People v. Lemcke

IN THE SUPREME COURT OF
CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
v.
DESIRAE LEE LEMCKE et al.,
Defendants and Appellants.

S250108

Fourth Appellate District, Division Three
G054241

Orange County Superior Court
14CF3596

May 27, 2021

Justice Groban authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Corrigan, Liu,
Cuéllar, Kruger, and Jenkins concurred.
 PEOPLE v. LEMCKE
S250108

Opinion of the Court by Groban, J.

Defendant Charles Henry Rudd was convicted of assault
and robbery. The prosecution’s primary evidence at trial was
the testimony of the victim, who identified Rudd as her assailant
and confirmed that she had previously identified Rudd during a
photographic lineup. The trial court provided the jury an
instruction modeled on CALCRIM No. 315 that listed 15 factors
it should consider when evaluating eyewitness identification
evidence. One of those factors stated: “How certain was the
witness when he or she made an identification?” Rudd argues
that the certainty instruction violated his federal and state due
process rights to a fair trial (see U.S. Const., 5th & 14th
Amends.; Cal. Const., art. I, §§ 7, 15) because empirical research
has shown that a witness’s confidence in an identification is
generally not a reliable indicator of accuracy.
We reject Rudd’s due process claims. When considered in
the context of the trial record as a whole, listing the witness’s
level of certainty as one of 15 factors the jury should consider
when evaluating identification testimony did not render Rudd’s
trial fundamentally unfair. (See Salas v. Cortez (1979) 24 Cal.3d
22, 27 (Salas) [“The touchstone of due process is fundamental
fairness”]; People v. Foster (2010) 50 Cal.4th 1301, 1335 (Foster)
[in determining whether a jury instruction violated a
defendant’s right to due process, the “ ‘instruction “may not be
judged in artificial isolation,” but must be considered in the
context of the instructions as a whole and the trial record’ ”

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(italics omitted)].) As we explained in a prior decision approving
CALJIC No. 2.92’s similarly worded instruction on witness
certainty, the instruction does not direct the jury that “certainty
equals accuracy.” (People v. Sánchez (2016) 63 Cal.4th 411, 461–
463 (Sánchez); see People v. Johnson (1992) 3 Cal.4th 1183,
1231–1232 (Johnson) [approving CALJIC No. 2.92’s certainty
instruction].) Although the language may prompt jurors to
conclude that a confident identification is more likely to be
accurate, Rudd was permitted to call an eyewitness
identification expert who explained the limited circumstances
when certainty and accuracy are positively correlated.
Moreover, the court provided additional instructions directing
the jury that it was required to consider the testimony of the
expert witness, that the prosecution retained the burden to
prove Rudd’s identity as the perpetrator beyond a reasonable
doubt, and that witnesses sometimes make honest mistakes.
Despite the absence of a constitutional violation, we
nonetheless agree with amici curiae that a reevaluation of the
certainty instruction is warranted. Contrary to widespread lay
belief, there is now near unanimity in the empirical research
that “eyewitness confidence is generally an unreliable indicator
of accuracy.” (State v. Henderson (N.J. 2011) 27 A.3d 872, 899
(Henderson); see Commonwealth v. Gomes (Mass. 2015) 22
N.E.3d 897, 912–913 (Gomes); State v. Guilbert (Conn. 2012) 49
A.3d 705, 721–723 (Guilbert); State v. Lawson (Or. 2012) 291
P.3d 673, 704 (Lawson).) As currently worded, CALCRIM No.
315 does nothing to disabuse jurors of that common
misconception, but rather tends to reinforce it by implying that
an identification is more likely to be reliable when the witness
has expressed certainty. This is especially problematic because
many studies have also shown eyewitness confidence is the

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single most influential factor in juror determinations regarding
the accuracy of an identification. (See Lawson, at pp. 704–705.)
Given the significance that witness certainty plays in the
factfinding process, we refer the matter to the Judicial Council
and its Advisory Committee on Criminal Jury Instructions to
evaluate whether or how the instruction might be modified to
avoid juror confusion regarding the correlation between
certainty and accuracy. (See Cal. Rules of Court, rule 2.1050(d).)
Acting pursuant to our supervisory powers, we further direct
that until the Judicial Council has completed its evaluation,
trial courts should omit the certainty factor from CALCRIM No.
315 unless the defendant requests otherwise.
I. BACKGROUND
A. The Crime and Investigation
1. The assault and initial investigation
In July of 2014, Monica Campusano traveled to a motel to
visit a friend. While walking down a hallway, Campusano saw
a woman standing outside room 216 and a man standing just
inside the doorway. The woman asked if she could use
Campusano’s cell phone. As Campusano began to retrieve her
phone, the man in the doorway suddenly struck her in the face
and pulled her into room 216. The man then punched and
kicked Campusano repeatedly, causing her to lose
consciousness.
When Campusano regained consciousness she was alone
and her purse and phone were gone. She immediately went to
the motel lobby and called 9-1-1. Ricardo Velasquez, an officer
of the Santa Ana Police Department, responded to the call and
interviewed Campusano at the motel. Campusano described
her assailant as an African-American male, between six feet

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three inches to six feet five inches in height and weighing 260 to
300 pounds. Campusano described the female who had asked to
use her phone as a “heavy set white female,” standing
approximately five feet six inches in height and weighing over
200 pounds.
After arranging an ambulance for Campusano, Officer
Velasquez obtained records from the motel manager that
showed room 216 was registered to a woman named Desirae Lee
Lemcke. Officer Velasquez ran a records check on Lemcke and
determined that she matched Campusano’s description of the
female standing outside the motel room. The records check also
revealed Lemcke had previously obtained a “no contact” order
against a man named Charles Rudd, who the order described as
an African-American male, six feet three inches in height and
weighing approximately 250 pounds.
Later that evening, Officer Velasquez created a six-pack
photographic lineup that included an image of Rudd and then
drove to the hospital where Campusano was receiving
treatment. When Velasquez arrived, Campusano was “under
anesthesia,” but stated that she could answer questions. Officer
Velasquez showed her the photographic lineup and asked
whether she saw the person who had attacked her. Campusano
pointed to Rudd’s photograph and stated that she recognized his
nose, mouth and jaw area. She signed her name by the photo
but used an incorrect spelling.
2. Follow-up investigation
Approximately three months after Campusano initially
identified Rudd, Santa Ana Police Department Detective Adrian
Silva contacted her to discuss the details of the assault. Silva
showed Campusano a photographic lineup of several females

