  of  Facial  

                                                                                                                                                                              

Identification Studies, 100 PSYCHOL. B                                              ULL. 139, 145 (1986) ("[D]istinctive targets [are]                                              

                                                           

easier to recognize than ordinary looking targets.").                                       



               177           BrianL.Cutler et al., Improving theReliabilityofEyewitnessIdentification:  

                                                                                                                                                                

                                                                                 PPLIED  PSYCHOLOGY  629, 635 (1987).                                 

Putting Context into Context, 72 J. A 

                                                                         



               178           See, e.g.          , Brian L. Cutler,                     A Sample of Witness, Crime, and Perpetrator                                  



                                                                                                                                             ARDOZO PUB.L.P                        OL'Y  

 Characteristics Affecting Eyewitness Identification Accuracy, 4 C 

& ETHICS J. 327, 332 (2006).                     

                       



               179           K.E.  Patterson  &  A.D.  Baddeley,  When  Face  Recognition  Fails,  3  J.  

                                                                                                                                                                                          

EXPERIMENTAL  PSYCHOL.: H                                       UM. L        EARNING  & M                   EMORY  406, 410, 414 (1977).                     



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----------------------- Page 61-----------------------

                                                           vii.           Race and ethnicity bias                                180  



                                                                                                                                                                                                 

                             Are  the  witness  and  the  perpetrator  of  different  races  or  ethnicities?  



                                                                                                                                                                                          

Research  also  convincingly  demonstrates  that  witnesses  are  much  more  likely  to  



                                                                                                                                                                                       

accurately identify members of their own race or ethnicity than members of others, and  



                                                                                                                                                                                      

that  eyewitness  identification  is  therefore  likely  to  be  less  reliable  if  witness  and  



                                                                         181  

                                                                                

perpetrator are of different races. 



                                                                                                                                                        182  

                                                                                                                                      

                                                           viii.          Memory decay/retention interval 



                                                                                                                                                                                                 

                             Howmuch timepassed between thecrimeandtheidentification procedure?  



                                                                                                                                                                                           

Research  has  not  identified  a  precise  time  after  which  a  witness's  identification  is  



                                                                                                                                                                                        

unreliable,  but the  more  time  that  passes  between  the  initial  confrontation  and  the  



                                                                                             183  

                                                                                                                                                                                           

identification, the more reliability suffers.                                                        And studies show that memory decay is  



               180           See Henderson                     , 27 A.3d at 907; Lawson, 291 P.3d at 688.                                            



               181            IDENTIFYING THE                       CULPRIT,  supra  note 81, at 96 ("The race and ethnicity of                                                            



a witness as it relates to that of the perpetrator is another important estimator variable.");                                                                         

see generally  Christian A. Meissner & John C. Brigham,                                                                        Thirty Years of Investigating  

the Own-Race Bias in Memory for Faces: A Meta-Analytic Review                                                                                        , 7 P     SYCHOL., P              UB.  

   OL'Y, & L. 3, 4-13, 27 (2001) (concluding that, because own-race bias presents a                                                                                                         

P                      

significant risk of false identifications, the issue is of "great practical importance").                                                                 



               182           See  Lawson,  291  P.3d  at  705  ("Estimating  the  effect  of  memory  

                                                                                                                                                                           

decay  .  .  .  turns  in  large  part  on  the  strength  and  quality  of  the  initial  memory  

                                                                                                                                                                            

encoded . . . .  Consequently, memory decay must be viewed in conjunction with other  

                                                                                                                                                                                    

variables, suchas cross-racialidentification,weapon-focus, degreeofattention, distance,  

                                                                                                                                                                            

lighting, and duration of initial exposure."); see also Henderson, 27 A.3d at 907.  

                                                                                                                                                                                     



               183            KennethA. Deffenbacher et al., ForgettingtheOnce-SeenFace:Estimating  

                                                                                                                                                                        

                                                                                                                                         XPERIMENTAL PSYCHOL:  

the Strength of an Eyewitness's Memory Representation, 14 J.E 

                                                                                                                                   

APPLIED   139,   142   (2008)   ("[M]emory   strength   will   be   weaker  at   longer   retention  

intervals than at briefer ones.").                   



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----------------------- Page 62-----------------------

exponential rather than linear; that is, an eyewitness's memory vanishes more rapidly as                                                                                                                  



                                184  

time goes by.                          

                                                                ix.             Co-witnesses185  



                                                                                                                                                                                                        

                                Did the witness discuss the identification or receive information about the  



                                                                                                                                                                                   

suspect from co-witnesses or other non-state actors?  The actions of third parties, like  



                                                                                                                                                                                  

those   of   law   enforcement   personnel,   can   affect   the   reliability   of   eyewitness  



                                    186  

identifications.                                                                                                                                                                                            

                                              Studies show that feedback from other witnesses can influence a  



                                                                                                                                                                                                    

witness's memory of an event and that such feedback can cause witnesses to form false  



                184             See, e.g.           , I  DENTIFYING THE                          CULPRIT,  supra  note 81, at 98 ("[T]he amount                                              



of time that passes from the initial observation and encoding of a memory to a future                                                                                                          

time   when   the   initial   observation   must   be   recalled   from   memory[]   can   affect  

identification accuracy."); Deffenbacher,                                                         supra  note 183, at 147-48 (describing findings                                           

of a "meta-analysis of 53 facial memory studies").                                                



                185             See Henderson, 27 A.3d at 907-09 (citing studies showing that "[c]o- 

                                                                                                                                                                                                

witness feedback may cause a person to form a false memory of details that he or she  

                                                                                                                                                                                                       

never actually observed.").  

                                    



                186             See Elin M. Skagerberg, Co-Witness Feedback in Line-Ups, 21 APPLIED  

                                                                                                                                                                                  

COGNITIVE   PSYCHOL. 489, 494-95 (2007);                                                                see also             IDENTIFYING THE   CULPRIT,  supra  

note 81, at 93.            



