[Cite as State v. Pettiford, 2019-Ohio-892.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellant : Appellate Case No. 27490
:
v. : Trial Court Case No. 2016-CR-2713
:
STEPHEN M. PETTIFORD : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellee :
:
...........
OPINION
Rendered on the 15th day of March, 2019.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellant
MICHAEL T. GMOSER, Atty. Reg. No. 0002132 and LINA N. ALKAMHAWI, Atty. Reg.
No. 0075462, 315 High Street, 11th Floor, Hamilton, Ohio 45011
Attorneys for Amicus Curiae, Butler County Prosecutor’s Office
SARAH C. LARCADE, Atty. Reg. No. 0095905 and ELIZABETH A. WELL, Atty. Reg. No.
0087750, 3976 North Hampton Drive, Powell, Ohio 43065
Attorneys for Amicus Curiae, Ohio Crime Victim Justice Center
MARCY A. VONDERWELL, Atty. Reg. No. 0078311, P.O. Box 24805, Dayton, Ohio
45424
Attorney for Defendant-Appellee
-2-
JOHN K. CARROLL, Atty. Reg. No. 0002288, 4 Times Square, Suite 39-336, New York,
New York 10036
Attorney for Amicus Curiae, The Innocence Project, Inc.
ALEXIS AGATHOCLEOUS, Atty. Reg. No. 0002298, 40 Worth Street, Suite 701, New
York, New York 10013
Attorney for Amicus Curiae, The Innocence Network, The Innocence Project, Inc.,
and The Ohio Innocence Project
ELIZABETH BERRY, Atty. Reg. No. 0095524, 1255 New Hampshire Avenue, Apt. 832,
Washington, D.C. 20036
Attorney for Amicus Curiae, The Innocence Network
.............
WELBAUM, P.J.
{¶ 1} Following Stephen Pettiford’s acquittal on a single count of importuning, the
State of Ohio filed a motion seeking leave to appeal under R.C. 2945.67(A) and App.R.
5(C). We granted the State’s motion, and the State then filed a brief raising one
assignment of error directed to instructions the trial court gave to the jury. Specifically,
the State contends that the court abused its discretion by instructing the jury on the
“fallacies” of memory. According to the State, the instructions were improperly based on
the court’s opinion, rather than the law.
{¶ 2} During the appeal, we granted leave to various amicus curiae, including the
Butler County, Ohio, Prosecutor’s Office, the Ohio Crime Victim Justice Center (“Victim
Justice Center”), and the Innocence Project, all of whom assisted our understanding of
the issues before us. We have carefully considered the arguments presented by all
participants in the appeal.
{¶ 3} After considering the record and applicable law, we conclude that the trial
court’s jury instructions on fallacies of memory were based on legal authority supporting
-3-
the instructions, rather than the court’s opinion. However, the trial court erred when it
instructed the jury on memory science studies. Neither side presented expert testimony,
nor did the court call an expert witness using appropriate procedures under Evid.R. 614.
At this stage of legal development in Ohio, the science of witness memory relating to
identification is the proper subject of expert testimony rather than the use of these
disputed jury instructions. Furthermore, this case does not involve identification, as the
defendant and alleged victim were acquainted with each other. Accordingly, the State’s
sole assignment of error will be sustained. Due to Pettiford’s acquittal, however, trial
court’s judgment will not be disturbed, because Pettiford cannot be placed twice in
jeopardy.
{¶ 4} For the foregoing reasons, we also find that unless the Ohio Supreme Court
rules otherwise, information concerning memory and identification can be presented by
expert testimony subject to the adversarial process, but that if so presented, a preliminary
or final jury instruction that appears to support or not support such testimony is
inappropriate.
{¶ 5} We also conclude that a concise, limited, and neutral memory or identification
instruction which accords with controlling precedent may be appropriate; whether such
instruction may require pre-trial expert evidence, subject again to the adversarial process,
would depend on the precise wording of the instruction.
{¶ 6} Finally, we find that the instructions given in this case did not comply with our
conclusions herein.1
1 This opinion is one of three that will be released simultaneously dealing with the trial
court’s use of an instruction concerning the fallibility of human memory. See State v.
Rac, 2d Dist., Montgomery No. 27536 and State v. Mabberly, 2d Dist. Montgomery No.
-4-
I. Facts and Course of Proceedings
{¶ 7} This action arose from events that occurred in June 2016, during which
Pettiford allegedly approached C.F., a 12-year old girl, and offered to give her money to
engage in sexual conduct. Pettiford was 23 years old at the time.
{¶ 8} In September 2016, an indictment was filed, charging Pettiford with
recklessly soliciting a person who was less than 13 years old to engage in sexual activity
in violation of R.C. 2907.07(A), a third-degree felony. After Pettiford pled not guilty to the
charge, a jury trial was held in February 2017, during which the State presented testimony
from the following individuals: C.F., the alleged victim; C.F.’s grandmother; C.F.’s uncle;
and an investigating police officer. The defense presented testimony from Pettiford, who
denied the alleged conduct, and from two other witnesses. After hearing the evidence,
the jury found Pettiford not guilty of the charge, and the trial court discharged him. The
State then filed a timely motion for leave to appeal in order to challenge the trial court’s
jury instructions.
II. Alleged Abuse of Discretion in Instructing the Jury
{¶ 9} The State’s sole assignment of error is as follows:
The Trial Court Abused Its Discretion by Giving Jury Instructions
Regarding the Fallacies of Memory that Represented Opinion Rather than
Law.
27729. Each opinion confronts a slightly different instruction delivered in the context of
somewhat different records. Each opinion, nonetheless, reaches the conclusion that the
trial court erred by giving the instruction, though based on different reasoning.
-5-
{¶ 10} Under this assignment of error, the State contends that the trial court’s
instructions were not supported by the law and also improperly represented a one-sided
opinion about the fallacy of memory without mentioning factors that support the reliability
of memory. Before addressing these points, we will briefly discuss the applicable legal
standards.
A. Appeal Under R.C. 2945.67
{¶ 11} As noted above, we granted the State leave to appeal under R.C.
2945.67(A), which gives us discretionary authority to hear appeals from decisions that
are adverse to the State, other than final judgments. State v. Bistricky, 51 Ohio St. 3d
157, 555 N.E.2d 644 (1990), syllabus. Even though no current case in controversy exists
due to double jeopardy principles, appellate review is nonetheless allowed where “the
underlying legal question is capable of repetition yet evading review.” Id. at 158, citing
Storer v. Brown, 415 U.S. 724, 737, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974), fn. 8. (Other
citation omitted.) This point is particularly apt here, because the trial judge has
specifically said that he will continue to instruct juries in every case as he has here.
Transcript of Proceedings (“Tr.”) p. 267.