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that included an image of Lemcke. Campusano selected
Lemcke’s photograph. Campusano also mentioned for the first
time that the male assailant had a tattoo on his neck.
Based on the information Campusano had provided,
Detective Silva prepared a photographic lineup showing images
of two neck tattoos. The first photograph showed the neck tattoo
of Rudd and the second showed the neck tattoo of Lemcke’s
current boyfriend. The men’s faces were not shown in the
photographs.
Silva met with Campusano again six days later and asked
whether either of the tattoos resembled the one she had seen on
her assailant’s neck. Campusano selected the photograph of
Rudd’s tattoo, explaining that it looked “more like the one that
she remembered.” Silva then asked Campusano whether she
recalled having previously selected an image of an African-
American male during a photographic lineup. After Campusano
said yes, Silva showed her the image of Rudd that Officer
Velasquez had used in the original photographic lineup and
asked whether “she remembered that this was
[the] . . . photo . . . that she had already identified.” Campusano
confirmed it was the same photograph. Silva then showed
Campusano a second six-pack photographic lineup that did not
include Rudd. Campusano stated that she did not recognize
anyone, and then pointed back to the photograph of Rudd and
said, “for sure it was [him].”
In October of 2014, the Orange County District Attorney
filed an information charging Lemcke and Rudd with second-

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degree robbery (Penal Code, §§ 211, 212.5, subd. (c))1 and
aggravated assault by means of force likely to result in great
bodily injury (§ 245, subd. (a)(l)). The information also charged
Rudd with battery with serious bodily injury. (§ 243, subd. (d).)
B. Trial
1. Prosecution’s witnesses
At trial, Campusano testified about her recollection of the
assault. Campusano stated that she had a good view of her
assailant during the attack and “remember[ed] his face well.”
The prosecution asked Campusano whether she saw the person
who had attacked her in the courtroom. Campusano said yes,
explaining that he was sitting at the defense table. The
prosecutor asked Campusano to describe what the person was
wearing. Campusano then stood up and stated that the
individual was wearing a blue shirt with a black shirt
underneath. When asked what features of his face she
remembered, Campusano stated: “I remember his face, his
tattoo and his look, like he was looking with anger.” Campusano
also confirmed that she had selected Rudd from a photographic
lineup Officer Velasquez had shown to her at the hospital.
On cross-examination, Campusano admitted that she
could not see the defense table when she had first identified
Rudd during her direct examination, which is why she had to
stand up to describe his clothing. Campusano explained that
she had identified Rudd before seeing him because “it [was]
logical that he was going to be in the courtroom.” She reiterated

1
Unless otherwise noted, all further statutory citations are
to the Penal Code.

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that she “remember[ed] [Rudd’s] face well” and that it was
“impossible for [her] not to recognize his face.”
Defense counsel questioned Campusano about various
inconsistent statements she had made throughout the
investigation, including her initial failure to inform Officer
Velasquez that her attacker had a neck tattoo, her description
of what the perpetrator had said to her during the attack, where
she was when she regained consciousness and the extent of her
injuries. Defense counsel also elicited testimony in which
Campusano admitted she had previously been convicted of
soliciting prostitution and lying to a police officer. Campusano
further admitted that after having spoken with law enforcement
about her assault, she applied for a “U visa,” a form of temporary
visa that provides legal status for noncitizen victims of serious
crimes who assist in the investigation. (See People v. Morales
(2018) 25 Cal.App.5th 502, 506; 8 U.S.C. § 1101(a)(15).) The
defense introduced a copy of Campusano’s visa application,
which stated that she had been kidnapped during the incident,
an allegation she never made to the investigating officers.
Officer Velasquez and Detective Silva also testified at trial
regarding their role in the investigation. Both officers explained
what Campusano had told them during their interviews and
described how they had administered the photographic lineups.
(See ante, at pp. 3–5.)
2. Defense’s expert witness on eyewitness
identifications
Mitchell Eisen, a psychology professor, testified on behalf
of the defense as an expert on eyewitness identifications. Eisen
discussed a wide range of subjects related to the reliability of
eyewitness identifications including the procedures law

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enforcement should follow to ensure a fair, nonsuggestive
identification process. Several of the procedures Eisen
described differed from the procedures that Velasquez and Silva
had used when administering Campusano’s identifications.
Eisen also identified various factors that can affect a
witness’s identification, including what Eisen referred to as the
“commitment effect.” Eisen explained that once a witness has
made an initial identification of a person, the witness is likely to
select that person again in any future identification regardless
of the accuracy of the initial identification. Eisen emphasized
that the commitment effect is particularly problematic for in-
trial identifications because a witness who has agreed to testify
is normally prepared to “reassert their belief” as to whatever
identification he or she had previously made. According to
Eisen, a witness’s statements at trial regarding an identification
are not reflective of memory, but rather reflect “their honest
belief that they’ve come to believe after a long process that starts
at the very first viewing, and every identification procedure that
follows and every discussion and every piece of information they
get . . . until [the trial].”
Eisen also testified about the correlation between a
witness’s level of certainty and the accuracy of the identification.
Eisen stated that research on that issue had “come a long way,”
explaining: “Just a few years ago, if you had an expert in my
position sitting here, they might say something like confidence
is not related to accuracy in any regard, but that’s not really
true.” According to Eisen, current research suggested that
“confidence” can be “useful” when there has been a “fair lineup
soon after the event.” However, “once outside that window and
you go forward, that moment in time when [the witness] made

