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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
01-OCT-2019
08:04 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
---oOo---
________________________________________________________________
STATE OF HAWAI‘I,
Respondent/Plaintiff-Appellee,
vs.
BRONSON KANEAIAKALA,
Petitioner/Defendant-Appellant.
_____________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CR. NO. 15-1-0108)
OCTOBER 1, 2019
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
This appeal arises from an impermissibly suggestive field
show-up identification. Midday on Saturday, January 24, 2015,
Mari Laraway (“Laraway”) was walking with her minor son from
their apartment building on Date Street to her car. As she
walked alongside the apartment building, she saw a man crouching
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beneath the window of a ground-floor apartment. Once at her
car, she looked up and saw the man entering the apartment
through a window. Laraway called 911 to report the man’s
activity.
Honolulu Police Department (“HPD”) officers later found
Petitioner/Defendant-Apellant Bronson Kaneaiakala
(“Kaneaiakala”) naked in the laundry room of the apartment
building with items missing from the apartment, and they
arrested him. Two-and-a-half hours after she had seen a man
enter the ground-floor apartment through a window, Laraway met
the officers on the street outside the apartment building.
Kaneaiakala was shirtless, handcuffed, and standing beside a
police car, surrounded by police. Laraway looked at Kaneaiakala
and told the officers she was “almost positive” Kaneaiakala was
the man she saw at the window earlier. After she had identified
Kaneaiakala as the suspect, Laraway was asked to complete a
suspect description form and she gave the officers a written
statement.
The State of Hawaiʻi (“State”) charged Kaneaiakala with one
count of Burglary in the First Degree in violation of Hawai‘i
Revised Statutes (“HRS”) § 708-810(1)(c) (2014).1 Before trial,
1
HRS § 708-810(1)(c) provides as follows:
(1) A person commits the offense of burglary in the first
degree if the person intentionally enters or remains
(continued. . .)
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Kaneaiakala filed a motion to suppress Laraway’s show-up
identification.
The Circuit Court of the First Circuit (“circuit court”)2
conducted a hearing on the motion to suppress. The State
stipulated that the procedure employed by HPD was impermissibly
suggestive. The circuit court found Laraway’s identification
nonetheless sufficiently reliable and denied the motion. At
jury trial, the State presented testimony from Laraway, one of
the residents of the burglarized apartment, and two police
officers. The jury found Kaneaiakala guilty as charged.
On appeal, the Intermediate Court of Appeals (“ICA”)
affirmed the conviction and, in a summary disposition order,
held that the circuit court did not err in concluding that
Laraway’s identification was sufficiently reliable for admission
in evidence and consideration by the jury. State v.
Kaneaiakala, No. CAAP-XX-XXXXXXX at 2-5 (App. Nov. 7, 2017)
(SDO). On certiorari, Kaneaiakala argues Laraway’s
(continued. . .)
unlawfully in a building, with intent to commit therein a
crime against a person or against property rights, and:
. . . .
(c) The person recklessly disregards a risk that the building is
the dwelling of another, and the building is such a dwelling.
2
The Honorable Shirley M. Kawamura presided over the hearing on
Kaneaiakala’s motion to suppress and jury trial.
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identification should have been suppressed because it was
unreliable and tainted by HPD’s show-up procedure.
As Justice Brennan stated in 1967, “[t]he vagaries of
eyewitness identification are well-known; the annals of criminal
law are rife with instances of mistaken identification.” United
States v. Wade, 388 U.S. 218, 228 (1967). In the half-century
since Wade, science on human memory has advanced even further,
and it has become widely accepted that unreliable eyewitness
identifications are the leading cause of wrongful convictions.
Recognizing this, in State v. Cabagbag, 127 Hawai‘i 302,
313-14, 277 P.3d 1027, 1038-39 (2012), we held that when the
trustworthiness or reliability of eyewitness identification is
central to a case, trial courts must give a specific jury
instruction when requested by the defense to focus the jury’s
attention on the reliability of the identification. 127 Hawaiʻi
at 313-14, 277 P.3d at 1038-39. We also proposed a model jury
instruction to address reliability concerns with eyewitness
identifications, including thirteen reliability factors that a
judge should consider including in a jury instruction. 127
Hawai‘i at 314, 277 P.3d at 1039.
By ruling that trial courts no longer had discretion to
reject defense requests for a jury instruction regarding the
trustworthiness of eyewitness identifications, we abrogated the
holding in State v. Padilla, 57 Haw. 150, 552 P.2d 357 (1976),
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that a trial court had discretion to decide whether to give such
an instruction.
While overruling Padilla on that point in Cabagbag, we did
not address another holding of Padilla. In Padilla, we also
adopted a test set out by the United States Supreme Court in
Neil v. Biggers, 409 U.S. 188 (1972), for trial courts to apply
to determine whether an eyewitness identification procured
through an impermissibly suggestive procedure should be
admissible in evidence. We held that when an eyewitness
identification is procured through an impermissibly suggestive
procedure, the trial court must evaluate five factors under the
totality of the circumstances to determine whether the
identification is nonetheless sufficiently reliable to be
admitted in evidence. Padilla, 57 Haw. at 154, 552 P.2d at 360.
The five factors are: (1) the opportunity of the witness to
view the defendant at the time of the crime, (2) the witness's
degree of attention, (3) the accuracy of the witness's prior
description of the defendant, (4) the level of certainty
demonstrated by the witness at the identification, and (5) the
length of time between the crime and the identification. Id.
The thirteen factors we held in Cabagbag that a judge
should consider including in a jury instruction regarding
reliability of eyewitness identifications include the five
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factors delineated in Padilla for a judge to consider in
addressing admissibility.
After Cabagbag, in State v. Cabinatan, 132 Hawai‘i 63, 76,
319 P.3d 1071, 1084 (2014), we noted that although field show-up
identifications can be admissible, they are inherently
suggestive. We cited to various United States Supreme Court
opinions criticizing identifications of only one person
presented as a possible perpetrator of a crime, including
Stovall v. Denno, 388 U.S. 293, 302 (1967) abrogated on other
grounds by Griffith v. Kentucky, 479 U.S. 314 (1987), which had
stated that “[t]he practice of showing suspects singly to
persons for the purpose of identification, and not as part of a
lineup, has been widely condemned.” Cabinatan, 132 Hawaiʻi at
83, 319 P.3d 1091. We held that under the circumstances of that
case, where the eyewitness’s testimony suggested her
identification of the defendant in a show-up might have been
influenced by suggestive procedures, even under the pre-Cabagbag
discretionary standard, the trial court abused its discretion in
denying a defense request for a jury instruction regarding the
inherent suggestiveness of show-up identifications. Cabinatan,
132 Hawaiʻi at 77, 319 P.3d at 1085. But because the issue
before us was the need for a jury instruction and not
admissibility, we did not address whether trial courts must also
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consider additional factors when addressing the admissibility of
show-up identifications.
A defendant is denied due process of law, however, when the
procedure used to obtain an eyewitness identification admitted
at trial is “unnecessarily suggestive and conducive to
irreparable mistaken identification.” State v. Masaniai, 63
Haw. 354, 362, 628 P.2d 1018, 1024 (1981) (citations omitted).
In this case, we therefore address whether, in determining
whether an eyewitness identification procured through an
impermissibly suggestive procedure is nonetheless sufficiently
reliable under the totality of the circumstances to be admitted
in evidence, a trial judge must also consider factors we have
held the judge must consider including in a jury instruction
regarding the reliability of the eyewitness identification.
In doing so, we set forth new rules that expressly overrule
precedent upon which parties have regulated their conduct;
therefore, our holdings will only apply prospectively to events
occurring after publication of this decision, i.e., to
admissibility determinations or jury instructions given after
the date of this opinion. See State v. Auld, 136 Hawaiʻi 244,
256, 361 P.3d 471, 483 (2015) (citations omitted) (“The
‘paradigm case’ warranting a prospective-only application of a
new rule arises ‘when a court expressly overrules a precedent
upon which the contest would otherwise be decided differently
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and by which the parties may previously have regulated their
conduct.’”).
Factors to be applied in addressing eyewitness and show-up
identifications should not differ based on whether it is a judge
or jury considering them for purposes of admissibility or, if
admitted into evidence, for purposes of determining reliability.