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----------------------- Page 63-----------------------

memories of details.187  Further, feedback from other witnesses delivered indirectly -                         



through a third party - can influence the reliability of an identification.                                                                          188  



                                                                                     * * *  

                                                                                            



                            This         evolved              understanding                     of       the       factors            affecting             eyewitness  

                                                                                                                                                          



identifications shows convincingly that the Brathwaite test does not adequately assess  

                                                                                                                                                                                     



reliability.              First, though  purporting to  test reliability,  the  Brathwaite  test does  not  

                                                                                                                                                                            



consider many of the factors now known to affect it; the test relies primarily on the five  

                                                                                                                                                                            



Biggers factors, which include "the opportunity of the witness to view the criminal at the  

                                                                                                                                                                              



time of the crime, the witness' degree of attention, the accuracy of his prior description  

                                                                                                                                                            



of the criminal, the level of certainty demonstrated at the confrontation, and the time  

                                                                                                                                                                          

between the crime and the confrontation."189                                                  While the State argues that this list is not  

                                                                                                                                                                             

                                                                                                                                  190 we are directed to no  

exclusive and while some other courts have noted other factors,                                                                                                               

                                                                                                                    



              187           Helen    M.    Paterson    &    Richard   I.   Kemp,    Comparing    Methods    of  



EncounteringPost-EventInformation:ThePower ofCo-WitnessSuggestion                                                                                         , 20 A     PPLIED  

COGNITIVE   PSYCHOL.   1083,   1095-98   (2006);   John   S.   Shaw,   III   et   al.,  Co-Witness  

Information Can Have Immediate Effects on Eyewitness Memory Reports                                                                                       , 21 L       AW   &  

    UM.BEHAV. 503, 516-18 (1997); Rachel Zajac & Nicola Henderson,                                                                             Don't It Make My              

H             

BrownEyes                Blue: Co-WitnessMisinformation                                        Abouta Target'sAppearanceCanImpair                                     

 Target-Absent Line-up Performance                                          , 17 M       EMORY  266, 275-77 (2009).                 



              188           See  Paterson & Kemp,                          supra  note 187, at 1097-98; Shaw,                                      supra  note 187,   



at 518-21.   



              189           Manson v. Brathwaite, 432 U.S. 98, 114 (1977) (discussing Neil v. Biggers,  

                                                                                                                                                                   

409 U.S. 188, 199-200 (1972)).  

                                                  



              190           See Suzannah B. Gambell, The Need to Revisit the Neil v. Biggers Factors:  

                                                                                                                                                                  

Suppressing Unreliable Eyewitness Identifications, 6 WYO. L. R                                                                     EV. 189, 207-14 (2006)             

                                                                                                              

(summarizing jurisdictions examining factors in addition to the five                                                                              Biggers   factors  

under  Brathwaite).  



                                                                                      -63-                                                                               7110
  


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                                                                                                                                                                             191  

appellate decision in Alaska that has relied on any factors other than the listed five.                                                                                             



                                                                                                                                                                       

Adhering to the Brathwaite test means that trial courts are unlikely to consider many  



                                                                                                                                                           

system  and  estimator  variables  now  known  to  affect  the  reliability  of  eyewitness  



identifications.  



                                                                                                                                                                             

                            Second, three of the five Biggers factors used in the Brathwaite test - the  



                                                                                                                                                                            

witness's degree of attention, opportunity to view, and level of certainty - rely on the  

                                                                              192     But many factors affect the accuracy of self- 

                                                                                                                                                                         

witness's own subjective perceptions. 



reporting, as discussed above, and witnesses may be unaware of them.  The Brathwaite  

                                                                                                                                                            



test is weakened by its heavy dependence on self-reporting with no means of gauging  

                                                                                                                                                                  

that reporting's reliability.193  

                                  



                           With respect to an eyewitness's level of certainty, the relationship between  

                                                                                                                                                                  



certainty  and  accuracy  is  not straightforward  and  is  significantly  affected  by  other  

                                                                                                                                                                       

characteristics of both the identification and the witness.194                                                                  As discussed above, an  

                                                                                                                                                                             



              191          See, e.g.         ,   Walker v. State              , 652 P.2d 88, 95 (Alaska 1982);                                     Vessell v. State              ,  



624 P.2d 275, 279 (Alaska 1981);                                     Howe v. State               , 611 P.2d 16, 18 (Alaska 1980);                                  Holden  

v. State, 602 P.2d 452, 456 (Alaska 1979);                                                   Young v. State                 , 331 P.3d 1276, 1280-81             

(Alaska App. 2014);                         White v. State              , 773 P.2d 211, 215 (Alaska App. 1989);                                             Dunbar v.   

State, 677 P.2d 1275, 1278 (Alaska App. 1984);                                                      State v. Contreras                    , 674 P.2d 792, 820              

(Alaska App. 1983),                        rev'd on other grounds sub nom. Contreras v. State                                                       , 718 P.2d 129         

(Alaska 1986).   



              192          Wells & Quinlivan, supra note 160, at 9 (explaining that "[p]sychological  

                                                                                                                                                

scientists are highly skeptical of [subjective] retrospective self-reports because of well- 

                                                                                                                                                                        

known tendencies for such reports being at odds with objective facts").  

                                                                                                                                    



              193          See id. ("At another level, psychological scientists find it somewhat odd  

                                                                                                                                                                           

that an eyewitness, whose credibility as a witness is being assessed, would be asked to  

                                                                                                                                                                               

report on his or her own credibility.").  

                                                    



              194          See Gary L. Wells & Elizabeth A. Olson, Eyewitness Testimony, 54 ANN .  

                                                                                                                                                                        

REV. P        SYCHOL. 277, 283-84 (2003).                   