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an [identification], once you get past that, confidence is not
related to accuracy in any regard.”
Eisen further explained that an expression of certainty is
only useful when the identification is made soon after the event
because, as the investigation progresses, a witness will normally
receive additional information that can unconsciously bolster
his or her confidence. Eisen clarified that this additional
information may come in the form of positive feedback from law
enforcement or even the prosecutor’s decision to file charges
against the suspect: “If you inform [the witness] inadvertently
[or] purposefully . . . that they chose the right picture, we can
drive confidence through the ceiling. [A witness can] become
very, very confident in their choice even when they weren’t
originally.” Eisen continued, “So what these studies show . . . is
really the fundamental point and indisputable, that . . . [b]y the
time they get to trial, they learned at least the government
believes that they are the right person and that’s why they are
prosecuting. It gives people sort of confirming feedback you can
manipulate and drive confidence, irrespective of memory. . . . If
we are going to look at confidence at all, only be confident in the
moment they make the selection from a fair and unbiased
identification test.”
3. Jury instructions on witness certainty
After the close of evidence, the trial court heard argument
regarding the parties’ proposed jury instructions. The
prosecution requested an instruction modeled on CALCRIM No.
315 that listed 15 factors the jury should consider when
evaluating the credibility and accuracy of eyewitness
identification evidence. Counsel for Rudd requested that the
court strike the eleventh factor, which directed the jury to

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consider: “How certain was the witness when he or she made an
identification?” Counsel explained that his objection was based
on a concurring opinion in Sánchez, supra, 63 Cal.4th 411, that
questioned the continuing validity of the certainty instruction in
light of empirical research finding little correlation “between
witness confidence and witness accuracy.”
The trial court denied Rudd’s request, explaining that the
certainty language set forth in CALCRIM No. 315 was
consistent with the defense expert’s testimony that confidence
can be reliable under certain circumstances. The court
acknowledged the expert had cast doubt on the usefulness of
certainty more generally but concluded that the defense could
raise those points at closing argument.
4. Closing argument
At closing argument, the prosecution focused on
Campusano’s eyewitness testimony, asserting that she had
consistently identified Rudd and Lemcke as the perpetrators
and that the “essentials of her testimony” about the event had
never changed. Acknowledging that the accuracy of
Campusano’s identification was “obviously an issue,” the
prosecutor directed the jury to CALCRIM No. 315, explaining
that it provided a “tool to evaluate an eyewitness identification.”
The prosecutor also reminded the jury that it had heard an
expert testify about the subject “for quite a while.” The
prosecutor then presented argument as to why various factors
in CALCRIM No. 315 suggested Campusano’s identification was
accurate, explaining that she had provided an accurate
description of Rudd prior to the identification, she had picked
him out of a group of people, and she had never failed to identify
him. Regarding Campusano’s level of certainty, the prosecutor

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asserted that Campusano “was certain the entire time. And she
came in here and saw [Rudd] when she walked into court and
said, ‘that’s him.’ ”
Rudd’s closing argument focused primarily on
Campusano’s credibility as a witness. Defense counsel argued
that Campusano had made numerous inconsistent statements
about the event and been argumentative throughout her cross-
examination. Counsel also emphasized that Campusano had
been convicted of prostitution and lying to the police, arguing
that these prior convictions “show[ed] a readiness to lie to a
police officer, a readiness to lie to the judge, and a readiness to
lie to you folks.” In addition to questioning Campusano’s
credibility, the defense presented alternative theories about
what had actually occurred at the motel. First, counsel posited
that Campusano may have gone to the motel to solicit
prostitution and then got into a fight with a dissatisfied
customer. Second, counsel theorized that Campusano had “to
claim she was a victim of a violent felony in order for her to get
that U visa to clear up her immigration status.”
Defense counsel then addressed Campusano’s
identification of Rudd, asserting that the procedures the police
had used were suggestive and unreliable. Counsel noted that
the first identification had occurred while Campusano was
under anesthesia, and that the second identification was
“extremely suggestive” because Detective Silva had merely
shown Campusano the same photograph she had selected
during the initial lineup that Officer Velasquez had conducted.
Finally, defense counsel argued that Eisen’s expert testimony
showed Campusano’s in-court identification was of no value,
and that “confidence does not equal reliability [or] . . . accuracy.”

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The jury convicted Lemcke and Rudd on all counts.
C. Rudd’s Appeal
Rudd raised a single issue on appeal, contending that his
“state and federal due process rights were violated when the
court instructed the jury . . . to consider an eyewitness’s level of
certainty when evaluating an identification.” 2
The Court of Appeal acknowledged that numerous
scientific studies had found that a “witness’s certainty does not
make the identification any more likely to be accurate.” The
court explained, however, that Johnson, supra, 3 Cal.4th 1183,
and Sánchez, supra, 63 Cal.4th 411, had expressly approved the
use of similarly worded instructions on witness certainty. While
noting that a concurring opinion in Sánchez questioned the
continuing validity of such an instruction, the court concluded
that it was “bound by the decisions in Sánchez and Johnson.”
Rudd filed a petition for review seeking resolution of the
following question: “Does instructing a jury with CALCRIM No.
315, which directs the jury to consider an eyewitness’s level of
certainty when evaluating an identification, violate a
defendant’s federal and state due process rights?”3

2
Codefendant Lemcke filed a separate appeal that raised
an unrelated instructional error claim. The Court of Appeal
rejected her claim, and we denied her petition for review.
3
Rudd’s petition also listed a second, broader question: “Are
rules that assign the trial court a stronger gatekeeping role in
the admission of eyewitness identification required or
advisable?” Rudd’s briefing, however, does not address this
“gatekeeper” issue and he did not raise the issue in either the
trial court or the Court of Appeal. We therefore decline to
address the merits of this claim, deeming it both abandoned and