{¶ 12} Courts have refused to allow appeal of jury instructions where the error
would be limited to the facts within a particular case, or where the State does not claim
that the instruction is an incorrect statement of law. See, e.g., State v. Gott, 6th Dist.
Lucas No. L-11-1086, 2011-Ohio-3608, ¶ 15. However, that is not the situation here, as
the State contends that the trial court’s instruction incorrectly stated the law.
Accordingly, we will consider the State’s argument.
-6-
B. Applicable Law Concerning Jury Instructions
{¶ 13} In the context of jury instructions, trial courts have certain duties under
Crim.R. 30. In the case before us, the trial court included instructions on memory during
preliminary instructions and in the final charge to the jury. Regarding preliminary
instructions, Crim.R. 30(B) provides that:
At the commencement and during the course of the trial, the court
may give the jury cautionary and other instructions of law relating to trial
procedure, credibility and weight of the evidence, and the duty and function
of the jury and may acquaint the jury generally with the nature of the case.
{¶ 14} The Supreme Court of Ohio has stressed that “Crim.R. 30(B) plays an
important part in the trial process. Preliminary instructions prepare the jury for trial
providing orientation so the jury is properly informed as to its duties and responsibilities.”
State v. Comen, 50 Ohio St.3d 206, 209, 553 N.E.2d 640 (1990).
{¶ 15} Because the trial court’s actions under this part of the rule are discretionary,
we will not disturb the court’s actions absent an abuse of discretion. State v. Valentine,
2d Dist. Montgomery No. 13192, 1992 WL 137101, *3 (June 19, 1992), citing State v.
Frost, 14 Ohio App.3d 320, 322, 471 N.E.2d 171 (11th Dist.1984). An abuse of
discretion signifies a trial court attitude that is arbitrary, unconscionable, or unreasonable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). Nonetheless,
“most instances of abuse of discretion will result in decisions that are simply
unreasonable, rather than decisions that are unconscionable or arbitrary.” AAAA Ents.,
Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553
-7-
N.E.2d 597 (1990). Decisions are unreasonable if they are unsupported by a sound
reasoning process. “It is not enough that the reviewing court, were it deciding the issue
de novo, would not have found that reasoning process to be persuasive, perhaps in view
of countervailing reasoning processes that would support a contrary result.” Id.
{¶ 16} The duties under Crim.R. 30(A) are slightly different, as this part of the rule
imposes a mandatory duty on the court. Comen at 209. Thus, after arguments have
been completed, the court must “fully and completely give the jury all instructions which
are relevant and necessary for the jury to weigh the evidence and discharge its duty as
the fact finder.” Id. at 210.
C. Preliminary Instructions Given Under Crim.R. 30(B)
{¶ 17} In the case before us, the trial court gave the jury preliminary instructions
about memory. See Tr. at pp.123-126. The court had drafted these instructions in
conjunction with Dr. Craig Stark, a neuropsychologist who had trained Ohio Common
Pleas Court Judges during a conference held in December 2016. Tr. at p. 268.
{¶ 18} The instructions on memory were given after the jury had been seated and
before opening statements were made. See Tr. at pp.123-126. At that time, the court
also gave the jury numerous other preliminary and cautionary instructions. Id. at pp. 114-
128. However, as Pettiford notes, the State failed to object to the preliminary instructions
and has waived any error about these instructions. State v. Underwood, 3 Ohio St.3d
12, 13, 444 N.E.2d 1332 (1983); State v. Cunningham, 105 Ohio St.3d 197, 2004-Ohio-
7007, 824 N.E.2d 504, ¶ 56. Since the State did object to a similar instruction at the
close of evidence, we will focus our attention on that instruction.
-8-
C. Instructions Given Under Crim.R. 30(A) at the Close of Evidence
{¶ 19} On appeal, the State contends that the trial court's instructions had no legal
support and presented a one-sided opinion. In addition, the State argues that the
instructions were irrelevant, as witness identification was not an issue. As support for
giving the instructions, Pettiford and some of the amici curiae argue that other jurisdictions
have established a scientific basis for such instructions.
{¶ 20} Before addressing these points, we note that this case involved only
competing testimony of prosecution and defense witnesses, and no issues of
identification. No physical evidence existed; instead, the dispute was about statements
one person allegedly made to the other. There were also no direct witnesses, other than
the alleged victim and the defendant. During the State's case-in-chief, the State
presented the testimony of the victim, C.F., who said that Pettiford had solicited her for
oral sex on a particular date while they both were at church, and the testimony of the
victim's grandmother, who both supported and contradicted the victim in certain respects.
{¶ 21} During the defense case, Pettiford denied that he was at church on the day
in question, but also said that the incident had occurred a week earlier. According to
Pettiford, C.F. approached him at church and asked him to give her money in exchange
for sexual contact. Pettiford, who was acquainted with C.F.'s family, became angry and
told C.F. that he was going to tell her family what she had said. According to Pettiford,
the incident was not reported to police until the following week. Pettiford also presented
a witness who offered some support for Pettiford's version of the incident. And finally,
the State presented rebuttal testimony from two witnesses (a police officer and the victim's
-9-
uncle), that was of little assistance.
{¶ 22} As was noted, Crim.R. 30(A) imposes a mandatory duty on the court after
arguments are completed. At that time, the court must “fully and completely give the jury
all instructions which are relevant and necessary for the jury to weigh the evidence and
discharge its duty as the fact finder.” Comen, 50 Ohio St.3d at 210, 553 N.E.2d 640.
{¶ 23} After the parties finished presenting evidence, the trial court held a
conference to discuss the proposed jury charge. As part of the charge, the court
included many of the same “memory” instructions that it had given as part of the
preliminary instructions. This time, the State did object, contending that the charge was
not a standard jury charge from Ohio Jury Instructions (“OJI”), and that the State could
not find case law supporting the instruction. See Tr. at p. 266.
{¶ 24} At that point, the trial court agreed that the proposed “memory” charge was
not in OJI and remarked that the court was “ahead of the curve on this one.” Id. at p.
267. The court then made the following comments:
All right. Let me state for the record that this instruction or
something like it is going to be given by me in every single case going
forward and that is because it is painfully obvious that the science behind
the evaluation of human memory has long understood everything as set
forth in that instruction that was talked about by [the prosecutor]. And that
is that memory is imperfect. And how it works.
People mistakenly think it works like a video camera. You can just
call up memories and they’re precise and they’re accurate and that ain’t [sic]
true. And the evidence has established it’s not true and everybody knows
-10-
it’s not true. But we go through this I’ll call it illusion when we try cases that
memory is somehow imperfect – or perfect – or that people when they recall
precise detail that they’re more credible than people who don’t. And the
fact of the matter is it’s just not true.