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----------------------- Page 65-----------------------

 eyewitness's certainty can be increased by feedback from law enforcement personnel or                                                                                                                                                                                            



                                                     195  

 other witnesses;                                                                                                                                                                                                                                                             

                                                              and studies show that "[t]his certainty-inflation effect is greater for  



                                                                                                                                                                                                                                                             

 eyewitnesses who make mistaken identifications than it is for those who make accurate  

                                                                                                                                                                                                                                                               196   This  

                                                                                                                                                                                                                                                                         

                                                                                                                                                                                                                                 

identifications, resulting in a significant loss in the certainty-accuracy relation." 



is additionally problematic because eyewitnesses' certainty in their identifications may  

                                                                                                                                                                                                                                                                          

be of great weight to jurors,197  who, like the witnesses themselves, are not likely to be  

                                                                                                                                                                                                                                                                                

 aware of the factors that can affect the relationship between confidence and accuracy.198  

                                                                                                                                                                                                                                                  



                      195                  See supra                        Section IV.A.3.b.viii.   



                      196                  Wells & Olson, supra note 194, at 283; see also Amy L. Bradfield et al.,  

                                                                                                                                                                                                                             

 The Damaging Effect of Confirming Feedback on the Relation Between Eyewitness  

                                                                                                                                                                                                                                                   

                                                                                                                                                      PPLIED  PSYCHOL. 112, 117 (2002) ("Our                                                                         

 Certainty and Identification Accuracy, 87 J. A 

                                                                                                                                         

results indicate that confirming feedback significantly diminishes the strength of the                                                                                                                                                                                       

 certainty-accuracy relation, thereby reducing the usefulness of retrospective certainty                                                                                                                                                                   

reports as cues to identification accuracy. The strength of the certainty-accuracy relation                                                                                                                                                                     

was diminished because confirming feedback inflated the retrospective certainty reports                                                                                                                                                                           

 of inaccurate witnesses but not the reports of accurate witnesses.").                                                                                                          



                      197                  See   Michael   R.   Leippe   et   al.,   Cueing   Confidence   in   Eyewitness  

                                                                                                                                                                                                                                                 

Identifications: Influence of Biased Lineup Instructions and Pre-Identification Memory  

                                                                                                                                                                                                                                                             

Feedback Under Varying Lineup Conditions, 33 LAW  & H                                                                                                                                       UM. B              EHAV. 194, 194 (2009)                              

                                                                                                                                                             

 (summarizing studies and concluding that, "[a]mong other insights, several conclusions                                                                                                                                                           

may be drawn from the research," including that "factfinders tend to overestimate the                                                                                                                                                                                         

 accuracy of eyewitnesses who express confidence in their identifications").                                                                                                                 



                      198                  See Tanja Rapus Benton et al., Eyewitness Memory Is Still Not Common  

                                                                                                                                                                                                                                                          

Sense: Comparing Jurors, Judges and Law Enforcement to Eyewitness Experts, 20  

                                                                                                                                                                                                                                                                               

APPLIED  COGNITIVE  PSYCHOL.115, 119-20 (2006) (concluding that "large discrepancies                                                                                                                                                         

between   juror   and   expert   knowledge   were   found   for   .   .   .   the   accuracy-confidence  

relation," among other factors, and that only 50%of jurors were aware of the malleability                                                                                                                                                         

 of confidence as a factor affecting eyewitness identifications).                                                                                     



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                         The science also shows that a highly suggestive procedure can reinforce a                                                            



                                                                               199  

mistaken identification in a witness's mind.                                                                                              

                                                                                     As described above, factors contributing  



                                                                                                                                     

to  a  finding  of  unnecessary  suggestiveness  could  themselves  make  identifications  



                                                                                                                                                       

unreliable by giving witnesses an artificially inflated belief in the accuracy of their  

                                               200   Because the Brathwaite test assesses reliability only after  

erroneous identifications.                                                    



the defendant has shown that the procedure was unnecessarily suggestive, the test could  

                                                                                                                                                      



have the perverse effect of making it more likely an improperly suggestive identification  

                                                                                                                                        



procedure will be found reliable and admissible, because the suggestiveness itself has  

                                                                                                                                                          

made the witness more certain.201  

                                            



                                     c.	         The new test, consistent with the due process clause of  

                                                                                                                                                            

                                                 Alaska's constitution, fordetermining theadmissibility of  

                                                                                                                                                             

                                                 eyewitness identification evidence affected by suggestive  

                                                                                                                                            

                                                 state procedures  

                                                            



                         Young argues that weshouldadopt arule ofper se exclusion for eyewitness  

                                                                                                                                            



identifications that are affected by system variables, that is, those that are subject to  

                                                                                                                                                            



influence by the State.  He argues that this approach will better deter improper police  

                                                                                                                                                     



practices and protect defendants' constitutional rights.  While per se exclusion would  

                                                                                                                                                    



result   in   the   greatest   protection   against   the   effects   of   unreliable   eyewitness  

                                                                                                                                          



identifications, we agree with the State that a rule of per se exclusion, "requir[ing]  

                                                                                                                                         

suppression of reliable evidence any time a law enforcement officer missteps,"202 

                                                                                                                                                      goes  



                                                                                                                                      

too far.  We have rejected such a rule in the past, "both because it runs counter to the  



            199          See  Wells & Quinlivan,                     supra  note 160, at 9-14.
          



            200          See id.      at 16-17.
   



            201          See id.      ;   Tegoseak v.            State,   221   P.3d   345, 356-57 (Alaska App.                                     2009)
  



(noting the same analytical flaw).                  



            202          See State v. Henderson, 27 A.3d 872, 878 (N.J. 2011).  

                                                                                                                  



                                                                            -66-	                                                                     7110
  


----------------------- Page 67-----------------------

clear weight of authority in Alaska and the federal system, and because it results in the                                                                    



                                                                                               203  

unnecessary exclusion of much reliable evidence."                                                      



                         Instead, the test we announce today acknowledges the evolution in our  

                                                                                                                                                            



understanding of factors that affect the reliability of eyewitness identifications, thereby  

                                                                                                                                                     



protecting defendants' rights to due process under the Alaska Constitution, while at the  

                                                                                                                                                             



same time taking into account law enforcement's need for eyewitness evidence.   It  

                                                                                                                                                               



closely follows the framework set out by the Supreme Court of New Jersey in State v.  

                                                                                                                                                     



                      204  

Henderson .                  



                         First, to be entitled to an evidentiary hearing on the issue, the defendant  

                                                                                                                                                



must  present  "some  evidence  of  suggestiveness  that  could  lead  to  a  mistaken  

                                                                                                                                                 

identification."205                 This proffer must "be tied to a system - and not an estimator -  

                                                                                                                                                              

                   206   consistent with  the principle of due process law  that  only  state action  

variable,"                                                                                                                                             

triggers constitutional protections.207  We emphasize that a defendant need not show that  

                                                                                                                                                            



a  procedure  was  "unnecessarily  suggestive"  in  order  to  get  a  hearing;  that  the  

                                                                                                                                                            



identification involved a system variable is itself enough to trigger that process.  