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II. DISCUSSION
A. The Instruction on Witness Certainty Did Not
Violate Rudd’s Due Process Rights
Rudd has not challenged the procedures that Officer
Velasquez and Detective Silva used to conduct the photographic
lineups that preceded Campusano’s identifications, nor has he
challenged the admission of any of the identification evidence.
(See generally People v. Ochoa (1998) 19 Cal.4th 353, 412
[assessing whether lineup procedures rendered identification
evidence inadmissible].)4 Instead, his sole claim is that the trial
court violated his right to due process by listing the witness’s

forfeited. (See People v. Tanner (1979) 24 Cal.3d 514, 518, fn. 2
[issue raised in the notice of appeal, but not addressed in the
briefing, deemed abandoned]; Barker v. Lull Engineering Co.
(1978) 20 Cal.3d 413, 422, fn. 3 [courts generally “assume”
appellant has “abandoned any claim” that is not briefed]; In re
Sheena K. (2007) 40 Cal.4th 875, 880 [“Ordinarily, a criminal
defendant who does not challenge an assertedly erroneous
ruling of the trial court in that court has forfeited his or her right
to raise the claim on appeal”].)
4
As discussed in more detail below (see post, at pp. 31–32
& fn. 16), the Legislature recently adopted a statute that
requires law enforcement agencies to enact regulations
mandating the use of certain procedures when administering
“photo lineups and live lineups with eyewitnesses.” (§ 859.7,
subd. (a).) The legislation was not in effect when Campusano
made her identifications and Rudd has not raised any claim with
respect to the new statute.

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level of certainty as one of 15 factors the jury should consider
when evaluating eyewitness identification testimony. 5

5
The full instruction the trial court provided to the jury in
this case, which is essentially identical to CALCRIM No. 315,
stated as follows:
“You have heard eyewitness testimony identifying the
defendant. As with any other witness, you must decide
whether an eyewitness gave truthful and accurate testimony.
In evaluating identification testimony, consider the following
questions:
• “Did the witness know or have contact with the defendants
before the event?
• “How well could the witness see the perpetrator?
• “What were the circumstances affecting the witness’s
ability to observe, such as lighting, weather conditions,
obstructions, distance, and duration of observation?
• “How closely was the witness paying attention?
• “Was the witness under stress when he or she made the
observation?
• “Did the witness give a description and how does that
description compare to the defendants?
• “How much time passed between the event and the time
when the witness identified the defendants?
• “Was the witness asked to pick the perpetrator out of a
group?
• “Did the witness ever fail to identify the defendants?
• “Did the witness ever change his or her mind about the
identification?
• “How certain was the witness when he or she made an
identification?
• “Are the witness and the defendant of different races?

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Rudd’s claim is based on empirical research showing that
confidence in an identification is generally not a reliable
indicator of accuracy. (See Gomes, supra, 22 N.E.3d at pp. 912–
913; Guilbert, supra, 49 A.3d at pp. 721–723; Lawson, supra, 291
P.3d at pp. 704–705; Henderson, supra, 27 A.3d at pp. 898–899.)
Rudd contends that the certainty instruction set forth in
CALCRIM No. 315 implies just the opposite, effectively causing
jurors to “equat[e] certainty with accuracy” and to “place more
value than merited on the eyewitness’s confidence.” In Rudd’s
view, if a trial court elects to instruct a jury on witness certainty,
“[d]ue process requires that the [instruction be] accompanied by
information reflecting scientific research.”
“The touchstone of due process is fundamental fairness.”
(Salas, supra, 24 Cal.3d at p. 27; see Gagnon v. Scarpelli (1973)
411 U.S. 778, 790 [“[F]undamental fairness [is] the touchstone
of due process”].) A jury instruction may “ ‘so infuse[] the trial
with unfairness as to deny due process of law.’ ” (Estelle v.
McGuire (1991) 502 U.S. 62, 75 (Estelle).) However, “ ‘not every
ambiguity, inconsistency, or deficiency in a jury instruction rises
to the level of a due process violation. The question is “ ‘whether
the ailing instruction . . . so infected the entire trial that the

• “Was the witness able to identify other participants in the
crime?
• “Was the witness able to identify the defendant in a
photographic or physical lineup?
• “Were there any other circumstances affecting the
witness’s ability to make an accurate identification?
“The People have the burden of proving beyond a reasonable
doubt that it was the defendant who committed the crime. If the
People have not met this burden, you must find the defendant
not guilty.”

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resulting conviction violates due process.’ ” ’ ” (People v. Mills
(2012) 55 Cal.4th 663, 677, quoting Estelle, p. 72.) “ ‘It is well
established that the instruction “may not be judged in artificial
isolation,” but must be considered in the context of the
instructions as a whole and the trial record.’ ” (Foster, supra, 50
Cal.4th at p. 1335, italics omitted; see People v. Haskett (1990)
52 Cal.3d 210, 235.) “ ‘If the charge as a whole is ambiguous,
the question is whether there is a “ ‘reasonable likelihood that
the jury has applied the challenged instruction in a way’ that
violates the Constitution.” ’ ” (Mills, p. 677.)
Over the past 30 years, we have repeatedly endorsed the
use of instructions that direct the jury to consider an
eyewitness’s level of certainty when evaluating identification
evidence. In People v. Wright (1988) 45 Cal.3d 1126 (Wright),
we approved CALJIC No. 2.92, a predecessor to CALCRIM No.
315, that includes similar language regarding witness
certainty.6 Rejecting arguments similar to those Rudd raises
here, we also concluded that an “instruction on eyewitness
identification factors should . . . . [¶] . . . not take a position as to

6
The language in CALJIC No. 2.92 directs the jury to
consider “[t]he extent to which the witness is either certain or
uncertain of the identification.” Although this language differs
somewhat from CALCRIM No. 315, which directs the jury to
consider “[h]ow certain was the witness when he or she made an
identification,” neither party has argued that this slight
difference in phrasing is material. For purposes of Rudd’s due
process claims, we find no material distinction between the two
instructions. In effect, the instructions set forth two ways of
saying the same thing: that jurors should consider the witness’s
level of certainty when assessing the credibility and accuracy of
the identification testimony.