As further discussed below, and to summarize, we therefore
prospectively hold that trial courts must, at minimum, consider
any relevant factors set out in the Hawaiʻi Pattern Jury
Instructions--Criminal (“Hawai̒i Standard Instructions” or
“HAWJIC”) governing eyewitness and show-up identification
testimony,3 as may be amended, as well as any other relevant
3
The HAWJIC 3.19 (2014) “Eyewitness Testimony” instruction currently
reads as follows:
The burden of proof is on the prosecution with reference to
every element of a crime charged, and this burden includes
the burden of proving beyond a reasonable doubt the
identity of the defendant as the person responsible for the
crime charged.
You must decide whether an eyewitness gave accurate
testimony regarding identification.
In evaluating identification testimony, you may consider
the following factors:
The opportunity of the witness to observe the person
involved in the alleged criminal act;
The stress, if any, to which the witness was subject at the
time of the observation;
The witness’s ability, following the observation, to
provide a description of the person;
(continued. . .)
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(continued. . .)
The extent to which the defendant fits or does not fit the
description of the person previously given by the witness;
The cross-racial or ethnic nature of the identification;
The witness’s capacity to make an identification;
Evidence relating to the witness’s ability to identify
other participants in the alleged criminal act;
Whether the witness was able to identify the person in a
photographic or physical lineup;
The period of time between the alleged criminal act and the
witness’s identification;
Whether the witness had prior contacts with the person;
The extent to which the witness is either certain or
uncertain of the identification and whether the witness’s
assertions concerning certainty or uncertainty are well-
founded;
Whether the witness’s identification is in fact the product
of his/her own recollection; and
Any other evidence relating to the witness’s ability to
make an identification.
The commentary provides that “[t]he court may wish to delete from the
instruction those listed factors that do not apply in a given case.” HAWJIC
3.19 cmt.
The HAWJIC 3.19A (2014) “Show-Up Identification” instruction currently
reads as follows:
In this case, in addition to other eyewitness
identification testimony, you have received evidence that
the defendant was identified by a witness at a so-called
“show-up” conducted by the police. While show-ups are
permissible, they are inherently suggestive police
procedures. In determining the reliability and accuracy of
an identification made at a police show-up, you must
consider the totality of the circumstances involved in the
show-up, which may include the following:
[Whether the identification was the result of a suggestive
procedure, including actions taken or words spoken by
police or anyone else to the witness before, during, or
after the identification process;]
[Whether the police either indicated to the witness that a
suspect was present in the procedure or failed to warn the
(continued. . .)
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factors that may be set out in binding precedent in addressing
whether, under a totality of circumstances, an impermissibly
suggestive eyewitness or show-up identification is nonetheless
sufficiently reliable to be admissible in evidence.
We also prospectively hold that in addressing the
admissibility of a suggestive eyewitness or show-up
identification, trial courts must also consider the effect of
any suggestiveness on the reliability of the identification in
determining whether it should be admitted into evidence.
Finally, we prospectively hold that when an eyewitness or
show-up identification is central to a case or has been procured
through a suggestive eyewitness or show-up identification, the
jury must also be instructed to consider the impact of any
(continued. . .)
witness that the perpetrator may or may not be in the
procedure;]
[Whether the defendant was required to wear distinctive
clothing that the perpetrator allegedly wore, or was
handcuffed or otherwise appeared to be in police custody;]
[Whether the witness was exposed to opinions, descriptions,
or identifications made by other witnesses, or to
photographs, news media, or to any other information that
may have influenced the independence of the
identification;]
[Whether other participants in the show-up were similar in
appearance to the defendant;]
[Whether the witness's identification was made
spontaneously and remained consistent thereafter;]
[and any other circumstance relating to the witness’s
ability to make an identification.]
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suggestive procedure on the reliability of the eyewitness or
show-up identification.4
In Kaneaiakala’s case, however, the trial judge did not err
in applying the Padilla factors that governed the admissibility
determination at the time it was made. As our holdings are
prospective, we therefore affirm the ICA’s judgment on appeal
affirming Kaneaiakala’s conviction and the denial of his motion
to suppress.
II. Additional Factual and Procedural Background
A. Circuit Court Proceedings
On January 26, 2015, the State charged Kaneaiakala via
felony information with one count of Burglary in the First
Degree, in violation of HRS § 708-810(1)(c).
1. Pretrial Motion to Suppress Eyewitness Identification
On June 9, 2015, Kaneaiakala filed a motion to suppress
Laraway’s identification and argued the identification was
obtained through an impermissibly suggestive and unreliable
show-up. Kaneaiakala maintained that as a result of the process
used by the officers to conduct the field show-up, there was an
“inordinately high” likelihood that Laraway incorrectly
4
This language, which already appears in HAWJIC 3.19A governing show-up
identifications, could also be included in HAWJIC 3.19 governing eyewitness
identifications:
[Whether the identification was the result of a suggestive
procedure, including actions taken or words spoken by
police or anyone else to the witness before, during, or
after the identification process;]
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identified him as the man she saw at the window. Kaneaiakala
also asserted Laraway’s identification was unreliable because
Laraway (1) viewed the man at the window briefly in passing, and
(2) she later “admitted she had bad eye sight and was not
wearing her glasses” when she witnessed the man at the window.
The State responded that even if the show-up was
impermissibly suggestive, Laraway’s identification was still
admissible as reliable because: (1) Laraway saw the man at the
window in broad daylight; (2) her view was not obstructed; (3)
she “was able to provide at least a partial description of [the
suspect] to 911” that was consistent with how Kaneaiakala looked
when the police arrested him; (4) the show-up took place just a
few hours after Laraway saw the man at the window; and (5)
Laraway was “almost positive” that Kaneaiakala was the man she
saw at the window based on his body shape, scruffy face, and
short, curly hair.
The circuit court held a two-day hearing on the motion to
suppress on September 1, 2015 and September 8, 2015. Two
witnesses testified at the hearing: Laraway and Officer Kanoa
Hose (“Officer Hose”). The following relevant testimony was
presented at the hearing.
a. Laraway’s Testimony
Through a Japanese interpreter, Laraway testified as
follows.
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Laraway lived in the 2904 Date Street Apartments on January
24, 2015. At around 12:30 p.m. that day, she left her apartment
to walk to her car, which was parked on Date Street across from
the apartment building. As she and her son walked on the
sidewalk alongside the apartment building before crossing Date
Street, Laraway saw a man crouched beneath the window of a
corner, ground-floor unit of the apartment building. Laraway
was about four meters away from the man when she also noticed
that the window’s screen was rolled up.
Laraway could only see the side of the man’s face as she
walked by, but she observed the man had short, curly hair and a
“scruffy face.” She also noted he was “not black, but he seemed
to be suntanned, Caucasian with light brown . . . skin.” She
did not recognize him. She took note of the man because “[i]t
was quite unusual” for someone to be crouched there. The man
was wearing a hat covering a portion of his face, but at the
hearing she could not remember whether the hat cast a shadow
over his face.
When Laraway got into her car, which was parked facing
towards the apartment, she looked up and saw the man’s upper
body was through the window and into the apartment. She
immediately called 911.5
5
The recording of Laraway’s 911 call was not offered as evidence at the
motion to suppress hearing.
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On the day of the incident, Laraway spoke and wrote in
English when interacting with HPD. Laraway had given the
following description of the man to the 911 dispatcher: “a
skinny black guy,” who was also “muscular” and “stout,” and who
was wearing a white or light blue t-shirt.
At the hearing, Laraway thought the shirt the man was
wearing was long-sleeved. She also clarified that she did not
describe the man’s hair to the 911 dispatcher or tell the 911
dispatcher that the man’s face was “scratchy or unshaved.”
After calling 911, Laraway drove to her son’s soccer game.
While at the park, at around 2:00 p.m., Laraway received a call
from an officer, but did not further describe the man she saw at
the window at that time.
Laraway returned home at around 3:00 p.m. and saw four
police cars outside the apartment building. The police told
Laraway they had “captured the guy in the laundromat.” She
thought that meant they had caught the man she had seen earlier
at the window. Laraway agreed to participate in a field show-up
outside the apartment building sometime between 3:00 p.m. and
4:00 p.m. The officers did not provide her with any forms or
instructions before conducting the show-up.