                                                                                                                                       



             203         See Viveros v. State                 , 606 P.2d 790, 792 n.1 (Alaska 1980).
                       



             204         27 A.3d at 919-22.
  

                                               



             205  

                                     

                         Id. at 920.
  



             206         Id.
  



             207  

                                                                                                                                                            

                         See Nichols v. Eckert, 504 P.2d 1359, 1362 (Alaska 1973) ("For [the due  

                                                                                                                                                

process] clause to apply there must be state action and the deprivation of an individual  

                                                                                                             

interest of sufficient importance to warrant constitutional protection.").  



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                        At the hearing the State must present evidence that the identification is                                



                                      208  

nonetheless   reliable.                                                                                                                          

                                              The  superior  court's  ensuing  analysis  of  reliability  should  



                                                                                                                                                       

consider  all  relevant  system  and  estimator  variables  under  the  totality  of  the  

                           209   Although the variables to consider include those discussed above, we  

circumstances.                                                                                                                                           



emphasize  that the list is non-exclusive; the scientific understanding  of eyewitness  

                                                                                                                                         

memory continues to evolve.210                             Because of this, trial courts should not hesitate to take  

                                                                                                                                                       



expert  testimony  that  explains,  supplements,  or  challenges  the  application  of  these  

                                                                                                                                                    



variables to different fact situations.  

                                                



                        Although the defendant must only identify a relevant system variable in  

                                                                                                                                                          



order to obtain a hearing, the defendant retains the burden of proving at that hearing a  

                                                                                                                                             

"very substantial likelihood of irreparable misidentification."211                                                   If the defendant meets  

                                                                                                                                                   



this burden, the trial court should suppress the evidence -both the pretrial identification  

                                                                                                                                      

and any subsequent in-court identification by the witness.212                                                   If the defendant does not  

                                                                                                                                               



meet the burden, however, the court should admit the evidence and provide the jury with  

                                                                                                                                                      



an instruction appropriate to the context of the case, which we discuss in greater detail  

                                                                                                                                                    

below.213  

                   



            208         See Henderson               , 27 A.3d at 920.
         



            209         Id.
  



            210         Id. at 922 ("We recognize that scientific research relating to the reliability  

                                                                                                                                             

of eyewitness evidence is dynamic; the field is very different today than it was in 1977,  

                                                                                                                                                    

and it will likely be quite different thirty years from now.").  

                                                                                                



            211         Id. at 920.  

                                             



            212         Id.  



            213         See id.  

                                 



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----------------------- Page 69-----------------------

                                 "Of course, nothing has altered the State's burden of proving at trial the                                                                                                    



identity of the accused as the person who committed the charged offense beyond a                                                                                                                                   

reasonable doubt."                             214  



                                                                                                                                                                                                               

                                 4.	              Jury instructions should take into account this new test for the  

                                                                                                                  

                                                  reliability of eyewitness identifications.  



                                                                                                                                                                                                          

                                 If eyewitness identification is a significant issue in a case, the trial court  



                                                                                                                                                                                                 

should issue an appropriate jury instruction that sets out the relevant factors affecting  



                                                                                                                                                                                                              

reliability.                   The  Supreme  Court  in  Perry  v.  New  Hampshire,  though  retaining  the  



                                                                                                                                                                                                             

Brathwaite test, took "account of other safeguards built into our adversary system that  



                                                                                                                                                                                       

caution juries against placing undue weight on eyewitness testimony of questionable  



                                                                                                                                                                                                        

reliability,"  noting  especially  "[e]yewitness-specific  jury  instructions,  which  many  



                                                                                                                                                                                             

federal and state courts have adopted, . . . [that] warn the jury to take care in appraising  

                                                              215        We  agree  that  jury  instructions  specific  to  eyewitness  

                                                                                                                                                                                          

identification  evidence." 



identifications are necessary for the jury's proper understanding of the issue.  

                                                                                                                                                                                 



                                 While  it  is  "the  province  of  the  jury  to  determine  credibility  of  

                                                                                                                                                                                                               

witnesses,"216   "the reliability of eyewitness identifications frequently is not a matter  

                                                                                                                                                                                                      

within the knowledge of an average juror."217                                                                      Many of the factors that affect reliability  

                                                                                                                                                                                               

"are counterintuitive and, therefore, not coterminous with 'common sense.' "218                                                                                                                       "Thus,  

                                                                                                                                                                                                      



                 214             State v. Henderson                             , 77 A.3d 536, 544-45 (N.J. Super. Ct. App. Div. 2013).
                                                               



                 215              132 S. Ct. 716, 728-29 (2012) (internal citations omitted).
                                                             



                 216              Galauska v. State, 532 P.2d 1017, 1018 (Alaska 1975).
  

                                                                                                                                                          



                 217             State v. Guilbert                        , 49 A.3d 705, 731 (Conn. 2012).
                                  



                 218              Young   v.   Conway,   698   F.3d   69,   79   (2d   Cir.   2012)   (noting,   as   factors
  



affecting reliability, "the perpetrator's wearing a disguise, the presence of a weapon, the                                                                                                                     

stress of the situation, the cross-racial nature of the crime, the passage of time between                                                                                                        

                                                                                                                                                                                     (continued...)  



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----------------------- Page 70-----------------------

while science has firmly established the 'inherent unreliability of human perception and                                                              



memory,' this reality is outside 'the jury's common knowledge,' and often contradicts                                         



                                                                         219  

jurors' 'commonsense' understandings."                                         



                                                                                                                                            

                        We refer the issue of eyewitness-specific jury instructions to the Criminal  



                                                                                                                                        

Pattern Jury Instructions Committee and ask that it draft a model instruction appropriate  



                                                                                                                         

 for use in future cases, consistent with the principles we announce today.  



                                                                                                                                                    

            B.	         It  Was  Error  Not  To  Give  A  Specific  Jury  Instruction  On  The  

                                                                                                                                                  

                        Reliability   Of   Eyewitness   Identifications,   But   The   Error   Was  

                        Harmless.  