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the impact of each of the psychological factors listed” (Wright, at
p. 1141), and that “[the] explanation of the effects of those factors
is best left to argument by counsel, cross-examination of the
eyewitnesses, and expert testimony where appropriate” (id. at
p. 1143; see People v. McDonald (1984) 37 Cal.3d 351
(McDonald) [approving the use of expert testimony describing
how psychological factors can affect the reliability of eyewitness
identifications]).
Four years later, we rejected a claim that the trial court
erred when it refused to strike the witness certainty factor set
forth in CALJIC No. 2.92. (Johnson, supra, 3 Cal.4th 1183.)
Citing Wright, supra, 45 Cal.3d 1126, we reiterated that an
instruction on eyewitness identification testimony “should not
take a position as to the impact of each of the psychological
factors listed” (Johnson, at p. 1230) and that CALJIC No. 2.92
“normally provides sufficient guidance on the subject . . . .”
(Johnson, at p. 1230).
Most recently, in Sánchez, supra, 63 Cal.4th 411, we
rejected a claim challenging CALJIC No. 2.92’s certainty
language based on “scientific studies [finding] that . . . there is,
at best, a weak correlation between witness certainty and
accuracy.” (Sánchez, at p. 461.) We explained that the studies
defendant had cited were “nothing new” (id. at p. 462), noting
that our decision in McDonald, supra, 37 Cal.3d 351, decided 32
years earlier, had “cited some of [those studies] . . . [in support
of its] holding that the trial court has discretion to admit expert
testimony regarding the reliability of eyewitness identification”
(Sánchez, at p. 462). We further explained that our prior
decisions had “specifically approved” the use of the “certainty
factor,” and that the instruction was facially neutral, “telling the
jury only that it could consider [a witness’s level of certainty]. It

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did not suggest that certainty equals accuracy.” (Ibid.) Finally,
we observed that the instruction was at least partially beneficial
to the defendant because some of the trial witnesses had
expressed uncertainty in their identification and concluded that
“[a]ny reexamination of our previous holdings in light of
developments in other jurisdictions should await a case
involving only certain identifications.” (Ibid.)
In a concurring opinion, Justice Liu disagreed with the
majority’s assertion that the instruction was neutral, arguing
that the language in CALJIC No. 2.92 “naturally ‘prompt[ed]
the jury to conclude that an eyewitness identification is more
reliable when the witness expresses greater certainty.’ ”
(Sánchez, supra, 63 Cal.4th at p. 495 (conc. opn. of Liu, J.).)
Although Justice Liu agreed that any instructional error was
harmless based on the additional evidence of guilt presented at
trial, he contended that this court should reevaluate “whether it
is proper . . . to instruct that witness certainty is a factor
bearing on the accuracy of an identification that juries should
consider.” (Id. at p. 498.)
Rudd disagrees with our prior decisions in Wright,
Johnson and Sánchez. He contends that instructing the jury to
consider an eyewitness’s level of certainty, without clarifying
the limited correlation between certainty and accuracy, violates
due process in two ways. First, the instruction “lowers the
prosecution’s burden of proof” by causing jurors to “equat[e]
certainty with accuracy, when science establishes otherwise.”
Second, the instruction denies the defendant “a ‘meaningful
opportunity to present a complete defense’ ” as to “why the
identification was flawed . . . .”

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 PEOPLE v. LEMCKE
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Regarding Rudd’s first contention, we find nothing in
CALCRIM No. 315’s instruction on witness certainty that
operates to “lower the prosecution’s burden of proof.” As
Sánchez, supra, 63 Cal.4th 411, explained with respect to
CALJIC No. 2.92’s similarly worded instruction, the instruction
does not direct the jury that “certainty equals accuracy.”
(Sánchez, at p. 462.) Nor does the instruction state that the jury
must presume an identification is accurate if the eyewitness has
expressed certainty. (Cf. Francis v. Franklin (1985) 471 U.S.
307, 316 [instruction that “directs the jury to presume an
essential element of the offense” violates due process].) Instead,
the instruction merely lists the witness’s level of certainty at the
time of identification as one of 15 different factors that the jury
should consider when evaluating the credibility and accuracy of
eyewitness testimony. The instruction leaves the jury to decide
whether the witness expressed a credible claim of certainty and
what weight, if any, should be placed on that certainty in
relation to the numerous other factors listed in CALCRIM No.
315. Indeed, even Rudd acknowledges that, on its face, the
instruction is “superficially neutral.”
Although the wording of the instruction might cause some
jurors to infer that certainty is generally correlative of accuracy
(see post, at pp. 26–39), Rudd was permitted to present expert
witness testimony to combat that inference. Rudd’s expert
(Eisen) testified that the only time certainty may be useful in
assessing accuracy is when the identification is made in close
temporal proximity to the event and law enforcement has
utilized nonsuggestive procedures. According to Eisen, “outside
that window, . . . confidence is not related to accuracy in any
regard.” Eisen emphasized that in-trial identification testimony
is particularly meaningless because it does not “reflect[]