The officers asked Laraway to look at Kaneaiakala, who was
standing on the sidewalk, shirtless, handcuffed, and surrounded
by police officers. It was a “clear day” and she stood ten to
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fifteen feet away from him. On June 24, 2015, Laraway told the
police she was “[p]retty sure” Kaneaiakala was the same man she
had seen earlier. She “got the same impression” from
Kaneaiakala as she did from the man at the window, because of
the “structure and the face and the hair color . . . the image
itself, and also [the] complexion of his skin.”
Laraway admitted she did not see anything distinct about
the eyes or nose of the man at the window, and if shown someone
with similar body shape and complexion, it might have been hard
for her to identify the correct person. She further testified,
however, that she was sure that Kaneaiakala was the man she saw
at the window.
After she identified Kaneaiakala, Laraway completed a
written statement on which she wrote, “I almost positive the guy
was him.” After identifying Kaneaiakala, she also filled out a
suspect description form, checking various boxes describing the
suspect as a Caucasian male, 5’6” to 5’8” feet tall with a
medium build, dark brown hair, brown facial hair, and wearing a
long-sleeved white polo shirt and long blue pants. She wrote in
the word “scruffy” to describe the man at the window’s facial
hair.
Laraway explained that on June 24, 2015, she had checked
the box indicating the man at the window was wearing pants, but
she now recalled the man at the window was wearing shorts. She
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also explained she checked the box for long-sleeved shirt, but
testified that the man might have been wearing a short-sleeved
shirt. She acknowledged she checked the box indicating the man
at the window’s height based on later seeing Kaneaiakala at the
show-up.
On January 24, 2015, Laraway had spoken English with the
officers and completed all forms in English. At some point that
day, she told the police that she has “bad eyesight” and that
she was not wearing her glasses when she saw the man at the
window. Laraway testified she was born and raised in Japan and
grew up interacting mostly with Japanese people. At her
workplace, she predominately interacts with ethnically Japanese
people. During her past decade in Hawaiʻi, however, she has seen
and interacted with diverse people, and she is married to a
Caucasian man.
At the hearing, Laraway also identified Kaneaiakala, who
was present in the courtroom, as the man she had seen at the
window.
b. Officer Hose’s Testimony
Officer Hose testified that on January 24, 2015, at around
12:38 p.m., he responded to a “suspicious circumstances type
case” at the apartment building. Upon his arrival, he noticed
that a window screen of a ground-floor, corner apartment had
been cut. He contacted the owner of the apartment, who arrived
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around 1:00 p.m. The owner looked in the apartment and
identified missing items.
Officer Hose left the apartment, but was called back thirty
minutes later to investigate a situation involving “a nude male
in the laundry room.” When he returned, Officer Abe Kamanao
(“Officer Kamanao”) was in the laundry room with the man, whom
Officer Hose identified in court as Kaneaiakala. The officers
found a long-sleeved, light-blue collared shirt and a pair of
black shorts near Kaneaiakala and instructed Kaneaiakala to put
on the shorts. Officer Hose observed that several items the
apartment owner reported missing were in the laundry room,
including the watch Kaneaiakala was wearing.
Officer Hose then called Laraway, who said she was
returning to the apartment building soon. When she returned, he
asked her if she would be able to identify the man she saw at
the window and whether she would “be willing to participate in a
field show-up.”
To conduct the show-up, Officer Hose had Kaneaiakala stand
next to a parked police car on the street outside the apartment
building. He had Laraway stand “no more than about 40 feet”
away from Kaneaiakala, from where she had a clear, unobstructed
view of Kaneaiakala. Laraway calmly and quickly identified
Kaneaiakala as the man she saw at the window.
Officer Hose testified that Laraway was never given any
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instructions and was never told that the person she viewed may
or may not be a suspect. He denied telling Laraway that
Kaneaiakala was the man she had seen earlier. He admitted that
Laraway did not record her description of the man at the window
until after the show-up.
During Officer Hose’s cross-examination, the State
stipulated that the show-up was impermissibly suggestive.
c. The Circuit Court’s Findings of Fact, Conclusions
of Law, and Order Denying Motion to Suppress
On October 27, 2015, the circuit court entered findings of
fact and conclusions of law denying Kaneaiakala’s motion to
suppress. The court’s findings of fact were based largely on
Laraway’s testimony of the events that occurred on January 24,
2015. The findings of fact included, among other things, that
Laraway (1) participated in a field show-up, (2) recognized
Kaneaiakala based on his build, body shape, complexion, and
hair, and (3) told the officers she was “almost positive” that
Kaneaiakala was the man she saw at the window.
Based on those findings, the circuit court concluded that:
(1) although the show-up procedure was impermissibly suggestive,
(2) Laraway’s identification of Kaneaiakala was nonetheless
admissible because the totality of the circumstances, including
the five Biggers factors, indicated the identification was
reliable.
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The case then proceeded to jury trial.
2. Jury Trial
Kaneaiakala’s jury trial was held from April 18, 2016 to
April 20, 2016. The State called four witnesses: Laraway,
Officer Hose, Kip Praissman (“Praissman”), and Officer Kamanao.
Kaneaiakala did not present any witnesses. Laraway’s testimony
was substantially similar to her testimony at the hearing on the
motion to suppress. At trial, she added that she lived with her
husband and son at the 2904 Date Street apartment building on
January 24, 2015, and that she had left their apartment that day
with her twelve-year-old son to go to her son’s soccer game at
Kapiolani Park. Officer Hose’s testimony was substantially
similar to his testimony at the hearing on the motion to
suppress.
Praissman, a resident of the ground-floor apartment that
was broken into, testified in pertinent part as follows. He had
locked the apartment when he left it the morning of January 24,
2015. He returned around 1:00 p.m. after receiving a call from
HPD that his apartment had been burglarized and met with HPD
officers to identify what items were missing from the apartment
and to provide a statement.
A short time after the officers left, Praissman discovered
a naked man standing in the laundry room of the apartment
building and wearing Praissman’s watch. Praissman immediately
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called the police. Praissman later identified other items the
officers found in the laundry room with the man as items missing
from his apartment. At trial, Praissman identified the man he
saw in the laundry room as Kaneaiakala.
Officer Kamanao testified that on January 24, 2015, he had
responded to a call regarding an attempted burglary at the
apartment with Officer Hose and returned that same day in
response to a call regarding a naked man in the building’s
laundry room. Kamanao testified that, along with clothing and
some of Praissman’s missing items, the officers also found a
kitchen mitt, pair of scissors, pair of pliers, knife, dental
floss, and a screwdriver on the washing machine near
Kaneaiakala. At trial, Officer Kamanao identified Kaneaiakala
as the man he saw in the laundry room.
The recording of Laraway’s phone call to 911 on the day of
the incident was also introduced and played for the jury.
The jury found Kaneaiakala guilty as charged of one count
of Burglary in the First Degree in violation of HRS § 708-
810(1)(c). On September 20, 2016, the circuit court entered a
Judgment of Conviction and Sentence (“circuit court judgment”)
sentencing Kaneaiakala to a ten-year term of imprisonment with a
mandatory minimum sentence of three years and four months as a
repeat offender. Kaneaiakala timely appealed from the circuit
court judgment to the ICA.
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B. ICA Proceedings
On appeal to the ICA, Kaneaiakala argued the circuit court
erred by denying his motion to suppress because the field show-
up was impermissibly suggestive and Laraway’s identification of
Kaneaiakala was unreliable. Kaneaiakala also argued there was
insufficient evidence for the State to convict him of first
degree burglary because the State did not present substantial
evidence that Kaneaiakala burglarized the apartment.
In response, the State conceded the show-up procedure was
impermissibly suggestive. The State argued, as it did in
opposition to the motion to suppress, that Laraway’s
identification was nevertheless admissible because it was
reliable based on the totality of the circumstances. The State
maintained that based on the totality of the circumstances test
set forth in Biggers and Padilla, the circuit court correctly
denied Kaneaiakala’s motion to suppress.