And we went through training – we, being the Common Pleas Judges
of the State of Ohio – went through training in December at the winter
meetings in which I believe his name is Craig Stark (phonetic) who is from
U.C. – that’s University of California – Santa Cruz and he’s a human
memory expert. I believe he’s a neuropsychologist. And these
instructions were developed by me in conjunction with him and his review
of the proposed language that you see here.
And I also note that where you might find support for these
instructions is in the Commonwealth of Massachusetts and the State of New
Jersey which are both on the cutting edge of jury instructions in the work
that they’ve done with psychologists about how human memory works.
So I note the State’s objection. It’s overruled. And the State’s
counsel can inform your colleagues that, at least in cases that get tried in
my court, we’re using that instruction.
Tr. at pp. 267-268.
{¶ 25} The court then instructed the jury as follows (while eliminating some parts
of its preliminary instruction):
Importantly, imperfect memory is the norm. Memory is imperfect
and susceptible to distortion and loss because human memory does not
-11-
work like a video camera accurately recording events we see and hear so
that we may simply review and inspect them later. Rather, memory is an
adaptive process based upon reconstruction itself based upon a witness’
biases and experiences.
Memory is not infallible and should not be treated as such. For
example, eyewitness testimony plays a role in roughly 75 percent of all
cases in which individuals are wrongfully convicted as later proven
conclusively by DNA evidence.
Errors in memory are driven by bias and experience because human
brains are geared to look for regularities in the world. Indeed, people will
actually remember nonexistent information based upon their expectations.
Eyewitnesses, jurors and judges are not immune to this reality. This
is not abnormal. If we think an event should have happened in a certain
way on the basis of our previous experiences, we are likely to think that the
event did, indeed, happen in that fashion even when it did not.
We have known for decades that the passage of time between
experiencing an event and later recalling it adversely affects accurate recall
of the memory. This is because recent memories compete with older
memories at the time of retrieval.
And simply retrieving a memory makes it subject to alteration or even
elimination. For example, memory distortions may occur unconsciously
merely with retelling.
Repeated questioning about an event can increase a witness’
-12-
confidence in the accuracy of their memory. Leading questions can
increase the occurrence of false memories. Misleading questions can
imply facts not actually presented into evidence by a witness.
Cross-racial bias adversely affects memory. A reduction in
accuracy when identifying faces of a race or ethnic background different
from one’s own.
The general belief that confident detailed memories are always
accurate and reliable is contrary to research suggesting that the opposite is
possible, that confidently recalled memories can sometimes be inaccurate
and that real memories are not always highly confident or detailed.
Often, peripheral details of an event such as clothing worn by a
perpetrator are of low importance and not often recalled.
In weighing eyewitness testimony, jurors should determine whether
it can be corroborated by other evidence. In sum, eyewitness memory
should not be considered indelible even if the events were traumatic.
Witness’ biases and experiences will change over time, new information or
misinformation can alter the memory. A witness’ confidence and accuracy
is no guarantee that the memory is, indeed, accurate because humans have
a tendency to fill in gaps in any given memory.
Tr. at p. 274-276.
{¶ 26} While the trial court has a mandatory duty under Crim.R. 30(A) to give the
jury all relevant and necessary instructions before argument, the court’s decision on what
jury instructions are given is still left to the court’s sound discretion. Comen, 50 Ohio
-13-
St.3d at 209, 553 N.E.2d 640; State v. Guster, 66 Ohio St.2d 266, 271, 421 N.E.2d 157
(1981).
{¶ 27} Most appeals related to jury instructions center on a trial court’s refusal to
give a requested instruction or on challenges to choices among competing instructions.
This case involves a somewhat unusual situation in which a trial court decided to tailor its
own instructions.
{¶ 28} In Guster, the Supreme Court of Ohio noted that “a court's instructions to
the jury should be addressed to the actual issues in the case as posited by the evidence
and the pleadings. * * * Abstract rules of law or general propositions, even though correct,
ought not to be given unless specifically applicable to facts in issue.” Guster at 271.
{¶ 29} As noted, the State contends that the court’s instructions were opinions and
were also irrelevant because this case did not involve identification issues, which are
addressed by the instructions. In addition, the Victim Justice Center contends that,
because the jury instructions contained information outside the “presented evidence,” the
instructions were simply judicial testimony, which is prohibited under Evid.R. 605.
According to the Victim Justice Center, the trial court also provided “expert testimony” in
violation of Evid.R. 702.
{¶ 30} Taking the last two points first, Evid.R. 605 states that “[t]he judge presiding
at the trial may not testify in that trial as a witness.” The reason for preventing judges
from testifying is “because it is unnecessary, prejudicial to one party, and could reflect
adversely on the integrity or impartiality of the judiciary.” Hirschberger v. Silverman, 80
Ohio App.3d 532, 540, 609 N.E.2d 1301 (6th Dist.1992). See also State v. Spaulding,
151 Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 139. Evid.R. 702 further requires
-14-
that experts be qualified and that their testimony be “based on reliable scientific, technical,
or other specialized information.” Evid.R. 702(B) and (C).
{¶ 31} In our opinion, the trial court did not “testify” in violation of these rules.
While the court’s methods were unorthodox, there was no indication that the court testified
in the capacity of a witness or that the jury interpreted the court’s actions as such. Cases
involving Evid.R. 605 typically involve attempts to obtain direct sworn testimony from a
judge who has presided in a case. See, e.g., State v. Beitzel, 5th Dist. Tuscarawas No.
93AP050036, 1994 WL 313737, *2 (June 14, 1994) (defendant was not allowed to call
judge who had presided at preliminary hearing to testify as witness at trial).
{¶ 32} Furthermore, the trial court did advance a legal basis for its instructions, i.e.,
that other jurisdictions had considered scientific research on memory and had adopted
similar instructions. Tr. at p. 268. As a result, the real issue is whether the court’s legal
basis was correct. A corollary point is whether the legal basis should be adopted, even
if it might be correct.
D. Analysis of Legal Basis for the Court’s Instructions
{¶ 33} In its discussion, the trial court generally referenced decisions in New
Jersey and Massachusetts without citing specific cases. The leading case in New Jersey
is State v. Henderson, 208 N.J. 208, 27 A.3d 872 (2011). In Henderson, the New Jersey
Supreme Court considered evidence from a Special Master that it had appointed to
evaluate scientific and other evidence pertaining to eyewitness identification. The court
adopted much of the Special Master’s report, after the Master had “presided over a
hearing that probed testimony by seven experts and produced more than 2,000 pages of
-15-
transcripts along with hundreds of scientific studies.” Id. at 217-18. The parties and
amici produced more than 360 exhibits, including “more than 200 published scientific
studies on human memory and eyewitness identification.” Id. at 229. In addition, seven
expert witnesses testified, including three well-credentialed eyewitness identification
experts, three law professors, and a county prosecutor who had also trained law
enforcement personnel internationally and locally. Id. at 229-230.