                                                                                                                                                     

                        Young argues that the superior court erred when it refused to give a jury  



                                                                                                                                                 

instruction specific to the reliability of eyewitness identifications.  Although trial courts  



                                                                                                                              

 are generally constrained to apply the law as it is rather than the law as they believe it  



                                                                                                                                                  

 should be, we agree that such an instruction should have been given in Young's case.  



                                                                                                                                                   

                        Alaska Rule of Criminal Procedure 30(b) states that "[t]he court shall  



                                                                                                                                                 

instruct  the  jury  on  all  matters  of  law  which  it  considers  necessary  for  the  jury's  



                                                                                                                                                 

information in giving their verdict"; "[w]hether or not a requested jury instruction should  



                                                                                           220  

                                                                                                                                       

be given lies in the discretion of the trial court."                                              " '[A]s long as the instructions  



                                                                                                                                            

 actually given by the trial court adequately set forth the applicable law, a more elaborate  



            218(...continued)  



                                                                                                                                              

 observation and identification, and the witness's exposure to defendant through multiple  

                          

identification procedures").  



            219          United States v. Brownlee, 454 F.3d 131, 142 (3d Cir. 2006) (quoting  

                                                                                                                                            

Rudolf Koch, Note, Process v. Outcome: The Proper Role of Corroborative Evidence  

                                                                                                                               ORNELL  L. R          EV.  

 in Due Process Analysis of Eyewitness Identification Testimony, 88 C 

                             

 1097, 1099 n.7 (2003)).  



            220	  

                                                                                                            

                        Snyder v. State, 930 P.2d 1274, 1280 (Alaska 1996).  



                                                                          -70-	                                                                    7110
  


----------------------- Page 71-----------------------

explanation   of the defendant's theory                                 of the case'           is not required              unless it 'would     

substantially aid the jury in arriving at a just verdict.' "                                      221  



                        At  trial,  Young  proposed  two  jury  instructions  specific  to  eyewitness  

                                                                                                                                       



evidence.  The first discussed the burden of proof on identity and summarized factors  

                                                                                                                                               



other courts have found to affect the reliability of eyewitness identifications, including  

                                                                                                                                          



                                                                                                               222  

reference to the court of appeals' opinion in Tegoseak v. State.                                                     The second proposed  

                                                                                                                                           



instruction was modeled after one approved by the United States Court of Appeals for  

                                                                                                                                      

                                                                                                                 223    The superior court  

the District of Columbia Circuit in  United States v. Telfaire.  

                                                                                                                                                 



declined to give either instruction.  It found that Tegoseak was not controlling because  

                                                                                                                                             



its summary of the factors affecting thereliability of eyewitness identifications was dicta,  

                                                                                                                                                  



that Young's draft instruction was "more argument than . . . a proposition of law," and  

                                                                                                                                                     



that the proposed instruction would be redundant since the pattern instructions discuss  

                                                                                                                                              



the burden of proof and witness credibility generally. The superior court refused to give  

                                                                                                                                                    



the  Telfaire instruction for the same reasons.  In affirming these rulings, the court of  

                                                                                                                                                       



appeals relied on its prior decisions in which it had "affirmed convictions where the trial  

                                                                                                                                                    



court gave the pattern instruction instead of a more focused instruction on eyewitness  

                                                                                                                                       

identification."224  

                                    



            221         Robart v. State           , 82 P.3d 787, 795 (Alaska App. 2004) (alteration omitted)                                



(quoting  Lee v. State               , 760 P.2d 1039, 1041 (Alaska App. 1988)).                         



            222         221 P.3d 345 (Alaska App. 2009).  

                                                                           



            223         469 F.2d 552, 558-59 (D.C. Cir. 1972).  

                                                                                    



            224         Young v. State, 331 P.3d 1276, 1281 (Alaska App. 2014) (citing McGee v.  

                                                                                                                                                        

State, 614 P.2d 800, 804 (Alaska 1980); Dayton v. State, 598 P.2d 67, 68 (Alaska 1979);  

                                                                                                                                                

Larson v. State, 656 P.2d 571, 575-76 (Alaska App. 1982); Williams v. State, 652 P.2d  

                                                                                                                                                   

478, 480 (Alaska App.1982)).  

                                 



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----------------------- Page 72-----------------------

                       The principle cited by the court of appeals originated in a 1977 opinion,                                         



                                  225  

Buchanan v. State                .                                                                                                          

                                         In Buchanan, a defendant was charged with attempted sexual  

                                                                                                                 226   The superior court  

                                                                                                                                               

                                                                                                      

abuse of a minor, and the victim identified him in a pretrial lineup. 



instructed the jury "that the state ha[d] the burden of proving accurate identification  

                                                                                                                               



beyond a reasonable doubt," rejecting the defendant's requested instruction that went  

                                                                                                                                               



"beyond the court's instruction in that it focuse[d] attention on possible inadequacies of  

                                                                                                                                                    



a witness' identification, such as the time intervening, the opportunity for the witness to  

                                                                                                                                                    



observe  in  the  first  instance,  and  possible  external  influences  on  the  witness'  

                                                                                                                                       

testimony."227            We found no error in the court's decision because the instruction "given  

                                                                                                                                            



by  the  court  embodied  correct  statements  of  the  controlling  law  on  the  subject  of  

                                                                                                                                                   

identification."228  

                                 



                       As describedabove, however, theunderstandingof the factors affecting the  

                                                                                                                                                  

reliability of eyewitness identifications has evolved significantly since Buchanan229  in  

                                                                                                                                                    



ways that are "largely unfamiliar to the average person, and, in fact, many . . . are  

                                                                                                                              

                               230    We can no longer say with confidence that the pattern witness  

counterintuitive."                                                                                                                        



            225        561 P.2d 1197 (Alaska 1977).              



            226  

                                                                                                                                                 

                       See id. at 1200.  At the time, the statute defined the crime as "lewd and  

                                                                                                          

lascivious acts toward a child." Id. at 200 (citing former AS 11.15.134).  



            227        Id. at 1207.  

                                  



            228        Id.  



            229        Buchanan was decided in March 1977.  561 P.2d at 1197.  The United  

                                                                                                                                           

States Supreme Court decided Manson v. Brathwaite three months later.  See 432 U.S.  