On November 7, 2017, the ICA entered an SDO affirming the
circuit court’s denial of the motion to suppress and the circuit
court judgment. Kaneaiakala, SDO at 2. Although the ICA
accepted the State’s stipulation that the field show-up was
impermissibly suggestive, the ICA determined that Laraway’s
identification was sufficiently reliable and worthy of
presentation to the jury based on the totality of the
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circumstances.6 Kaneaiakala, SDO at 3-5. On November 24, 2017,
the ICA entered a Judgment on Appeal consistent with the SDO
(“judgment on appeal”).
C. Application for Certiorari
Kaneaiakala timely filed an application for writ of
certiorari from the ICA’s judgment on appeal and SDO.
Kaneaiakala contends the ICA erred in upholding the circuit
court’s rulings that Laraway’s identification of Kaneaiakala was
sufficiently reliable for admissibility under Padilla.
III. Standards of Review
With respect to whether an eyewitness identification should
be suppressed, we have held that “questions of suggestiveness
and reliability are questions of law that are freely reviewable
on appeal.” State v. Okumura, 78 Hawai‘i 383, 391, 894 P.2d 80,
88 (1995), abrogated on other grounds by Cabagbag, 127 Hawai‘i at
315, 277 P.3d at 1040. However, “answering these questions
involves determinations of fact by the [trial] court.” 78
Hawaiʻi at 392, 894 P.2d at 89. “[F]actual determinations made
by the trial court deciding pretrial motions in a criminal case
[are] governed by the clearly erroneous standard,” and
“conclusions of law are reviewed under the right/wrong
6
The ICA also examined the State’s evidence and testimony adduced at
trial and ultimately held there was substantial evidence identifying
Kaneaiakala and thus sufficient evidence to convict him as charged. See
Kaneaiakala, SDO at 5-8.
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standard.” State v. Edwards, 96 Hawai‘i 224, 231, 30 P.3d 238,
245 (2001) (quoting State v. Eleneki, 92 Hawai‘i 562, 564, 993
P.2d 1191, 1193 (2000)).
“A finding of fact is clearly erroneous when (1) the
record lacks substantial evidence to support the finding, or (2)
despite substantial evidence in support of the finding, the
appellate court is nonetheless left with a definite and firm
conviction that a mistake has been made.” Okumura, 78 Hawaiʻi at
392, 894 P.2d at 89 (citations and internal quotation marks
omitted). When applying the “clearly erroneous” test, it must
be remembered that:
[i]t is for the trial judge as fact-finder to assess the
credibility of witnesses and to resolve all questions of
fact; the judge may accept or reject any witness’s
testimony in whole or in part. As the trier of fact, the
judge may draw all reasonable and legitimate inferences and
deductions from the evidence, and the findings of the trial
court will not be disturbed unless clearly erroneous. An
appellate court will not pass upon the trial judge’s
decisions with respect to the credibility of witnesses and
the weight of the evidence, because this is the province of
the trial judge.
State v. Eastman, 81 Hawaiʻi 131, 139, 913 P.2d 57, 65 (1996)
(citations omitted).
IV. Discussion
A. As State v. Padilla Controlled, the Circuit Court’s Denial
of the Motion to Suppress was Properly Affirmed by the ICA
A defendant is denied due process of law when the procedure
used to obtain an eyewitness identification admitted at trial is
“unnecessarily suggestive and conducive to irreparable mistaken
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identification.” Masaniai, 63 Haw. at 362, 628 P.2d at 1024
(citations omitted). We have held, however, that an eyewitness
identification is not inadmissible merely because the
identification procedure was impermissibly suggestive. State v.
Malani, 59 Haw. 167, 170, 578 P.2d 236, 238 (1978) (citing
Manson v. Brathwaite, 432 U.S. 98, 109-114 (1977))
(“Impermissible suggestiveness alone does not require the
exclusion of identification evidence.”). Rather, whether an
eyewitness identification obtained through an impermissibly
suggestive procedure is admissible depends upon the reliability
of the identification. Cabagbag, 127 Hawai‘i at 309, 277 P.3d at
1034 (citing Padilla, 57 Haw. at 153-55, 552 P.2d at 360-61).
Kaneaiakala argues the ICA erred in upholding the circuit
court’s ruling that Laraway’s identification was sufficiently
reliable under Padilla and thus admissible, because the
impermissibly suggestive show-up produced an unreliable
identification and created a substantial likelihood of
misidentification, requiring suppression of the identification.
We hold that pursuant to the Padilla rule then in effect, the
circuit court did not clearly err in concluding that Laraway’s
identification was sufficiently reliable and thus admissible.
Therefore, the ICA did not err with regard to the admission of
Laraway’s identification.
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In this case, the circuit court accepted the State’s
stipulation that the show-up identification of Kaneaiakala was
impermissibly suggestive. See Cabinatan, 132 Hawaiʻi at 76, 319
P.3d at 1084 (“While show-ups are permissible, they are
inherently suggestive.”) (citations omitted). The circuit court
then applied the five Biggers factors we adopted in Padilla to
determine whether the show-up identification at issue was
nevertheless sufficiently reliable to be admissible in evidence.
Padilla held that even if an eyewitness identification is
procured through an impermissibly suggestive procedure, the
trial court must nonetheless determine whether the
identification is sufficiently reliable under the totality of
the circumstances to be admissible in evidence. See Padilla, 57
Haw. at 154, 552 P.2d at 360. Under Padilla, the circuit court
was required to conduct a totality of the circumstances analysis
of Laraway’s identification, paying particular attention to (1)
Laraway’s opportunity to view the suspect at the time of the
crime, (2) her degree of attention, (3) the accuracy of her
prior description of the suspect, (4) the level of certainty she
demonstrated at the show-up, and (5) the length of time between
the crime and the show-up. See Padilla, 57 Haw. at 154, 552
P.2d at 360 (citing Biggers, 409 U.S. at 199-200).
With respect to the five factors, the circuit court found:
(1) Laraway “got a good look” at the suspect on the day of the
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incident; (2) she observed the suspect’s build, complexion,
hairstyle, and clothing; (3) she did not recognize the suspect
and felt something was wrong; (4) she looked back at the
apartment while inside her car and saw that the suspect’s upper
body had entered the apartment window, prompting her to call
911; (5) Laraway had been “almost positive” at the field show-up
that Kaneaiakala was the same man she saw beneath the window;
and (6) at the motion to suppress hearing, Laraway “was sure
that [Kaneaiakala] was the person she saw earlier,” even if “she
might have a hard time picking between two people with similar
body shape and complexion without seeing their face[s].” The
court also found that the show-up was conducted within three
hours of Laraway’s initial observation of the suspect. The
court concluded that within the totality of the circumstances,
including consideration of the five reliability factors,
Laraway’s identification was worthy of presentation to the jury.
Upon review of the testimony adduced at the motion to
suppress hearing, the circuit court did not clearly err. The
ICA, therefore, did not err in upholding the circuit court’s
denial of Kaneaiakala’s motion to suppress based on the Padilla
standards in effect at the time of the circuit court’s ruling.7
7
Kaneaiakala also argues that because Laraway’s identification should
not have been admitted, the State did not present substantial evidence of his
identity, and therefore the ICA erred by holding there was sufficient
evidence at trial for his conviction. Our affirmance of the ICA’s holding
(continued. . .)
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B. Prospectively, Trial Courts Must Consider the Same Factors
as Jurors in Evaluating the Reliability of Challenged
Eyewitness Identifications for Admissibility Purposes
1. The Padilla Factors are Insufficient
As discussed, under our current framework, when a defendant
challenges the admissibility of an eyewitness identification
based on an impermissibly suggestive procedure, courts are
required to determine within the totality of the circumstances
whether the identification is nonetheless “sufficiently reliable
so that it is worthy for presentation to and consideration by
the jury.” See State v.Walton, 133 Hawai‘i 66, 87-88, 324 P.3d
876, 898 (2014) (citations omitted). The identification must be
suppressed only if the impermissibly suggestive procedure used
created a very substantial likelihood of misidentification. 133
Hawai‘i at 87, 324 P.3d at 897 (citations omitted).