{¶ 34} After finding the scientific evidence reliable, the New Jersey Supreme Court
stated that it “was convinced from the scientific evidence in the record that memory is
malleable, and that an array of variables can affect and dilute memory and lead to
misidentification.” Id. at 218.
{¶ 35} Some of the discussion in Henderson is irrelevant, as it focuses on
eyewitness identification, which is not at issue here. Specifically, there was no dispute
that the alleged victim and Pettiford were acquainted. However, the Henderson court
did discuss scientific findings on memory that may be pertinent for our discussion.
{¶ 36} As background, the court in Henderson noted that the current framework
for admissibility of eyewitness identification was derived from the 1977 opinion in Manson
v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Henderson at 237.
Under Manson, a two-step analysis is used to decide admissibility. First, the court
decides if an identification procedure was “impermissibly suggestive.” If so, the court
then decides “whether the objectionable procedure resulted in a ‘very substantial
likelihood of irreparable misidentification.’ ” Id. at 238, quoting State v. Madison, 109
N.J. 223, 232, 536 A.2d 254 (1988) (which had summarized the two-step procedure in
Manson). Identification testimony can be admitted if it is reliable despite its
-16-
suggestiveness. Id. Ohio has adopted the same type of approach. See, e.g., State v.
Lott, 51 Ohio St.3d 160, 175, 555 N.E.2d 293 (1990); State v. Parker, 53 Ohio St.3d 82,
87, 558 N.E.2d 1164 (1990); State v. Bates, 110 Ohio St.3d 1230, 2006-Ohio-3667, 850
N.E.2d 1208, ¶ 8-9.
{¶ 37} To assess reliability, both Ohio and New Jersey have traditionally used the
following five “Biggers” factors, which were adopted in Manson: “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.” Manson at 114,
citing Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).
Compare Bates at ¶ 9.
{¶ 38} In Henderson, the New Jersey Supreme Court commented that:
Virtually all of the scientific evidence considered on remand emerged
after Manson. In fact, the earliest study the State submitted is from 1981,
and only a handful of the more than 200 scientific articles in the record pre-
date 1970.
During the 1970s, when the Supreme Court decided Manson,
researchers conducted some experiments on the malleability of human
memory. But according to expert testimony, that decade produced only
four published articles in psychology literature containing the words
“eyewitness” and “identity” in their abstracts. By contrast, the Special
Master estimated that more than two thousand studies related to
eyewitness identification have been published in the past thirty years.
-17-
Henderson at 241-42.
{¶ 39} In a summary of its findings, the court concluded that
We are convinced from the scientific evidence in the record that
memory is malleable, and that an array of variables can affect and dilute
memory and lead to misidentifications. Those factors include system
variables like lineup procedures, which are within the control of the criminal
justice system, and estimator variables like lighting conditions or the
presence of a weapon, over which the legal system has no control. * * *
In the end, we conclude that the current standard for assessing
eyewitness identification evidence does not fully meet its goals. It does not
offer an adequate measure for reliability or sufficiently deter inappropriate
police conduct. It also overstates the jury's inherent ability to evaluate
evidence offered by eyewitnesses who honestly believe their testimony is
accurate.
Id. at 218.
{¶ 40} To address these concerns, the court noted two steps that should be taken:
(1) trial courts should weigh both “system” and “estimator” variables to decide if evidence
is admissible where suggestive procedures were used; and (2) (as pertinent here) “the
court system should develop enhanced jury charges on eyewitness identification for trial
judges to use.” Id. at 219.
{¶ 41} System variables are matters within the State’s control. They include the
following matters:
How lineup procedures are conducted.
-18-
Pre-identification instructions to witnesses.
Lineup construction.
Avoiding confirmatory feedback and recording the confidence of a witness.
Avoiding multiple viewings.
Avoiding “showups.”
Id. at 248-261.
{¶ 42} In contrast, estimator variables are factors the criminal justice system
cannot avoid. These factors include the following items:
Stress (which impairs ability to recall and make accurate identifications).
Distraction caused by “weapon focus.”
The amount of time witnesses have to observe events.
Distance and lighting conditions.
Characteristics like witness age and level of intoxication.
Disguises and changes in a perpetrator’s facial features.
The decay of memory after the lapse of time.
Racial bias (witnesses have more difficulty in making cross-race
identifications).
The effect of private actors, like co-witnesses, who share information about
what they observed or who can affect witness confidence.
The speed with which a witness makes an identification.
Id. at 261-272.
{¶ 43} Again, Henderson involved eyewitness identification rather than the more
general subject of witness testimony and memory, so some of the discussion is not
-19-
relevant here. The court did, however, discuss how memory works. In addition,
observations scattered throughout the court’s opinion are consistent with the jury
instructions in the case below us. See Henderson at 218, 231, 236, 240, 244-248, 253-
256, 267-270, 274, 285-285, and 299.
{¶ 44} After commenting on the arguments that the parties presented, the
Supreme Court of New Jersey discussed the validity of the scientific evidence and
concluded that it was both “both reliable and useful.” Id. at 283. In this regard, the court
commented that:
The research presented on remand is not only extensive, but as Dr.
Monahan [an expert] testified, it represents the “gold standard in terms of
the applicability of social science research to the law.” Experimental
methods and findings have been tested and retested, subjected to scientific
scrutiny through peer-reviewed journals, evaluated through the lens of
meta-analyses, and replicated at times in real-world settings. As reflected
above, consensus exists among the experts who testified on remand and
within the broader research community.
Id.
{¶ 45} The Supreme Court of New Jersey then concluded that the Manson
framework, which was premised on assumptions about reliability, was invalid because it
failed to provide a sufficient measure for reliability, did not deter improper practices, and
overstated a jury’s “innate ability to evaluate eyewitness testimony.” Id. at 285,
discussing Manson, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140.
{¶ 46} After discussing the reasons for these failures, the Supreme Court of New
-20-
Jersey adopted a revised system for suppression hearings, which was to be
supplemented by appropriate jury instructions if the court decided not to suppress the
evidence. Id. at 286-292. Essentially, trial courts would consider whether the defendant
had presented some evidence of suggestiveness to trigger a pretrial hearing under United
States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (commonly
referenced as a “Wade hearing”). Courts would consider this issue using the “system
variables” mentioned above. Henderson at 288-289. If the court decided at any time
that the “initial claim of suggestiveness [was] baseless,” it could end the hearing. Id. at
290.