                                                                                                                                               

98 (1977).  

                    



            230        State v. Guilbert, 49 A.3d 705, 723 (Conn. 2012).  

                                                                                                    



                                                                        -72-                                                                  7110
  


----------------------- Page 73-----------------------

credibility instruction is adequate to explain the potential unreliability of eyewitness                                                                                                                                            



identifications.  



                                         Furthermore, eyewitness identification was a significant issue in Young's                                                                                                                          



case:   he presented an alibi defense, and the State countered with eyewitnesses who                                                                                                                          



claimed to have seen him behind the wheel of the shooters' vehicle.                                                                                                                                          Young challenged   



the admissibility of two of the identifications.                                                                                            And the State's closing argument relied                                                                  



heavily on the eyewitnesses' testimony.                                                  



                                         In these circumstances, an instruction alerting the jury to the potential                                                                                                                         



fallibility of eyewitness identifications was "necessary for the jury's information in                                                                                                                                                                          

                                                               231        And while it is true that the instructions Young proposed were  

giving their verdict."                                                                                                                                                                                                                                  



"not perfect statements of Alaska law in this area," they "certainly sufficed to draw the  

                                                                                                                                                                                                                                                             



                                                                                                            232  

matter . . . to the judge's attention."                                                                             

                                                                            



                                        We cannot say, however, that the failure to give Young's requested jury  

                                                                                                                                                                                                                                                          

                                                                                                                                                                                    233  First, the State's case did  

instructions "appreciably affect[ed] the verdict" against him.                                                                                                                                                                                               

                                                                                                                                                                       



not rest on identification by a single witness; the State presented three independent  

                                                                                                                                                                                                                                



witnesses  with  different  perspectives  and  no  apparent  connections  to  each  other,  

                                                                                                                                                                                                                                                   



including one who had known Young before the crime.  

                                                                                                                                                                           



                    231                 Alaska R. Crim. P. 30(b).                                   



                    232  

                                                                                                                                                                                                                  

                                        Des Jardins v. State, 551 P.2d 181, 189 (Alaska 1976).  



                    233  

                                                                                                                                

                                        Evans v. State, 574 P.2d 24, 25-26 (Alaska 1978) (holding that failure to  

                                                                                                                                                                                                                                                   

give  informer  instruction  was  harmless).                                                                                          Young  contends  that  "[i]n  certain  cases,  

focused instructions on how toevaluate eyewitness identification evidence are necessary                                                                                                                                                   

to safeguard the presumption of innocence," citing                                                                                                           United States v. Telfaire                                                  , 469 F.2d       

                                                                                                                                                                                                                                                                   

552, 555 (D.C. Cir. 1972).  While we agree with Young's premise, this is not such a  

case.   Telfaire  dealt with "the uncorroborated testimony of a single witness."                                                                                                                                                       Id.  at 554.                       

                                                                                                                                                                                                                                                   

In this case, given the other eyewitnesses and corroborating evidence, the error in failing  

to give an eyewitness identification instruction was not of constitutional dimension.                                                                                                                                        



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----------------------- Page 74-----------------------

                          Second,   in   jury  voir   dire,   cross-examination,   and   closing   arguments,  



Young's attorneys raised and emphasized many of the concerns that would have been                                                                  

                                                                               234      In  addition  to  criticizing  the  individual  

addressed   by   the   proposed   instructions.                                                                                                    



identifications  specifically,  Young's  attorneys  addressed  a  number  of  system  and  

                                                                                                                                                               



estimator variables, including the possibility that suggestion by law enforcement officers  

                                                                                                                                                         



could result in a sincerely believed but false memory; the tendency of human memory  

                                                    



to "fill in the holes" with things not actually witnessed; and the tendency of a witness to  

                                                                                                                                                                   



overstate  the  favorableness  of  the  conditions  under  which  the  crime  was  viewed.  

                                                                                                                                                                         



Young's counsel discussed in voir dire a highly publicized case of wrongful conviction  

                                                                                                                                                   

by eyewitness misidentification and referred to the case again in closing.235  

                                                                                                                             



                          Finally, the State's case against Young relied on other evidence besides the  

                                                                                                                                                                 



testimony of eyewitnesses, including his possession of both the gun and the key to the  

                                                                                                                                                                 



SUV allegedly involved in the shooting and the testimony of several witnesses that the  

                                                                                                                                                                 



assailants' SUV was Young's.  

                                                             



                          For these reasons, we conclude that the failure to give a jury instruction  

                                                                                                                                                  



specific to eyewitness identification, though error, was harmless.  

                                                                                                           



             234          Cf. Buchanan               , 561 P.2d at 1207 n.28 (noting "that all of the factors to                                                   



which   the   instruction   alluded   were   referred   to   by  Buchanan's   counsel   in   his   final  

argument to the jury");                     Riley v. State           , 60 P.3d 204, 208 (Alaska App. 2002) (holding that                                        

flaws in jury instructions can be cured by the arguments of the parties).                                                 



             235          The facts of that case are also discussed in Tegoseak v. State, 221 P.3d 345,  

                                                                                                                                                               

352-53 (Alaska App. 2009).  

                                           



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                         C.	                      The Superior Court Did Not Abuse Its Discretion By Denying Young's                                                                                                                                                                                

                                                  Motion For Mistrial.                            