In this case, the circuit court applied the five-factor
Biggers test we adopted in Padilla to determine whether a show-
up identification obtained from impermissibly suggestive
procedure is nonetheless reliable under the totality of the
circumstances and thus admissible. 57 Haw. at 154, 552 P.2d at
360. Since Padilla, we have not modified the
five-factor test for admissibility of impermissibly suggestive
eyewitness identifications. See, e.g., Cabagbag, 127 Hawaiʻi at
(continued. . .)
that the circuit court did not err in admitting Laraway’s identification is
dispositive on that issue.
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309, 277 P.3d at 1034 (applying the Padilla/Biggers factors in
2012).
It has become widely accepted since 1976, however, that
misidentifications are one of the leading causes of wrongful
convictions. 127 Hawaiʻi at 315, 277 P.3d at 1040. A robust
body of scholarship and empirical research has emerged calling
into doubt whether the Biggers factors we adopted in Padilla are
sufficient indicators of reliability and admissibility.
In Cabagbag, we held that when identification evidence is a
central issue in a case, a court must, at the defendant’s
request, give a specific jury instruction about factors
affecting the reliability of eyewitness identification. 127
Hawai‘i at 304, 313–15, 277 P.3d at 1029, 1038–40. To support
the need for the special jury instructions, we cited numerous
studies evincing the connection between unreliable eyewitness
identifications and wrongful convictions. 127 Hawaiʻi at 310-14,
277 P.3d at 1035-39. We explained:
Many studies now confirm that false identifications are
more common than was previously believed. For example,
Professor Brandon L. Garrett concluded in a study involving
250 exonerated defendants that “[e]yewitnesses
misidentified 76% of the exonerees (190 of 250 cases).”
Brandon L. Garrett, Convicting the Innocent: Where Criminal
Prosecutions Go Wrong, 48 (2011). Professor Garrett’s
original study of 200 such cases in 2008 concluded that
eyewitness identification testimony was the leading
contributing factor to wrongful convictions and was four
times more likely to contribute to a wrongful conviction
than a false confession. Brandon L. Garrett, Judging
Innocence, 108 Colum. L. Rev. 55, 76 (2008). Other studies
have reached similar results. See, e.g., Edward Connors,
et. al., Convicted by Juries, Exonerated by Science: Case
Studies in the Use of DNA Evidence to Establish Innocence
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after Trial, 15, 96 (1996), available at https://www.ncjrs.
gov/pdffiles/dnaevid.pdf (reviewing 28 sexual assault cases
in which defendants were later exonerated and concluding
that all cases, except those involving homicide, “involved
victim eyewitness identification both prior to and at
trial,” and that in those cases “eyewitness testimony was
the most compelling evidence”); Gary L. Wells, et. al.,
Recommendations for Properly Conducted Lineup
Identification Tasks, in Adult Eyewitness Testimony:
current Trends and Developments 223–24 (1994) (studying
over 1,000 wrongful convictions and concluding that recall
errors by witnesses were the leading cause of such
convictions).
127 Hawaiʻi at 310, 277 P.3d at 1035 (some formatting altered).
In Cabagbag, we recognized that studies had identified
factors such as “passage of time, witness stress, duration of
exposure, distance, ‘weapon focus . . . ’, and cross-race bias”8
as affecting the reliability of an eyewitness identification.
127 Hawaiʻi at 310-11, 277 P.3d at 1035-36. We also noted that,
“[e]mpirical research has also undermined the common sense
notion that the confidence of the witness is a valid indicator
of the accuracy of the identification.” 127 Hawai‘i at 311, 277
P.3d at 1036.
Accordingly, we set out thirteen factors that a judge
should consider including in a jury instruction on how to assess
the reliability of an eyewitness identification which Hawaii’s
8
Other jurisdictions have also recognized that cross-race identification
raises significant reliability issues. See, e.g., Young v. State, 374 P.3d
395, 424 (Alaska 2016); State v. Henderson, 27 A.3d 872, 907 (N.J. 2011).
See also Anthony G. Greenwald & Linda Hamilton Krieger, Implicit Bias:
Scientific Foundations, 94 CALIF. L. REV. 945, 946 (2006) (“[T]he science
of implicit cognition suggests that actors do not always have conscious,
intentional control over the processes of social perception, impression
formation, and judgment that motivate their actions.”).
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Standard Committee on Pattern Jury Instructions (“Jury
Instructions Committee”) has adopted in Hawaiʻi Standard
Instruction 3.19. HAWJIC 3.19 reads as follows:
The burden of proof is on the prosecution with reference to
every element of a crime charged, and this burden includes
the burden of proving beyond a reasonable doubt the
identity of the defendant as the person responsible for the
crime charged.
You must decide whether an eyewitness gave accurate
testimony regarding identification.
In evaluating identification testimony, you may consider
the following factors:
The opportunity of the witness to observe the person
involved in the alleged criminal act;
The stress, if any, to which the witness was subject at the
time of the observation;
The witness’s ability, following the observation, to
provide a description of the person;
The extent to which the defendant fits or does not fit the
description of the person previously given by the witness;
The cross-racial or ethnic nature of the identification;
The witness’s capacity to make an identification;
Evidence relating to the witness’s ability to identify
other participants in the alleged criminal act;
Whether the witness was able to identify the person in a
photographic or physical lineup;
The period of time between the alleged criminal act and the
witness’s identification;
Whether the witness had prior contacts with the person;
The extent to which the witness is either certain or
uncertain of the identification and whether the witness’s
assertions concerning certainty or uncertainty are well-
founded;
Whether the witness’s identification is in fact the product
of his/her own recollection; and
Any other evidence relating to the witness’s ability to
make an identification.
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HAWJIC 3.19 Eyewitness Testimony (added underscoring indicating
substantive addition to the instruction approved in Cabagbag).9
The existing Padilla factors, in contrast, only require
that a judge consider the following five factors, some of which
are subsumed in different terminology within HAWJIC 3.19: (1)
the opportunity of the witness to view the defendant at the time
of the crime, (2) the witness's degree of attention, (3) the
accuracy of the witness's prior description of the defendant,
(4) the level of certainty demonstrated by the witness at the
identification, and (5) the length of time between the crime and
the identification.
In Cabagbag, by ruling that trial courts no longer have
discretion to reject a defense request for a jury instruction
regarding the reliability of an eyewitness identification, we
abrogated our holding in Padilla that the decision on whether or
not to give such a jury instruction was discretionary with the
trial court. While overruling Padilla on this point, however,
as admissibility was not at issue, we did not address whether a
trial judge should also have to consider the thirteen Cabagbag
factors, rather than the five Padilla factors, to determine
9
In addition to the underscored text, HAWJIC 3.19 differs from the
instruction proposed in Cabagbag by its use of “person involved in the
alleged criminal act” in place of where Cabagbag used “perpetrator.” Compare
HAWJIC 3.19 with Cabagbag, 127 Hawai‘i at 314, 277 P.3d at 1039.
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whether an impermissibly suggestive eyewitness identification
was nonetheless sufficiently reliable under the totality of
circumstances to be admissible in evidence.
After Cabagbag, in Cabinatan, we noted that although field
show-up identifications can be admissible, they are inherently
suggestive. Cabinatan, 132 Hawaiʻi at 76, 319 P.3d at 1084.10 We
10
We noted:
The police did not have Kincaid identify Cabinatan in
either a line-up or photographic array. Thus,
identification of Cabinatan was made at an inherently
suggestive field showup where Cabinatan was in
handcuffs. See, e.g., United States v. Newman, 144 F.3d
531, 535 (7th Cir. 1998) (“We have noted many times that a
showup identification, in which witnesses confront only one
suspect, is inherently suggestive.”) (citing United States
ex rel. Kirby v. Sturges, 510 F.2d 397, 403 (7th Cir.
1975) (Stevens, J.) (“Without question, almost any one-to-
one confrontation between a victim of crime and a person
whom the police present to him as a suspect must convey the
message that the police have reason to believe him
guilty.”)). The United States Supreme Court has noted that
“the influence of improper suggestion upon identifying
witnesses probably accounts for more miscarriages of
justice than any other single factor.” United States v.
Wade, 388 U.S. 218, 229, 87 S.Ct. 1926, 18 L.Ed.2d 1149
(1967) (internal quotation marks omitted). Such suggestive
circumstances have a “corrupting effect” on
reliability. Manson v. Brathwaite, 432 U.S. 98, 114, 97
S.Ct. 2243, 53 L.Ed.2d 140 (1977); see also Stovall v.
Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199
(1967) (“The practice of showing suspects singly to persons
for the purpose of identification, and not as part of a
lineup, has been widely condemned.”); State v. DeCenso, 5
Haw.App. 127, 131, 681 P.2d 573, 578 (1984). As explained
by the dissent in Perry [v. New Hampshire, 565 U.S. 228,
251 (2012)], an initial identification derived through
suggestive circumstances often is difficult to discredit as
part of the adversary process:
Eyewitness evidence derived from suggestive
circumstances . . . is uniquely resistant to
the ordinary tests of the adversary process.
An eyewitness who has made an identification
often become convinced of its accuracy. . . .
At trial, an eyewitness' artificially inflated
(continued. . .)
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held that under the circumstances of that case, where the
eyewitness’s testimony indicated her show-up identification of
the defendant might have been influenced by suggestive
procedures, even though the giving of an instruction was
discretionary pre-Cabagbag, the trial court abused its
discretion in denying a defense request for a jury instruction
regarding the inherent suggestiveness of show-up
identifications. Cabinatan, 132 Hawaiʻi at 77, 319 P.3d at 1085.
Again, although we ruled that jurors must be instructed on
issues regarding the suggestiveness of show-up identifications,
as admissibility was not at issue, we did not address whether a
judge would also be required to consider suggestiveness factors
affecting reliability in evaluating admissibility.
As a result of our holding in Cabinatan, the Jury
Instructions Committee also promulgated Hawaiʻi Standard
Instruction 3.19A regarding show-up identifications, which reads
as follows:
(continued. . .)
confidence in an identification's accuracy
complicates the jury's task of assessing
witness credibility and reliability. . . . The
end result of suggestion . . . is to fortify
testimony bearing directly on guilt that juries
find extremely convincing and are hesitant to
discredit.
Perry, 132 S.Ct. at 732 (Sotomayor, J., dissenting).
Cabinatan, 132 Hawaiʻi at 82-83, 319 P.3d at 1090-91.
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In this case, in addition to other eyewitness
identification testimony, you have received evidence that
the defendant was identified by a witness at a so-called
“show-up” conducted by the police. While show-ups are
permissible, they are inherently suggestive police
procedures. In determining the reliability and accuracy of
an identification made at a police show-up, you must
consider the totality of the circumstances involved in the
show-up, which may include the following:
[Whether the identification was the result of a suggestive
procedure, including actions taken or words spoken by
police or anyone else to the witness before, during, or
after the identification process;]
[Whether the police either indicated to the witness that a
suspect was present in the procedure or failed to warn the
witness that the perpetrator11 may or may not be in the
procedure;]
[Whether the defendant was required to wear distinctive
clothing that the perpetrator allegedly wore, or was
handcuffed or otherwise appeared to be in police custody;]
[Whether the witness was exposed to opinions, descriptions,
or identifications made by other witnesses, or to
photographs, news media, or to any other information that
may have influenced the independence of the
identification;]
[Whether other participants in the show-up were similar in
appearance to the defendant;]
[Whether the witness's identification was made
spontaneously and remained consistent thereafter;]
[and any other circumstance relating to the witness’s
ability to make an identification.]
HAWJIC 3.19A Show-Up Identification.
This instruction appropriately points out additional
factors that a judge should consider including in a jury
instruction regarding the reliability of show-up
identifications. Yet, trial courts are currently not required
11
We suggest that, similar to HAWJIC 3.19, “perpetrator” be changed to
“person involved in the alleged criminal act” whenever it appears in this
instruction. See supra text accompanying note 9.
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to consider any of these factors that may be relevant in
evaluating reliability for admissibility purposes.
2. Admissibility Criteria in Other States
Several states that also adopted the five-factor Biggers
test, as we did in Padilla, have since modified their frameworks
to require trial judges to consider additional factors affecting
reliability contained in jury instructions when they evaluate
the reliability of eyewitness identifications for admissibility
purposes.
The Utah Supreme Court, for example, adopted the Biggers
test in 1980. See State v. McCumber, 622 P.2d 353, 357 (Utah
1980) (abrogation recognized in State v. Ramirez, 817 P.2d 774,
779-81 (Utah 1991)). Initially, in 1986, as we did in Cabagbag,
the Utah court recognized weaknesses with the Biggers test in
light of scientific studies on human memory and modified the
considerations to be included in its jury instructions, which
previously only included the five Biggers factors. See State v.
Long, 721 P.2d 483, 490 (Utah 1986). The Utah court retained
only two of the Biggers factors and explicitly rejected the
Biggers “level of certainty” factor based on studies indicating
that suggestive police procedures may influence a witness’s
confidence. See Long, 721 P.2d at 490-93. The Utah court also
required consideration of whether an identification was the
product of suggestion. See 721 P.2d at 493.
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Then, with respect to the admissibility of suggestive
eyewitness identifications, the Utah Supreme Court ruled in 1991
that the reliability factors to be included in jury instructions
also applied to the threshold question of the admissibility of
eyewitness identifications.12 See Ramirez, 817 P.2d at 778-79.
Similarly, the New Jersey Supreme Court had adopted Biggers
and Manson in 1982. State v. Carter, 449 A.2d 1280, 1303-04
(N.J. 1982). Then in 2011, in the leading case State v.
Henderson,13 after extensive research on memory and the
reliability of eyewitness identification,14 the New Jersey
Supreme Court recognized that “[s]cience has proven that memory
is malleable. The body of eyewitness identification research
12
The Utah test for reliability, based on the considerations enunciated
in Long, are:
(1) [T]he opportunity of the witness to view the actor
during the event; (2) the witness’s degree of attention to
the actor at the time of the event; (3) the witness’s
capacity to observe the event, including his or her
physical and mental acuity; (4) whether the witness’s
identification was made spontaneously and remained
consistent thereafter, or whether it was the product of
suggestion; and (5) the nature of the event being observed
and the likelihood that the witness would perceive,
remember and relate it correctly.
Ramirez, 817 P.2d at 781 (quoting Long, 721 P.2d at 493). Utah courts have
also identified expert testimony as an effective means of assisting jurors
with determining eyewitness identification reliability. See, e.g., State v.
Clopten, 223 P.3d 1103, 1108-15 (Utah 2009).
13
We discussed Henderson in Cabagbag. See 127 Hawaiʻi at 312-13.
14
Henderson was based in large part on the findings of a Special Master,
who was appointed to evaluate hundreds of scientific studies, preside over
hearings, hear testimony from seven experts, and issue an extensive report
regarding human memory and the reliability of eyewitness identifications.
Henderson, 27 A.3d at 877-78.
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further reveals that an array of variables can affect and dilute
memory and lead to misidentifications.” Henderson, 27 A.3d at
895. Henderson recognized that, in practice, many New Jersey
courts treated the Biggers factors as a checklist without
considering the effects of other variables on the reliability of
the identification within the totality of the circumstances.
Henderson, 27 A.3d at 919.15
The New Jersey Supreme Court announced a new, non-
exhaustive list of twenty-two reliability factors to be
considered within the totality of the circumstances by a court
when ruling on the admissibility of an eyewitness
identification. 27 A.3d at 920-23.16 The New Jersey Supreme
Court ruled that for a defendant to obtain a pretrial hearing on
the admissibility of an eyewitness identification, the
“defendant has the initial burden of showing some evidence of
suggestiveness” due to one or more system variables “that could
15
The New Jersey Supreme Court also raised concerns that three of the
Biggers factors — the witness’s opportunity to view the crime, the witness’s
degree of attention, and the witness’s level of certainty at the time of
identification — rely on witness self-reporting, which may be affected by
suggestive procedure. Henderson, 27 A.3d at 918.
16
The New Jersey Supreme Court divided the factors into (1) “system
variables,” which are factors that are within the control of the criminal
justice system, such as police procedure, and (2) “estimator variables,”
which are factors “related to the witness, the perpetrator, of the event
itself — like distance, light, or stress — over which the legal system has no
control.” Henderson, 27 A.3d at 878, 895-96, 920-23.