{¶ 47} However, if “some actual proof of suggestiveness” remained after the
system variables had been reviewed, courts would consider both these variables and the
“estimator variables” to “evaluate the overall reliability of an identification and determine
its admissibility.” Id. at 291. Significantly, the court stressed that the estimator variables
were not exclusive, nor were they “frozen in time.” Instead, they could change based on
the dynamic nature of scientific research. Id. at 292. If the evidence were suppressed,
the analysis ended there. If identification evidence were not suppressed, however, either
experts or enhanced jury instructions should be used at trial. The court stressed that,
most often, jury instructions would suffice. Id. at 298-299.
{¶ 48} Following this discussion, the New Jersey Supreme Court asked the
Criminal Practice Committee and the Committee on Model Criminal Jury Charges to draft
proposed revisions to the current jury charge and submit them to the court. Id. at 299.
New model instructions were developed and went into effect in September 2012. See
-21-
State v. Sanchez-Medina, 231 N.J. 452, 466, 176 A.3d 788 (2018).2
E. Comparison of Instructions to Legal Statements in Henderson
{¶ 49} As we mentioned, statements in Henderson are consistent with or similar to
most of the statements in the trial court’s jury instructions. The following discussion
compares the trial court’s instructions with the supporting statements in Henderson.
1. “Video Camera”
{¶ 50} Trial Court:
Importantly, imperfect memory is the norm. Memory is imperfect
and susceptible to distortion and loss because human memory does not
work like a video camera accurately recording events we see and hear so
that we may simply review and inspect them later. Tr. at p. 274.
{¶ 51} Henderson:
“Research contained in the record has refuted the notion that
memory is like a video recording, and that a witness need only replay the
tape to remember what happened,” and “the witness does not perceive all
that a videotape would disclose * * *." Henderson, 208 N.J. 245 and 246,
27 A.3d 872.
2. Process of Memory
2 The model instructions (Non 2C, Identification – In Court and Out of Court
Identifications), can be found at: www.njcourts.gov/attorneys/criminalcharges.html
(accessed March 11, 2019).
-22-
{¶ 52} Trial Court:
Rather, memory is an adaptive process based upon reconstruction
itself based upon a witness’ biases and experiences. Tr. at p. 274.
{¶ 53} Henderson:
“We are convinced from the scientific evidence in the record that
memory is malleable, and that an array of variables can affect and dilute
memory and lead to misidentifications.” Henderson at 218. “The process
of remembering consists of three stages: acquisition—‘the perception of the
original event’; retention—‘the period of time that passes between the event
and the eventual recollection of a particular piece of information’; and
retrieval—the ‘stage during which a person recalls stored information.’ * * *
‘[M]emory rapidly and continuously decays; retained memory can be
unknowingly contaminated by post-event information * * *.’ ” Id. at 245-
246, citing Elizabeth F. Loftus, Eyewitness Testimony 21 (2d ed.1996).
3. Wrongful Convictions
{¶ 54} Trial Court:
“Memory is not infallible and should not be treated as such. For
example, eyewitness testimony plays a role in roughly 75 percent of all
cases in which individuals are wrongfully convicted as later proven
conclusively by DNA evidence.” Tr. at p. 274.
{¶ 55} Henderson:
“Nationwide, ‘more than seventy-five percent of convictions
-23-
overturned due to DNA evidence involved eyewitness misidentification.’ ”
Henderson at 231, quoting State v. Romero, 191 N.J. 59, 74, 922 A.2d 693
(2007). (Other citations omitted.)
4. Errors and Distortions in Memory
{¶ 56} Trial Court:
Errors in memory are driven by bias and experience because human
brains are geared to look for regularities in the world. Indeed, people will
actually remember nonexistent information based upon their expectations.
Eyewitnesses, jurors and judges are not immune to this reality. This
is not abnormal. If we think an event should have happened in a certain
way on the basis of our previous experiences, we are likely to think that the
event did, indeed, happen in that fashion even when it did not.” Tr. at p.
274-275.
{¶ 57} Henderson:
Henderson discusses scientific studies that indicate how memory can be
“distorted, contaminated and even falsely imagined.” Henderson at 245-247
(discussing, among other things, how memory can be influenced by how a witness is
questioned). Additional support is found in Henderson's discussion of scientific studies
showing how memory can be affected by statements of others and prior experience - in
other words, crediting information imparted by others due to past experiences with other
persons or sources. Id. at 268-269.
-24-
5. Passage of Time
{¶ 58} Trial Court:
We have known for decades that the passage of time between
experiencing an event and later recalling it adversely affects accurate recall
of the memory. This is because recent memories compete with older
memories at the time of retrieval. Tr. at p. 275.
{¶ 59} Henderson:
The above statements from the trial court are consistent with a statement in
Henderson that cites a 1996 study. This study noted that “[t]he process of remembering
consists of three stages: acquisition-‘the perception of the original event’; retention-‘the
period of time that passes between the event and the eventual recollection of a particular
piece of information’; and retrieval-the ‘stage during which a person recalls stored
information.’ ” Henderson at 245, quoting Elizabeth F. Loftus, Eyewitness Testimony 21
(2d ed.1996). The court went on to note that memory can be distorted, contaminated
and falsely imagined at each stage. Id. See also id. at 267 (discussing studies
indicating how “the more time that passes, the greater the possibility that a witness’
memory of a perpetrator will weaken”).
6. Unconscious Memory Distortions
{¶ 60} Trial Court:
And simply retrieving a memory makes it subject to alteration or even
elimination. For example, memory distortions may occur unconsciously
merely with retelling. Tr. at p. 275.
-25-
{¶ 61} Henderson:
The above statement is consistent with the following statements in Henderson:
We presume that jurors are able to detect liars from truth tellers. But
as scholars have cautioned, most eyewitnesses think they are telling the
truth even when their testimony is inaccurate, and “[b]ecause the
eyewitness is testifying honestly (i.e., sincerely), he or she will not display
the demeanor of the dishonest or biased witness.” See Jules Epstein, The
Great Engine that Couldn't: Science, Mistaken Identity, and the Limits of
Cross-Examination, 36 Stetson L.Rev. 727, 772 (2007). Instead, some
mistaken eyewitnesses, at least by the time they testify at trial, exude
supreme confidence in their identifications. Henderson at 236, 27 A.3d
872.
The court also noted in Henderson that “jurors do ‘not evaluate eyewitness
memory in a manner consistent with psychological theory and findings.’ ” Id. at 274,
quoting Brian L. Cutler et al., Juror Sensitivity to Eyewitness Identification Evidence, 14
Law & Hum. Behav. 185, 190 (1990).
7. Witness Confidence
{¶ 62} Trial Court:
Repeated questioning about an event can increase a witness’
confidence in the accuracy of their memory. Leading questions can
increase the occurrence of false memories. Misleading questions can
imply facts not actually presented into evidence by a witness. Tr. at p. 275.