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 PEOPLE v. LEMCKE
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memory.” Eisen also described the procedures law enforcement
should follow to ensure an accurate identification and answered
a series of hypothetical questions that were designed to show
those procedures were not followed in this case. (See People v.
Vang (2011) 52 Cal.4th 1038, 1045 [expert may render opinion
testimony based on hypothetical question that are rooted in the
facts shown by the evidence].)
Nothing in CALCRIM No. 315 suggested that the jury
should ignore Eisen’s expert opinion on witness certainty. To
the contrary, the jury received a separate instruction on expert
testimony (CALCRIM No. 332) directing that it “must consider
th[ose] opinions.” (Italics added.) The jury also received a
general instruction on witness testimony explaining that
“[p]eople sometimes honestly . . . make mistakes about what
they remember” and that the jurors were responsible for
“judg[ing] the credibility or believability of the witnesses.” The
jury “thus remained free to exercise its collective judgment to
reject what it did not find trustworthy or plausible.” (Cupp v.
Naughten (1973) 414 U.S. 141, 149 (Cupp).)
Additional instructions the jury received in this case
further undercut Rudd’s contention that the certainty language
lowered the prosecution’s burden of proof. (See Foster, supra, 50
Cal.4th at p. 1335 [“ ‘the instruction “may not be judged in
artificial isolation,” but must be considered in the context of the
instructions as a whole . . .’ ”].) The trial court expressly
directed the jury that Rudd was presumed innocent, and that
the prosecution had the burden of proving all elements of the
crime beyond a reasonable doubt. The instruction on eyewitness
identification evidence reiterated that requirement with respect
to Rudd’s identity, stating: “The People have the burden of
proving beyond a reasonable doubt that it was the defendant

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 PEOPLE v. LEMCKE
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who committed the crime. If the People have not met this
burden, you must find the defendant not guilty.” (See Cupp,
supra, 414 U.S. at p. 149 [instruction directing that witnesses
were presumed to be truthful did not lower the prosecution’s
burden of proof where the court provided additional instructions
that “fully and explicitly [charged the jury] about the
presumption of innocence and the State’s duty to prove guilt
beyond a reasonable doubt”].)
Our conclusion that CALCRIM No. 315’s certainty
instruction did not operate to lower the prosecution’s burden of
proof under the facts presented here finds substantial support
in federal case law.7 In Cupp, supra, 414 U.S. 141, the
prosecution called two witnesses who identified the defendant
as the perpetrator of an armed robbery; the defendant called no
witnesses. The trial court instructed the jury that “ ‘[e]very

7
While the protections afforded under the due process
clauses of the California Constitution and the federal
Constitution are not coterminous (see People v. Ramos (1984) 37
Cal.3d 136, 151–154 [jury instruction found to violate state due
process clause despite having been found to comport with
federal due process clause]; People v. Buza (2018) 4 Cal.5th 658,
684), we have previously acknowledged that, as with the federal
Constitution, the “essence” of our state due process clause is
“fundamental[] fairn[ess in the] decision-making process.”
(Ramos, at p. 153; cf. Lassiter v. Department of Social Services
(1981) 452 U.S. 18, 24 [due process “expresses the requirement
of ‘fundamental fairness’ ”].) Moreover, Rudd has failed to
present any separate argument or analysis with respect to the
federal and state due process clauses. Indeed, the portion of his
brief addressing his due process claims cites almost exclusively
to federal authorities.

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 PEOPLE v. LEMCKE
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witness is presumed to speak the truth,’ ” but clarified that the
presumption “ ‘may be overcome’ ” by other evidence. (Id. at p.
142.) After being convicted, the defendant filed a habeas
petition arguing that “the presumption-of-truthfulness charge
[violated his due process rights by] shift[ing] the State’s burden
to prove guilt beyond a reasonable doubt and forc[ing] [him]
instead to prove his innocence.” (Id. at p. 143.)
The Supreme Court rejected the claim. Although the court
acknowledged that numerous federal circuits had disapproved
similar instructions on the basis that they tended to “ ‘shift’ the
prosecution’s burden of proof” (Cupp, supra, 414 U.S. at p. 145),
it noted that none had found the instruction violated due
process. (Id. at p. 146.) The court explained that the mere fact
several circuits had deemed the instruction “[un]desirable from
the viewpoint of sound judicial practice” was “not, without more,
authority for declaring . . . the giving of the
instruction . . . invalid [under the Due Process Clause].” (Ibid.)
The court went on to hold that, viewed in the context of the
record as a whole, the presumption-of-truthfulness instruction
did not “impliedly” (id. at p. 148) shift the burden to defendant
to prove his innocence. In support, the court emphasized that
the language of the instruction did not compel the jury to accept
the testimony of any witness and that other instructions had
“explicit[ly] . . . affirm[ed]” that the prosecution had the
“obligation . . . to prove guilt beyond a reasonable doubt.” (Id. at
p. 147.)
The instruction in Cupp was found not to violate due
process despite having effectively directed the jury that the
prosecution’s eyewitnesses were presumed to speak the truth.
We therefore fail to see how a due process violation could be
found in a case like this one, where the instruction merely

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 PEOPLE v. LEMCKE
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directed the jury that it should consider the eyewitness’s level of
certainty as one of 15 enumerated factors and where the
defendant was permitted to present expert testimony explaining
that certainty is generally not predictive of accuracy.
Rudd’s argument that the certainty instruction violated
his due process rights by denying him “a ‘meaningful
opportunity to present a complete defense’ ” as to why the
identification was flawed fares no better. The record shows that
Rudd was permitted to put on a vigorous defense on the issue of
identity. As explained above, Rudd called an eyewitness
identification expert who testified at length about the weak
correlation between certainty and accuracy, particularly with
respect to in-court identifications. Defense counsel emphasized
that testimony at closing argument, explaining: “A lot of people
think the more confident you are in the eyewitness
identification, the more accurate it can be, but nothing could be
farther from the truth. Just listen to Dr. Eisen’s testimony.” 8
In addition, Rudd had the opportunity to cross-examine
Campusano and the investigating officers regarding her
identifications and the procedures used during the photographic

8
Rudd argues that jury instructions are a more effective
mechanism than expert testimony to educate the jury about the
limited correlation between certainty and accuracy. As
discussed in more detail below, there appears to be an emerging
dispute in the research regarding the efficacy of enhanced jury
instructions on eyewitness identifications. (See post, at pp. 36–
37.) But even if we assume jury instructions can be a more
effective method than expert testimony alone, Rudd has cited no
authority suggesting that the due process clause entitles a
defendant to a jury instruction summarizing empirical research
that can otherwise be presented through expert testimony.