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lead to a mistaken identification.”17 27 A.3d at 920. To avoid
suppression of the identification, the prosecution would then be
17
“System variables,” factors that are within the control of the criminal
justice system, laid out by Henderson include:
1. Blind Administration. Was the lineup procedure
performed double-blind? [Where the administrator does not
know which lineup member is the subject.] If double-blind
testing was impractical, did the police use a technique . .
. to ensure that the administrator had no knowledge of
where the suspect appeared in the photo array or lineup?
2. Pre-identification Instructions. Did the administrator
provide neutral, pre-identification instructions warning
that the suspect may not be present in the lineup and that
the witness should not feel compelled to make an
identification?
3. Lineup Construction. Did the array or lineup contain
only one suspect embedded among at least five innocent
fillers? Did the suspect stand out from other members of
the lineup?
4. Feedback. Did the witness receive any information or
feedback, about the suspect or the crime, before, during,
or after the identification procedure?
5. Recording Confidence. Did the administrator record the
witness' statement of confidence immediately after the
identification, before the possibility of any confirmatory
feedback?
6. Multiple Viewings. Did the witness view the suspect
more than once as part of multiple identification
procedures? Did police use the same fillers more than
once?
. . . .
[7.] Private Actors. Did law enforcement elicit from the
eyewitness whether he or she had spoken with anyone about
the identification and, if so, what was discussed?
[8.] Other Identifications Made. Did the eyewitness
initially make no choice or choose a different suspect or
filler?
27 A.3d at 920. The New Jersey Supreme Court later revised this framework to
allow a defendant to trigger a pretrial hearing due to estimator variables as
well as system variables. State v. Chen, 27 A.3d 930, 943 (N.J. 2011); see
also State v. Almaraz, 301 P.3d 242, 252-53 (Idaho 2013) (adopting system
variables as threshold considerations for whether a pre-trial hearing on a
(continued. . .)
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required to offer proof at the hearing, accounting for both
system and estimator variables, that the identification is
reliable. 27 A.3d at 919. The ultimate burden in New Jersey,
however, remained with the defendant “to prove a very
substantial likelihood of irreparable misidentification.” 27
A.3d at 920.18
(continued. . .)
motion to suppress an eyewitness identification allegedly procured from
suggestive police procedure is necessary).
18
Hawaiʻi law requires a “very substantial likelihood of irreparable
misidentification” based on a totality of circumstances for suppression of
identification. Padilla, 57 Haw. at 154, 552 P.2d at 360. Padilla cited to
the United States Supreme Court opinion in Simmons v. United States, 390 U.S.
377, 384 (1968) for this test. With respect to the burden in cases
challenging identifications, the United States Supreme Court
applie[s] a two-step inquiry: First, the defendant has the burden
of showing that the eyewitness identification was derived through
“impermissibly suggestive” means. Simmons, 390 U.S. at 384, 88
S.Ct. 967. [S]econd, if the defendant meets that burden, courts
consider whether the identification was reliable under the
totality of the circumstances. That step entails considering the
witness'[s] opportunity to view the perpetrator, degree of
attention, accuracy of description, level of certainty, and the
time between the crime and pretrial confrontation, then weighing
such factors against the “corrupting effect of the
suggestive identification.” Braithwaite, 432 U.S.[] at 108, 114,
97 S.Ct. 2243. Most identifications will be admissible. The
standard of “fairness as required by the Due Process
Clause,” id., at 113, 97 S.Ct. 2243, however, demands that a
subset of the most unreliable identifications—those carrying a “
‘very substantial likelihood of . . . misidentification’”—will be
excluded. Biggers, 409 U.S.[] at 198, 93 S.Ct. 375.
Perry, 565 U.S. at 253-54. Thus, a defendant challenging an eyewitness
identification has the initial burden to show that the identification was
“impermissibly suggestive.” The court then independently analyzes whether
there is a “very substantial likelihood of misidentification” under the
totality of circumstances. To the extent Hawaiʻi cases state that
[w]hen the defendant challenges admissibility
of eyewitness identification on the grounds of impermissibly
suggestive pre-trial identification procedure, he or she has
the burden of proof, and the court, trial or appellate, is faced
with two questions: (1) whether the procedure was impermissibly
(continued. . .)
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Thus, in determining whether suggestive identifications
should be admissible, New Jersey requires courts to employ a
totality of the circumstances test considering reliability
variables set forth in Henderson.19 27 A.3d at 919. Other
states have since expressly adopted New Jersey’s Henderson
framework. See, e.g., State v. Harris, 191 A.3d 119, 143–44
(Conn. 2018); Young, 374 P.3d at 427-28.20
(continued. . .)
or unnecessarily suggestive; and (2) if so, whether, upon viewing
the totality of the circumstances, such as opportunity to view at
the time of the crime, the degree of attention, and the elapsed
time, the witness's identification is deemed sufficiently
reliable so that it is worthy of presentation to and
consideration by the jury,
Walton, 133 Hawaiʻi at 83, 324 P.3d at 893, an interpretation of this phrase
placing the burden of proof on the defendant to establish factor (2) would
not comport with the standard of “fairness as required by the Due Process
Clause” of the federal constitution. Manson, 432 U.S. at 113.
19
Under New Jersey’s new test, the court may end the pretrial hearing at
any time if the court determines the defendant’s suggestiveness accusation is
groundless. Henderson, 27 A.3d at 920.
20
The Idaho Supreme Court decided to maintain the two-part test from
Biggers/Manson, in which a court considering whether to grant a motion to
suppress an eyewitness identification must first determine whether the
“identification procedures are overly suggestive,” and, if they are, then
“examine whether the reliability of the identification outweighs the
corrupting effect of the suggestive identification.” Almaraz, 301 P.3d at
252. Referencing Henderson, however, the Idaho Supreme Court held that Idaho
courts must consider system variables when determining the suggestiveness of
the procedure, and then consider estimator variables within the application
of the Biggers factors to determine reliability and admissibility. 301 P.3d
at 252-53; see also State v. Moore, 430 P.3d 1278, 1280 (Idaho 2018)
(applying eyewitness identification reliability test announced in Almaraz).
Other states have adopted some other factors in the
reliability/admissibility analysis. Vermont has abandoned the Biggers
“witness certainty” reliability factor based on empirical research indicating
that witness certainty is easily corrupted by suggestive procedure. See
State v. Discola, 184 A.3d 1177, 1188–89 (Vt. 2018); see also Commonwealth v.
Gomes, 22 N.E.3d 897 (Mass. 2015) (requiring juries to be instructed on
principles affecting reliability), abrogated on other grounds by
Commonwealth v. Bastaldo, 32 N.E.3d 873 (Mass. 2015) (building
on Gomes regarding application of cross-racial identification instruction);
(continued. . .)
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3. Revised Admissibility Criteria
We did not adopt New Jersey’s twenty-two factor “system”
and “estimator” reliability factors. See Cabagbag, 127 Hawaiʻi
at 314, 277 P.3d at 1039. Instead, we set out thirteen factors,
now reflected in Hawaiʻi Standard Instruction 3.19, that a judge
should consider including in a jury instruction regarding the
reliability of an eyewitness identification. Factors a judge
should consider in addressing whether an impermissibly
suggestive eyewitness or show-up identification is nonetheless
sufficiently reliable to be admitted into evidence should not
differ from the factors a judge should consider including in a
jury instruction regarding reliability. We therefore agree with
New Jersey, Utah, and other states that the factors a jury must
consider in evaluating the reliability of an eyewitness or show-
up identification must also be considered by a trial court in
addressing admissibility of an impermissibly suggestive
eyewitness or show-up identification.
Thus, we prospectively hold that trial courts must, at
minimum, consider any relevant factors set out in the Hawaiʻi
Standard Instructions governing eyewitness and show-up
identifications, as may be amended, as well as any other
(continued. . .)
State v. Lawson, 291 P.3d 673 (Or. 2012) (limiting admissibility of
eyewitness identifications based on rules of evidence).
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relevant factors that may be set out in binding precedent in
addressing whether, under a totality of circumstances, an
impermissibly suggestive eyewitness or show-up identification is
nonetheless sufficiently reliable to be admissible in evidence.