-26-
{¶ 63} Henderson:
“[T]his Court has already acknowledged that accuracy and
confidence ‘may not be related to one another at all.’ ” Id. at 236, quoting
Romero, 191 N.J. at 75, 922 A.2d 693. See also: “confirmation can reduce
doubt and engender a false sense of confidence in a witness. Feedback
can also falsely enhance a witness' recollection of the quality of his or her
view of an event.” Id. at 253. “Private actors can also affect witness
confidence.” Id. at 270. In addition, Henderson discussed at length how
witness memories can be distorted by the way in which questions are asked
or by inclusion of information that is false. Id. at 246-247.
8. Cross-Racial Bias
{¶ 64} Trial Court:
Cross-racial bias adversely affects memory. A reduction in
accuracy when identifying faces of a race or ethnic background different
from one’s own. Tr. at p. 275.
{¶ 65} Henderson:
“ ‘A cross-racial identification occurs when an eyewitness is asked to identify a
person of another race.’ ” Henderson at 267, quoting State v. Cromedy, 158 N.J. 112,
120, 727 A.2d 457 (1999). Henderson noted that a meta-analysis done after Cromedy
(involving 39 studies and over 5,000 identifications) had confirmed that witnesses may
have more difficulty making cross-racial identifications and this can be factor in reliability.
Id. Later, Henderson discussed various cases and scientific evidence involving cross-
-27-
racial identification. Id. at 284-285. Ultimately, the court required that its previously
adopted cross-racial identification charge should be given “whenever cross-racial
identification is in issue at trial.” Id. at 299.3
9. Accuracy of Detailed Memories
{¶ 66} Trial Court:
The general belief that confident detailed memories are always
accurate and reliable is contrary to research suggesting that the opposite is
possible, that confidently recalled memories can sometimes be inaccurate
and that real memories are not always highly confident or detailed. Tr. at
p. 275-276.
{¶ 67} Henderson:
“[L]ab studies have shown that eyewitness confidence can be influenced by
factors unrelated to a witness' actual memory of a relevant event” * * * [and]
“accuracy and confidence ‘may not be related to one another at all.’ ”
Henderson at 236, quoting Romero, 191 N.J. at 75, 922 A.2d 693. Further,
“jurors do ‘not evaluate eyewitness memory in a manner consistent with
psychological theory and findings.’ ” Id. at 274, quoting Cutler, Juror
Sensitivity to Eyewitness Identification Evidence, 14 Law & Hum. Behav. at
190; see also id. at 236 and 253-256 (discussing the distinction between
witness confidence and mistake in identification as well as factors that can
3 The cross-racial charge is part of the New Jersey model identification charge referenced
in footnote 1. In the case before us, the victim and Pettiford were of different races. See
Tr. at p. 75. However, as we noted, identification was not a disputed issue at trial.
-28-
influence witness confidence unrelated to actual memory).
10. Peripheral Details
{¶ 68} Trial Court:
Often, peripheral details of an event such as clothing worn by a
perpetrator are of low importance and not often recalled. Tr. at p. 276.
{¶ 69} Henderson:
Henderson did not specifically discuss clothing. However, it did discuss falsely
imagined details, including experiments where researchers inserted false details that
were insignificant into information or discussions about films or videos subjects had
watched. This caused subjects to insert the false details into their memory of the
incidents they had seen. Henderson at 247, 269-270.
11. Corroboration
{¶ 70} Trial Court:
In weighing eyewitness testimony, jurors should determine whether
eyewitness testimony can be corroborated by other evidence. In sum,
eyewitness memory should not be considered indelible even if the events
were traumatic. Witness’ biases and experiences will change over time,
new information or misinformation can alter the memory. A witness’
confidence and accuracy is no guarantee that the memory is, indeed,
accurate because humans have a tendency to fill in gaps in any given
memory. Tr. at p. 136.
-29-
{¶ 71} Henderson:
Comments in Henderson about confidence and misinformation have already been
discussed. Concerning the trial court’s instruction in the first sentence about weighing
eyewitness testimony, Henderson talks about “corroboration” in the context of cross-racial
identification, but not in terms of weighing evidence. Henderson at 299.
The second sentence concerning trauma is consistent with Henderson's
observation that “studies have shown consistently that high degrees of stress actually
impair the ability to remember.” Id. at 244, citing Kenneth A. Deffenbacher et al., A Meta–
Analytic Review of the Effects of High Stress on Eyewitness Memory, 28 Law & Hum.
Behav. 687, 687, 699 (2004).
{¶ 72} Having connected almost all the trial court’s instructions to specific legal
statements in Henderson, we conclude that the trial court did not simply express its own
opinions, but did have a legal basis for the instructions. Again, whether those
instructions should be adopted is a different issue.
F. Massachusetts Authority
{¶ 73} As we noted, the trial court also relied on unspecified Massachusetts
authority. In Commonwealth v. Gomes, 470 Mass. 352, 22 N.E.3d 897 (2015), the
Supreme Court of Massachusetts issued a provisional jury instruction regarding
eyewitness identification evidence, and it invited comments before it declared it a model
jury instruction. Id. at 354. The court noted that it had “the benefit of the Report and
Recommendations of the Supreme Judicial Court Study Group on Eyewitness Evidence
-30-
(Study Group Report), and the comments in response to it.” (Footnotes omitted.) Id.4
Based on these studies and comments, the court concluded that “there are scientific
principles regarding eyewitness identification that are ‘so generally accepted’ that it is
appropriate in the future to instruct juries regarding these principles so that they may apply
the principles in their evaluation of eyewitness identification evidence.” Id.
{¶ 74} In Gomes, the court stated that “a principle is ‘so generally accepted’ that it
is appropriate to include in a model eyewitness identification instruction where there is a
near consensus in the relevant scientific community adopting that principle.” Gomes at
366-367. The court then said that “[a]fter reviewing the scholarly research, analyses by
other courts, amici submissions, and the Study Group Report and comments, we
conclude that there are various principles regarding eyewitness identification for which
there is a near consensus in the relevant scientific community.” Id. at 367. As a result,
the court decided to revise its previous model instruction to include five principles that
were accepted concerning eyewitness identification. Id. at 369-375.5
{¶ 75} These principles included:
i. Human memory does not function like a video recording but is a
complex process that consists of three stages: acquisition, retention, and
4 The Supreme Court of Massachusetts had previously recognized that while eyewitness
identification is an invaluable law enforcement tool, it is also the “ ‘greatest source of
wrongful conviction.’ ” Gomes, 470 Mass. at 360, 22 N.E.3d 897, quoting
Commonwealth v. Walker, 460 Mass. 590, 604, 953 N.E.2d 195 (2011), fn. 16. As a
result, the court had convened a study group to consider the issue.