                                                  Young also claims that the court of appeals erred when it affirmed the                                                                                                                                                                                                



superior court's denial of his motion for mistrial due to what the court of appeals found                                                                                                                                                                                                                      



to be a discovery violation by the State: its failure to inform the defense that Arauz gave                                                                                                                                                                                                                        



a statement to Detective Elzey on the night of the shooting, identifying Young as one of                                                                                                                                                                                                                                     



the shooters.                                     We agree that the superior court did not abuse its discretion in denying a                                                                                                                                                                                                    



mistrial, though our analysis differs from that of the court of appeals.                                                                                                                                                                                               



                                                  Alaska Rule of Criminal Procedure 16(b)(1)(A)(i) requires the State to                                                                                                                                                                                                    



disclose   to   the   defendant   "[t]he   names   and   addresses   of   persons   known  by  the  



government   to   have   knowledge   of   relevant   facts   and   their   written   or   recorded  



statements."   In denying a mistrial, the superior court held that this rule did not apply to                                                                                                                                                                                                                                



Arauz's statement to Detective Elzey because the statement had not been written or                                                                                                                                                                                                                                          



recorded;   the   superior   court   also   found   a   lack   of   prejudice.     The   court   of   appeals  



disagreed with the superior court on whether the State's failure to disclose violated Rule                                                                                                                                                                                                                         

                                                                                                                                    236            But the court of appeals nevertheless affirmed  

 16(b)(1)(A)(i), holding that it did.                                                                                                                                                                                                                                                              



Young's conviction, holding that the superior court did not err in concluding that Young  

                                                                                                                                                                                                                                                                                                           



had failed to show a "plausible way in which his defense was prejudiced" by the State's  

                                                                                                                                                                                                                                                                                                           

failure to disclose.237  

                                    



                                                  We agree with the court of appeals that there was a discovery violation.  

                                                                                                                                                                                                                                                                                                                                        



The police reports that were disclosed to the defense stated that Arauz had not been able  

                                                                                                                                                                                                                                                                                                                     



to identify Young on the day of the shooting, which was the exact opposite of the  

                                                                                                                                                                                                                                                                                                                        



                         236                       Young v. State                                        , 331 P.3d 1276, 1283 (Alaska App. 2014).                                                                                                



                         237                      Id.  



                                                                                                                                                           -75-	                                                                                                                                                                  7110  


----------------------- Page 76-----------------------

               238  

reality.              As the court of appeals observed, to allow the State to avoid disclosing witness                                                                    



statements under circumstances like these - by the simple expedient of promising the                                                                                               



witness that the statement will not be recorded - would "violate[] both the text and                                                                                             



spirit of Criminal Rule 16, which is designed to prevent precisely this type of unfair                                                                                      

surprise."239  



                             We addressed the remedy for such discovery violations in Bostic v. State,  

                                                                                                                                                                              



in which we held that "a defendant is presumptively prejudiced when confronted with  

                                                                                                                  



a Criminal Rule 16(b)(1)(A)(i) violation," and that "[t]he burden rests on the State to  

                                                                                                                                                                                     

show that the defendant has not been prejudiced in the manner he specifically claims."240  

                                                                                                                                                                                           



                             Young claimed hewas prejudiced because he was pursuing an alibi defense  

                                                                                                                                                                          



that relied on discrediting Arauz, the only eyewitness who knew Young by sight.  He  

                                                                                                                                                                                   



committed to his alibi defense in opening statements, when his attorney told the jury,  

                                                                                                                                                                               



"You will also hear evidence as to where Mr. Young was that day"; "[t]he individuals  

                                                                                                                                                    



[who] were there that day did not see Mr. Young"; and "by the end of the presentation  

                                                                                                                                                               



of the evidence, you will hear the inconsistencies and the substantial nature of the  

                                                                                                                                                                                  



inconsistencies  .  .  .  by  these  witnesses."                                               Later,  when  seeking  a  mistrial,  Young's  

                                                                                                                                                                      



attorneys told the court that one of their considerations in advising Young to pursue an  

                                                                                                                                                                                     



alibi defense was their perception of Arauz as "an individual [who is] adamant when he's  

                                                                                                                                                                                 



interviewed [immediately after the shooting] that he couldn't see a thing, nothing, and  

                                                                                                                  



then thereafter, about a month later, being called in, and . . . he was shown that lineup  

                                                                                                                           



right before he went in to testify [at the grand jury]."  Relying on that timeline and the  

                                                                                                                                                                                   



prospect of impeaching Arauz, Young's attorneys steered  the cross-examination of  

                                                                                                                                                                                    



              238           Id.  



              239           Id.  



              240            805 P.2d 344, 349 (Alaska 1991).                           



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----------------------- Page 77-----------------------

 Arauz toward demonstrating that he first realized Young was a suspect when he arrived                                                                   



                                                                                241  

 at the grand jury, weeks after the shooting.                                                                                                                 

                                                                                      They pursued this line of questioning until  



                                                                                                                                                               

 brought up short by new information:  that Arauz had, in fact, identified Young the day  



                                                                                              

 of the crime.  The defense attorneys argued that had they known of Arauz's same-day  



                                                                                                                                                              

 identification  they  "may  have  changed  [their]  entire  theory  of  the  case  to  run  



                                                                                                                                                            

justification" as a defense rather than alibi; in support of such a defense they cited  



                                                                                                                                                             

 evidence that someone in the second vehicle behind the targeted Buick may have fired  



                                                                                                                                                             

 at the pursuing silver SUV, as well as "multiple other ballistics evidence that hasn't been  



                                            

 matched to anyone."  



                                                                                                                                                                 242  

                                                                                                                                                                       

                          This was a specific claimofprejudice that the State was required to rebut. 



 We note that the court of appeals framed the defendant's initial burden of claiming  

                                                                                                                                                     



 prejudice in terms of plausibility:  "Although the State bears the burden of disproving  

                                                                                                                                                 



 that the defendant was prejudiced by a mid-trial discovery violation, the defendant must  

                                                                                                                                                             

                                                                                                                                            243    While we  

first  set forth some plausible way in which his defense was prejudiced."                                                                                       

                                                                                                                     



 agree that a claim of prejudice must be plausible before the State is required to rebut it,  

                                                                                                                                                                  



 we emphasize that the defendant does not bear any evidentiary burden in raising the  

                                                                                                                                                                

 presumption.244  The defendant's claimof prejudice need only be facially plausible in the  

                                                                                                                                                                



              241         Young's attorney asked Arauz, "Then you go to the grand jury, right? And                                                            



 you're shown a photo lineup, weren't you? . . .                                           And so now you know that the State is                                   

 suspecting [Young] . . . ."                         



              242         See Bostic, 805 P.2d at 349.  

                                                                        



              243          Young, 331 P.3d at 1283 (emphasis added).  

                                                                                                



              244         The court of appeals observed that "Young did not make an offer of proof  

                                                                                                                                                            

 or ask to present information to the court in camera to establish that he had evidence to  

                                                                                                                                                                  

 support the [justification] defense." Id.  We agree that the stronger and better-supported  

                                                                                                                                       

 the specific claim of prejudice, the more difficult it will be for the State to rebut it.  But  

                                                                                                                                                               

                                                                                                                                            (continued...)  