As this holding sets forth a new rule that expressly
overrules precedent upon which parties have regulated their
conduct, it will only apply prospectively to admissibility
determinations made after the date of this opinion.21
C. Prospectively, Judges Must Also Consider the Impact of
Suggestive Procedures as a Part of the Admissibility of
Determination
Padilla only required a trial judge to address
suggestiveness as a threshold issue; if an eyewitness
identification was determined to have been procured through an
impermissibly suggestive procedure, Padilla required the trial
court to evaluate five factors under the totality of the
circumstances to determine whether the identification is
nonetheless sufficiently reliable to be admitted in evidence.
21
See Auld, 136 Hawaiʻi at 256, 361 P.3d at 483 (“The ‘paradigm case’
warranting a prospective-only application of a new rule arises ‘when a court
expressly overrules a precedent upon which the contest would otherwise be
decided differently and by which the parties may previously have regulated
their conduct.’”) (citations omitted); State v. Jess, 117 Hawaiʻi 381, 400-02,
184 P.3d 133, 152-54 (2008) (summarizing our case law on the retroactivity of
new rules); Cabagbag, 127 Hawaiʻi at 317, 277 P.3d at 1042 (holding that a new
rule requiring a jury instruction on eyewitness identification in certain
circumstances would have prospective effect only). Although “judicial
decisions are assumed to apply retroactively,” when this court “announces a
‘new rule,’ then this court may, in its discretion, determine that the
interests of fairness preclude retroactive application of the new rule.”
State v. Ketchum, 97 Hawaiʻi 107, 123 n.26, 34 P.3d 1006, 1022 n.26 (2001).
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Padilla, 57 Haw. at 154, 552 P.2d at 360. Suggestiveness
itself, however, was not one of the five factors to be
considered by a trial court to determine admissibility.
As noted earlier, however, various courts, including the
Utah Supreme Court, now also require consideration of whether an
identification was the product of suggestion as a part of a
trial court’s reliability evaluation determining whether an
eyewitness identification should be admitted into evidence. See
Long, 721 P.2d at 493. For it is known that human memory, and
therefore reliability, can also be distorted and affected by
suggestive police procedures. See Henderson, 27 A.3d at 894-95.
In fact, in the 1977 Manson case, decided five years after
Biggers, the United States Supreme Court itself reaffirmed the
Biggers test, but noted that the factors indicating reliability
should be weighed against the “corrupting effect of the
suggestive identification itself.” Manson, 432 U.S. at 114.
In this regard, eyewitnesses who receive “a simple post-
identification confirmation regarding the accuracy of their
identification 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.” Henderson, 27 A.3d at 899 (citations omitted).
Moreover, suggestiveness in police conduct — intentional or
unintentional — may undermine the independence and accuracy of
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the witness’s recollection and subsequent identification. See
Perry, 565 U.S. at 251 (Sotomayor, J., dissenting) (citation
omitted) (“Our precedents make no distinction between
intentional and unintentional suggestion. To the contrary, they
explicitly state that ‘[s]uggestion can be created intentionally
or unintentionally in many subtle ways.’”); see also, Gomes, 22
N.E.3d at 915 (discussing impacts of suggestiveness on witness
confidence). Thus, Alaska has also held that any suggestiveness
in procuring an eyewitness identification — irrespective of
whether it be an “impermissible” or “unnecessary” suggestion —
requires an evaluation of reliability by the court. See Young,
374 P.3d at 426.
Therefore, it is clear that suggestive procedures can also
affect the reliability of eyewitness identifications and should
be considered in the admissibility determination. To counteract
possible effects of suggestive procedures on reliability, we
therefore also prospectively hold that in addressing
admissibility of a suggestive eyewitness or show-up
identification, trial courts must also consider the effect of
the suggestiveness on the reliability of the identification in
determining whether it should be admitted into evidence.
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D. Prospectively, When Applicable, Juries Must Also Be
Instructed To Consider the Impact of Suggestive Procedures
as a Part of the Reliability Determination
Correspondingly, we hold that when an identification has
been procured through a suggestive eyewitness or show-up
identification procedure or when the eyewitness or show-up
identification is central to the case, the jury must also be
instructed to consider the impact of the any suggestive
procedures on the reliability of the eyewitness or show-up
identification. Although Hawaiʻi Standard Instruction 3.19A
regarding show-up identification recognizes this by including as
a factor “[w]hether the identification was the result of a
suggestive procedure, including actions taken or words spoken by
police or anyone else to the witness before, during, or after
the identification process,” Hawaiʻi Standard Instruction 3.19
regarding “Eyewitness Testimony” does not, and it should
therefore be amended to also include this language from Hawaiʻi
Standard Instruction 3.19A.22
22
In addition, in Cabagbag, we noted that an eyewitness’s heightened
confidence regarding the accuracy of an identification may not correlate with
heightened reliability of the identification, and we noted that although
empirical research has also undermined the seemingly common sense notion that
the confidence of the witness is a valid indicator of the accuracy of the
identification, courts and juries continue to place great weight on the
confidence expressed by the witness in assessing reliability. Cabagbag, 127
Hawai‘i at 311, 277 P.3d at 1036. The Utah Supreme Court explicitly rejected
the Biggers “level of certainty” factor based on studies indicating that
suggestive police procedures may influence a witness’s confidence. See Long,
721 P.2d at 490. The Massachusetts Supreme Judicial Court also notes the
impact of suggestiveness on witness confidence. Gomes, 22 N.E.3d at 915.
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As this holding also sets forth a new rule, it applies
prospectively to events occurring after publication of this
decision, i.e., to jury instructions given after the date of
this opinion.
E. Other Considerations
We also note that a trial court’s ruling that an
identification is admissible does not affect the State’s burden
at trial to prove beyond a reasonable doubt the identity of the
defendant as the perpetrator of the alleged crime. In this
sense, the judge and the jury may come to differing conclusions
regarding the reliability of an admitted eyewitness
identification. See Cabinatan, 132 Hawaiʻi at 77, 319 P.3d at
1085 (“[A] trial court may determine that a suggestive show-up
identification is sufficiently reliable to be admissible.
However, the jury is not bound by that determination and is free
to consider the issues of suggestiveness and reliability in
determining whether to credit the identification.”); see also,
Ramirez, 817 P.2d at 778-79 (discussing overlapping but distinct
roles of the judge and jury in determining whether proffered
eyewitness identification is reliable). By the same token, a
judge in a bench trial who receives evidence of a suggestive
eyewitness identification should consider relevant factors to
evaluate its reliability in determining whether the
identification should be credited or discredited.
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Finally, we note that factors affecting reliability are not
set in stone. Reliability is a totality of the circumstances
determination that can encompass more than the factors that are
included in our standard instructions or discussed in this
opinion. See State v. Kazanas, 138 Hawaiʻi 23, 39, 375 P.3d
1261, 1277 (2016) (citations omitted) (viewing a “‘totality of
the circumstances’ review as sweeping in any circumstance,
without limitation, for the court’s consideration.”). The
understanding of factors affecting reliability, including
suggestiveness, continues to evolve based on emerging empirical
research. Therefore, it is also possible that some of the
factors currently contained in our instructions could be amended
or deleted.23 Courts should also consider credible evidence
presented by the parties regarding the reliability of a
particular identification based on scientifically-supported
reliability factors. See Gomes, 22 N.E.3d at 918 (noting that
provisional jury instructions were not intended to preclude
expert testimony, which may “be important to elaborate on the
generally accepted [reliability] principles in a model
instruction and to explain how other variables relevant to the
particular case can affect the accuracy of the
identification.”); see also, Clopten, 223 P.3d 1103, 1108-15
23
See, e.g., the discussions regarding the “witness certainty” factor in
notes 15, 20, and 22, supra.
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(discussing expert testimony as an effective means of assisting
jurors with determining eyewitness identification reliability).
V. Conclusion
As explained above, however, the circuit court did not err
in finding Laraway’s show-up identification reliable under the
Padilla test in place at the time, and therefore did not err in
denying Kaneaiakala’s motion to suppress. Accordingly, the
ICA’s November 24, 2017 Judgment on Appeal, filed pursuant to
its November 7, 2017 SDO, is affirmed.
Michael J. Park /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Loren J. Thomas
for respondents /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
48