5 The model instructions were adopted in November 2015. See Commonwealth v.
Herndon, 475 Mass. 324, 328, 56 N.E.3d 814 (2016), fn. 11. The instructions can be
found at: www.mass.gov/files/documents/2016/08/wt/9160-defenses-identification.pdf
(accessed on March 11, 2019).
-31-
retrieval.
***
ii. An eyewitness's expressed certainty in an identification, standing
alone, may not indicate the accuracy of the identification, especially where
the witness did not describe that level of certainty when the witness first
made the identification
***
iii. High levels of stress can reduce an eyewitness's ability to make
an accurate identification.
***
iv. Information that is unrelated to the initial viewing of the event,
which an eyewitness receives before or after making an identification, can
influence the witness's later recollection of the memory or of the
identification.
***
v. A prior viewing of a suspect at an identification procedure may
reduce the reliability of a subsequent identification procedure in which the
same suspect is shown.
Id. at 369-375.
{¶ 76} The provisional instructions set forth in Gomes were less detailed than
those of New Jersey, but the approaches of these jurisdictions are similar in terms of
relying on accepted scientific principles related to memory and identification. 6
6 Massachusetts later modified its provisional jury instruction on cross-racial identification
-32-
Furthermore, Massachusetts has indicated that its final model instruction as adopted “is
very similar to the model jury instruction in New Jersey.” Commonwealth v. McWilliams,
473 Mass. 606, 619, 45 N.E.3d 94 (2016), fn. 5.
G. Conflict Among Jurisdictions
{¶ 77} Notably, there are conflicts in the law about eyewitness identification. The
case before also us does not specifically involve eyewitness identification; instead, the
trial court’s instructions simply were a general discussion of the ways in which memory
can be fallible.
{¶ 78} The United States Supreme Court, itself, has said that “[w]e do not doubt
either the importance or the fallibility of eyewitness identifications.” Perry v. New
Hampshire, 565 U.S. 228, 245, 132 S.Ct. 716, 181 L.Ed.2d 694 (2012). Despite this, the
court concluded that “fallibility of eyewitness identification does not, without the taint of
improper state conduct, warrant a due process rule requiring a trial court to screen such
evidence for reliability before allowing the jury to assess its creditworthiness.” Id. Perry
involved the issue of whether the taint of private conduct should trigger such a due
process rule, so it is not strictly pertinent. However, the court has recognized that
eyewitness identification (and, therefore, memory) can be fallible.
{¶ 79} Some other jurisdictions have agreed with Henderson, 208 N.J. 208, 27
and provided guidance about when it should be given. (The new guidance was that it
should always be given unless the parties agreed there was no cross-racial identification.)
Commonwealth v. Bastaldo, 472 Mass. 16, 18, 32 N.E.3d 873 (2015). For the reasons
already expressed, this type of instruction has little relevance to the case before us. We
note that Idaho has rejected a cross-racial jury instruction proposed by the American Bar
Association's Criminal Justice Section, at least based on the case before it. State v.
Doap Deng Chuol, 2014 S.D. 33, 849 N.W.2d 255, ¶ 33.
-33-
A.3d 872, about the reliability of scientific evidence on the subject of eyewitness
identification. For example, in State v. Harris, 330 Conn. 91, 191 A.3d 119 (2018), the
Connecticut Supreme Court modified the Biggers framework to conform to recent
developments in law and social science, endorsed reliability factors it had previously
identified in State v. Guilbert, 306 Conn. 218, 49 A.3d 705 (2012), and adopted
Henderson’s burden-shifting framework. Id. at 134.
{¶ 80} Other cases in agreement include: State v. Lawson, 352 Or. 724, 291 P.3d
673 (2012); Minor v. United States, 57 A.3d 406, 422, fn. 11 (D.C.2012); State v. Almaraz,
154 Idaho 584, 595, 301 P.3d 242 (2013) (agreeing with New Jersey Supreme Court and
finding that “extensive research convincingly demonstrates the fallibility of eyewitness
identification testimony and pinpoints an array of variables that are most likely to lead to
a mistaken identification”); Tillman v. State, 354 S.W.3d 425, 441-443
(Tex.Crim.App.2011) (discussing Henderson and concluding that expert testimony on
eyewitness identification is reliable); People v. Lerma, 2016 IL 118496, 47 N.E.3d 985, ¶
24 (Ill.) (recognizing that eyewitness identification “research is well settled, well
supported, and in appropriate cases a perfectly proper subject for expert testimony”);
Young v. State, 374 P.3d 395, 417 (Alaska 2016) (following Henderson and Lawson, and
replacing the Biggers factors with lists drawing on system and estimator variables).
{¶ 81} In Commonwealth v. Walker, 625 Pa. 450, 92 A.3d 766 (2014), the
Pennsylvania Supreme Court reversed its prior ban on expert testimony on eyewitness
identification. The court commented that “we embrace the extensive research and
studies noted above (and the experience of all or nearly all federal circuits, 44 states, and
the District of Columbia) only to the extent they serve as a foundation to highlight a
-34-
significant problem in our criminal justice system regarding eyewitness identification and
to support modification of the current absolute ban [in Pennsylvania] of any expert
testimony in this limited area.” Id. at 494. See also State v. Mahmoud, 2016 ME 135,
147 A.3d 833, ¶ 14 (footnote omitted) (“In light of the voluminous body of scientific
research that has emerged regarding the reliability of eyewitness identification, and the
subsequent evolving trend among both state and federal courts to instruct juries on this
matter, we conclude that it is permissible, where relevant, to instruct jurors on the
reliability of eyewitness identification. We do not, however, conclude that the use of an
eyewitness identification instruction is required in every case involving an eyewitness
identification. For example, the eyewitness identification instruction would not ordinarily
be generated in instances when the identified person is already known to the witness”).
{¶ 82} Other courts disagree or have not yet directly considered the issue. See,
e.g., State v. Allen, 176 Wash.2d 611, 624, 294 P.3d 679 (2013) (concluding that “a
cautionary cross-racial identification instruction” would not have added to the safeguards
operating in that particular case, which involved eyewitness identification based on
general physique, apparel, and sunglasses, not on facial features); Batiste v. State, 121
So.3d 808, 855, fn. 7 (Miss.2013) (declining to adopt New Jersey’s constitutional
standards for evaluating admissibility of witness identification testimony); Smiley v. State,
442 Md. 168, 179, 111 A.3d 43 (2015) (declining to adopt theories and methodologies in
Henderson for reviewing whether extrajudicial identifications are suggestive); State v.