                                                                               -77-                                                                         7110
  


----------------------- Page 78-----------------------

context of the case; as we held in                            Bostic, to "burden . . . the non-offending party . . . with                                 



[having to show] proof that the violation resulted in the prejudice he specifically claims,                                                           



rather than requiring the offending party to show that the violation did not result in such                                                                

prejudice, is manifestly unjust."                           245  



                         In response to Young's motion for mistrial, the State focused on what it  

                                                                                                                                                                



termed the "minimal" effect of the new evidence on Young's alibi defense; it contended  

                                                                                                                                               



that the defense's "ability to cross-examine and point out that [Arauz] had changed his  

                                                                                                                                                             



story, that he had originally lied to the police, was still there."  The State argued that the  

                                                                                                                                                             



defense's claim that it "would have . . . used a different theory of the case [was] a  

                                                                                                                                                                



stretch" given that Young knew long before trial that Arauz had identified him at the  

                                                                                                                                                             



grand jury and still opted against a justification defense.  

                                                                                                           



                         Both the superior court and the court of appeals, in explaining why they  

                                                                                                                                                           



found no prejudice, noted the fundamental inconsistency between a justification defense  

                                                                                                                                                     

                                                                                       246     But the fundamental inconsistency  

and the alibi defense Young actually put on.                                                                                             

                                                                                  



between  the  two  theories  is  the  major  part  of  the  prejudice  Young  claimed;  if  the  

                                                                                                                                                             



defenses were not inconsistent, he would not have been significantly prejudiced by  

                                                                                                                                                              



having to switch from one to the other mid-trial.   And the brief continuance, while  

                                                                                                                                                        

helping to address some of Young's claims of prejudice,247  could not cure the prejudice  

                                                                                                                                                  



             244(...continued)  



                                                                                                                                                               

whether the presumption of prejudice arises does not depend on an offer of proof or an  

                                                                                                                                                    

in camera evidentiary presentation by a defendant, like Young, who has made a specific  

                 

claim of prejudice.  



             245         Bostic, 805 P.2d at 347.  

                                                              



             246         Young, 331 P.3d at 1283.  

                                                               



             247         For  example,  Young  claimed  that  he  needed  more  information  about  

                                                                                                                                                        

                                                                                                                                         (continued...)  



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----------------------- Page 79-----------------------

of having committed irrevocably to one defense without knowing all its weaknesses. As                                                                                                



we explained in                     Bostic, "A continuance would have given [the defendant] only more                                                                          



time to agonize over how to unring a bell that should never have been rung in the first     

place."248  



                             We  conclude,  however,  that  the  State  successfully  rebutted  Young's  

                                                                                                                                                                       



specific claim of prejudice.  As the prosecutor pointed out, the primary revision to the  

                                                                                                                                                                                    



story of Arauz's identification was with regard to its timing.  Young knew Arauz had  

                                                                                                                                                                                   



failed to identify him on the day of the crime; what he did not know was that Arauz  

                                                                                                                                                                             



reversed course later the same day rather than three weeks later at the grand jury.  The  

                                                                                                                                                                                  



defense could still impeach Arauz by pointing out "that he had changed his story, that  

                                                                                                                                                                     



he had originally lied to the police."  The untimely disclosure did not prevent Young's  

                                                                                                                                                                        



attorneys from arguing to the jury that Arauz had fabricated his identification.  

                                                                                                                                                                          



                             We understand Young's argument that there is a significant difference  

                                                                                                                                                                    



between a spontaneous same-day identification and one made only after the police have  

                                                                                                                                                                                 



identified the suspect. But the question is whether knowing the different timeline before  

                                                                                                                                                                             



trial would have prompted Young to abandon his alibi defense in favor of an unlikely  

                                                                                                                                                                         



alternative.  The State's evidence, as described by the court of appeals, "showed that  

                                                                                                                                                                                  



Young had been driving a silver SUV and firing shots at a car that was trying to get  

                                                                                                                                                                                   



              247(...continued)  



                                                                                                                                                                                    

Arauz's same-day identification in order to effectively cross-examine him about it.  



              248           Bostic,   805   P.2d   at   348.     We   noted   in   Bostic   that,   in   contrast   to   a  



                                                                                                                                                                    

continuance, "[a] mistrial is a tailored remedy, which would allow both [the defendant]  

to restructure his defense in light of the sudden revelation of information which he was                                                                                          

                                                                                                                                                                  

entitled to have all along, and the state to put on relevant evidence in its possession,  

                                                                                                                                                       

should it deem the evidence too important to proceed without it."  Id.  



                                                                                         -79-                                                                                  7110
  


----------------------- Page 80-----------------------

                                         249  

  away."                                                On the basis of the information and arguments presented by both parties, the                                                                                                                                                                                                                                                                                                                                                    



  superior   court   reasonably   concluded   that   Young  was   unlikely   to   have   pursued   a  



justification defense regardless of when he learned of Arauz's same-day identification.                                                                                                                                                                                                                                                                                                                                                                                                                         



  The loss of that option was Young's primary claim of prejudice and the one on which he                                                                                                                                                                                                                                                                                                                                                                                                     



  focuses his appeal.                                                                                            Because the State rebutted the prejudice that Young specifically                                                                                                                                                                                                                                                      



  claimed, the superior court did not abuse its discretion when it denied Young's mistrial                                                                                                                                                                                                                                                                                                                                                                     



 motion.  



 V.                                    CONCLUSION  



                                                                             We AFFIRM the court of appeals' decision affirming Young's conviction                                                                                                                                                                                                                                                                                            



  on the alternate grounds that admitting Gazewood's eyewitness identification and failing                                                                                                                                                                                                                                                                                                                                                                            



 to give an eyewitness-specific jury instruction, though errors, were harmless.                                                                                                                                                                                                                                                                                                                



                                       249                                    Young, 331 P.3d at 1283.                                                                                                                         



                                                                                                                                                                                                                                           -80-                                                                                                                                                                                                                                                           7110  

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