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 PEOPLE v. LEMCKE
Opinion of the Court by Groban, J.

lineups. On cross-examination, Campusano admitted she could
not see Rudd when she made her in-court identification,
explaining that “it was logical” the person who had committed
the crime would be in the courtroom. Defense counsel also
elicited numerous inconsistencies in other aspects of
Campusano’s recollection of the crime, including her statements
as to when she had regained consciousness, the extent of her
injuries and when she had told law enforcement that the
perpetrator had a tattoo.
Defense counsel’s cross-examination of the investigating
officers explored problematic aspects of the identification
procedures. Officer Velasquez admitted that the first
identification had occurred while Campusano was receiving
treatment in the hospital. Detective Silva admitted that during
the second identification, he showed Campusano the same
photograph of Rudd that Velasquez had used at the first
identification. Given the expert testimony and cross-
examination that occurred in this case, we find no merit in
Rudd’s claim that he was denied the opportunity to present a
complete defense on the issue of identity.
Although unable to cite any California or federal authority
that has rejected the type of certainty instruction set forth in
CALCRIM No. 315, Rudd argues that several state courts have
done so. As discussed in more detail below, however, none of
those jurisdictions rejected the instruction on due process
grounds. (See post, at pp. 26–29.) Instead, each of those courts
acted pursuant to their supervisory powers, concluding the
instruction should be avoided or supplemented to avoid the
possibility that jurors might wrongly assume there is generally

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 PEOPLE v. LEMCKE
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a strong correlation between certainty and accuracy. 9 While an
enhanced or modified version of the certainty instruction might
well be advisable (an issue we examine in more detail below),
that alone does not establish a due process violation. (See Mills,
supra, 55 Cal.4th at p. 677 [“ ‘not every ambiguity,
inconsistency, or deficiency in a jury instruction rises to the level
of a due process violation’ ”]; People v. Huggins (2006) 38 Cal.4th
175, 192 [“even if . . . the trial court’s instruction created
ambiguity, it did not infringe on defendant’s due process
rights”]; People v. Engelman (2002) 28 Cal.4th 436, 445
(Engelman) [although instruction regarding jury misconduct
was “inadvisable and unnecessary” because it might mislead
jurors, the instruction did not violate any constitutional right];
Cupp, supra, 414 U.S. at p. 147.)

9
The few cases Rudd cites that do actually address a due
process claim have little relevance to the instructional error
claim he raises here. In Neder v. United States (1999) 527 U.S.
1, 4 and People v. Mil (2012) 53 Cal.4th 400, 409–410, for
example, the courts found a due process violation where the trial
court’s charge to the jury had omitted an essential element of
the crime. In Crane v. Kentucky (1986) 476 U.S. 683, the court
found a due process violation where the trial court excluded
evidence regarding the coercive circumstances under which the
defendant’s confession was made. In Estelle, supra, 502 U.S. 62,
the court held that the admission of evidence related to the
defendant’s uncharged criminal conduct did not violate due
process. Finally, in Clark v. Brown (9th Cir. 2006) 450 F.3d 898,
908, the Ninth Circuit found a due process violation where the
trial court had refused to instruct the jury on the defendant’s
theory that he lacked an independent felonious intent at the
time he started a fire, which would have precluded a conviction
on the charged offense. All these cases are far afield from the
situation presented here.

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 PEOPLE v. LEMCKE
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In sum, when considered “ ‘in the context of the
instructions as a whole and the trial record’ ” (Foster, supra, 50
Cal.4th at p. 1335, italics omitted), we conclude that listing the
witness’s level of certainty as one of 15 factors the jury should
consider when evaluating an eyewitness identification did not
render Rudd’s trial fundamentally unfair or otherwise amount
to a due process violation.
B. Reevaluation of CALCRIM No. 315’s
Instruction on Witness Certainty
Amici curiae argue that even if CALCRIM No. 315’s
instruction on witness certainty does not amount to a due
process violation, we should utilize our supervisory powers to
either “strike the certainty factor” or direct trial courts to
provide an “enhanced jury charge” summarizing the empirical
research regarding the correlation between certainty and
accuracy.
The Attorney General acknowledges that the absence of a
due process violation “does not necessarily mean that a better
instruction could not be devised” and that courts should
“periodically examine procedures relating to eyewitness
identification, to see whether they can be improved.” The
Attorney General contends, however, that “the appropriate way
forward” for any such changes “is through the procedure
prescribed by the Rules of Court: making suggestions to the
committee that advises the Judicial Council as to instructional
‘improve[ments],’ and circulating proposed changes for ‘public
comment.’ (Cal. Rules of Court, rule 2.1050(d).)”
Several jurisdictions have concluded that the type of
witness certainty instruction at issue in this case is potentially
misleading and can be improved upon. The Supreme Court of

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 PEOPLE v. LEMCKE
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New Jersey and the Massachusetts Supreme Judicial Court
both modified their instructions on witness certainty after
having convened special proceedings to assess the scientific
evidence regarding eyewitness identifications. (See Henderson,
supra, 27 A.3d 872 [implementing recommendations of a special
master appointed to investigate empirical research on
eyewitness identification evidence]; Gomes, supra, 22 N.E.3d
897 [implementing recommendations of a study group appointed
to investigate identification procedures].) Both courts concluded
that, contrary to common belief, empirical research has
consistently shown that “ ‘under most circumstances, witness
confidence or certainty is not a good indicator of identification
accuracy.’ ” (Gomes, at p. 912; see Henderson, at p. 899
[“eyewitness confidence is generally an unreliable indicator of
accuracy”].) The courts further found, however, that the
correlation is stronger under some circumstances — most
notably when the witness expressed high confidence at the
initial identification and law enforcement utilized proper lineup
procedures. (See Gomes, at p. 912; Henderson, at p. 899.)
In light of those findings, both courts elected to
incorporate aspects of the scientific research into their model
instructions on an eyewitness’s level of certainty.10 Rather than