Davis, 131 A.3d 679, 696, fn. 13 (R.I.2016) (noting awareness of “growing concern in
other jurisdictions with reliance on eyewitness identification testimony, the growing body
of scientific and psychological studies regarding the questionable accuracy of the
-35-
accounts of eyewitnesses, and the efforts made to prevent a miscarriage of justice.”
However, the court did not decide this issue because it was not raised in the trial court).
{¶ 83} In Corbin v. United States, 120 A.3d 588 (D.C. Cir.2015), the defendant-
appellant contended that the trial court had abused its discretion by rejecting a proposed
jury instruction that was based on the New Jersey eyewitness identification instructions.
Id. at 605. According to the appellant, the trial court erred because it believed “it ‘could
not instruct the jury on scientific research.’ ” Id. However, the court of appeals (D.C.’s
highest court) disagreed. The court stated that:
In our view, the trial court's choice of language provides no indication
that it considered itself constrained to reject the scientific research outright.
The trial court did not say that it was “precluded” or “prohibited,” or that
“case law clearly requires exclusion” of such scientific research. Rather,
after hearing defense counsel's arguments, the trial court concluded that it
would not be “appropriate” to instruct the jury about research on eyewitness
identification that the parties had not presented to the jury. In choosing to
“stick with the Red Book” instructions, the trial court recognized that the
proposed instruction differed, in that it extensively referenced research in
an “evolving area of law” that was not before the jury, and this difference
provided reasonable cause for concern. * * * The trial court's statement that
this research “could come before the jury in the form of evidence and it could
be rebutted by the government by contrary studies” expresses a clear
discretionary preference for the adversary process and constitutes a
thoughtful exercise of discretion. This record does not support appellant's
-36-
contention that the trial judge was under the legally erroneous view that he
was precluded from using the proposed instruction.
Id. at 607.7
{¶ 84} We agree with Corbin’s approach. At this stage of legal development in
Ohio, the memory science pertaining to witness identification is the proper subject for
expert testimony rather than the use of additional or disputed jury instructions. Here,
neither side presented expert testimony, nor did the court call an expert witness using
appropriate procedures under Evid.R. 614. Moreover, the trial court far exceeded the
subject of the science of witness memory as it relates to identification. This is where the
precedent exists, not in cases where, as here, identification is not an issue.
{¶ 85} “Evid.R. 614(A) and (B) provide that the court may call witnesses or
interrogate witnesses, in an impartial manner, whether called by itself or by a party.
During a trial, the judge may, in the interest of justice, act impartially in developing facts
germane to an issue of fact to be determined by the jury.” State v. Davis, 79 Ohio App.3d
450, 454, 607 N.E.2d 543 (4th Dist.1992). A related jury instruction would be improper
in cases where an expert testified, because the court would appear to be vouching for the
expert.
{¶ 86} This is done in the court’s sound discretion, and as “ ‘long as the court
7 The “Red Book” contained criminal jury instructions for the District of Columbia. In a
footnote, the court of appeals commented that “The District of Columbia's Jury
Instructions Committee acknowledged the Henderson decision and recent social science
studies on eyewitness identification in a comment to its 2013 revision. See Criminal Jury
Instructions for the District of Columbia (‘Red Book’), No. 9.210 (5th ed. rev. 2013). It
noted, however, that ‘[t]he Committee is not in agreement over whether, and under what
circumstances, additional instruction is necessary that would warn a jury to take care in
appraising identification testimony.’ * * * This comment was not included in the 2012
revision that was available to the trial judge in the present case.” Corbin at 605, fn. 23.
-37-
maintains its impartiality and does not assume the role of an advocate, such practice does
not prejudice the rights of the defendant to a fair and impartial trial.’ ” State v. Adams,
62 Ohio St.2d 151, 157, and fn. 10, 404 N.E.2d 144 (1980), quoting State v. Weind, 50
Ohio St.2d 224, 235-236, 364 N.E.2d 224 (1977). “Rule 614(a) simply codifies a judge's
well-established common law authority to call witnesses.” U.S. Marshals Serv. v. Means,
741 F.2d 1053, 1058 (8th Cir.1984) (discussing Fed.R.Evid.614(a), which is identical to
Ohio’s rule). See also 1989 Staff Notes to Evid.R. 614 (indicating that “Rule 614(A)
conforms to prior Ohio law where it has been well established that the authority to call
witnesses is within the inherent power of the court, the court having a fundamental duty
to arrive at the truth”).
{¶ 87} The Supreme Courts of New Jersey and Massachusetts formulated their
witness identification instructions after receiving input from either a special master or
study groups. The Supreme Court of Ohio has not provided us with precedent
supporting the use of such instructions. See State v. Ranzy, 8th Dist. Cuyahoga No.
97275, 2012-Ohio-2763, ¶ 33 (noting that “Henderson is not the law in Ohio, and our
supreme court has yet to create any precedent that would allow us as an intermediate
court to deviate from State v. Broom, 40 Ohio St.3d 277, 284, 533 N.E.2d 682 (1988)”).
Accordingly, we agree with the State that the trial court erred in instructing the jury as it
did in this case, and the State’s assignment of error is sustained.
{¶ 88} As a final matter, we note that the Innocence Project has included an
affidavit from an expert in support of its brief. However, “[a] reviewing court cannot add
matter to the record before it, which was not a part of the trial court's proceedings, and
then decide the appeal on the basis of the new matter.” State v. Ishmail, 54 Ohio St.2d
-38-
402, 377 N.E.2d 500 (1978), paragraph one of the syllabus.
III. Conclusion
{¶ 89} We have sustained the State’s assignment of error. However, this
judgment has no impact on Rac’s final judgment of acquittal, because he cannot be twice
placed in jeopardy. State v. Pawelski, 178 Ohio App.3d 426, 2008-Ohio-5180, 898
N.E.2d 85, ¶ 28 (2d Dist.), citing State v. Hensley, 2d Dist. Montgomery No. 18886, 2002
WL 628626 (April 19, 2002).
.............
FROELICH, J., concurring:
{¶ 90} I concur that the trial court erred and abused its discretion in giving the
memory and identification jury instructions in this case. However, I disagree with the
language in the majority opinion suggesting that definitive Supreme Court precedent is
always necessary before a court may instruct the jury concerning memory or identification
other than precisely as now contained in Ohio Jury Instructions. See State v. Rac, 2d
Dist. Montgomery No. 27536.
TUCKER, J., concurring:
{¶ 91} I concur in Judge Welbaum’s opinion and in Judge Froelich’s concurring
opinion.
-39-
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Michael T. Gmoser
Lina N. Alkamhawi
Sarah C. Larcade
Elizabeth A. Well
Marcy A. Vonderwell
John K. Carroll
Alexis Agathocleous
Elizabeth Berry
Hon. Steven K. Dankof
State v. Pettiford
Combined Opinion