10
Both courts also adopted substantial modifications to
other factors listed in their eyewitness testimony instructions,
including, for example, whether the witness received
information that may have influenced his or her recollection,
whether the witness and suspect were of different races and
whether the witness was under stress at the time he or she
observed the event. (See Gomes, supra, 22 N.E.3d at pp. 911–
918; Henderson, supra, 27 A.3d at pp. 925–926.) In this case,

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 PEOPLE v. LEMCKE
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merely telling the jury to consider a witness’s level of certainty,
the section of New Jersey’s model instruction on eyewitness
identification addressing witness confidence now provides:
“Confidence and Accuracy: You heard testimony that (insert
name of witness) made a statement at the time he/she identified
the defendant . . . concerning his/her level of certainty that the
person/photograph he/she selected is in fact the person who
committed the crime. . . . [A] witness’s level of confidence,
standing alone, may not be an indication of the reliability of the
identification. Although some research has found that highly
confident witnesses are more likely to make accurate
identifications, eyewitness confidence is generally an unreliable
indicator of accuracy.” (New Jersey Courts, Model Criminal
Jury Charges, Identification: In-Court and Out-of-Court
Identifications (May 18, 2020) p. 8; see id. at p. 3, fns. omitted.)
The section of Massachusetts’s model instruction that addresses
witness certainty, in contrast, directs the jury as follows:
“Expressed certainty. You may consider a witness’s
identification even where the witness is not free from doubt
regarding its accuracy. But you also should consider that an
eyewitness’s expressed certainty in an identification, standing
alone, may not be a reliable indicator of the accuracy of the
identification, especially where the witness did not describe that
level of certainty when the witness first made the
identification.” (See Massachusetts Superior Court Criminal
Practice Jury Instructions (Mass.Cont.Legal Ed. 3d ed. 2018) §

however, we have only been asked to consider CALCRIM No.
315’s language relating to the certainty factor.

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 PEOPLE v. LEMCKE
Opinion of the Court by Groban, J.

6.2; Commonwealth v. German (Mass. 2019) 134 N.E.3d 542,
555; Gomes, supra, 22 N.E.3d at p. 923.)11
The high courts of Kansas and Georgia have taken a
different approach, directing their trial courts to refrain from
instructing on witness certainty altogether. (See State v.
Mitchell (Kan. 2012) 275 P.3d 905, 912 (Mitchell) [instruction
“encourages jurors to give more weight to identifications by a
certain witness than an uncertain one and does nothing to
inform the jury that certainty evidence may be unreliable”];
Brodes v. State (Ga. 2005) 614 S.E.2d 766, 771 [“In light of the
scientifically-documented lack of correlation between a
witness’s certainty in his or her identification . . . and the
accuracy of that identification, . . . we can no longer endorse an
instruction authorizing jurors to consider the witness’s certainty
in his/her identification as a factor to be used in deciding the
reliability of that identification”].)12

11
As Rudd notes in his briefing, the model instructions of
other states include language that “alerts jurors to the
possibility that certainty does not correlate with accuracy.”
(See, e.g., Model Utah Jury Instructions (2d ed. 2014) No. CR
404 [“A witness’s level of confidence in (his) (her) identification
of the perpetrator is one of many factors that you may consider
in evaluating whether the witness correctly identified the
perpetrator. However, a witness who is confident that (he) (she)
correctly identified the perpetrator may be mistaken”]; State v.
Hansley (Me. 2019) 203 A.3d 827, 831 [approving instruction
directing that “there may not be a correlation between the
reliability of an eye witness identification and the amount of
certainty expressed by the witness in making that
identification”].)
12
While not directly addressing the question of jury
instructions, other state courts have rejected witness certainty

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 PEOPLE v. LEMCKE
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Consistent with the findings of those jurisdictions, the
California Commission on the Fair Administration of Justice13
has recommended that the state judiciary reevaluate how juries
are instructed on eyewitness testimony “in light of current
scientific research regarding . . . the relevance of the degree of

as an appropriate factor to consider when assessing the
admissibility of eyewitness testimony. (See Lawson, supra, 291
P.3d at pp. 745, 759, 777–778; Young v. State (Alaska 2016) 374
P.3d 395, 426–427; State v. Guzman (Utah 2006) 133 P.3d 363,
366.) Numerous federal courts have also acknowledged that
empirical research has “undercut[] the hypothesis that there is
a strong correlation between certainty and accuracy.” (Haliym
v. Mitchell (6th Cir. 2007) 492 F.3d 680, 705, fn. 15; see U.S. v.
Greene (4th Cir. 2013) 704 F.3d 298, 309, fn. 4 [“We observe
that . . . (witness certainty) . . . has come under withering attack
as not relevant to the reliability analysis”]; Young v. Conway (2d
Cir. 2012) 698 F.3d 69, 88–89; U.S. v. Bartlett (7th Cir. 2009)
567 F.3d 901, 906; U.S. v. Brownlee (3d Cir. 2006) 454 F.3d 131,
142–144.)
13
The California Legislature established the California
Commission on the Fair Administration of Justice to “study and
review the administration of criminal justice in California to
determine the extent to which that process has failed in the past,
resulting in wrongful executions or the wrongful conviction of
innocent persons”; “[t]o examine ways of providing safeguards
and making improvements in the way the criminal justice
system functions”; and “[t]o make any recommendations and
proposals designed to further ensure that the application and
administration of criminal justice in California is just, fair, and
accurate[.]” (Sen. Res. No. 44 (2003–2004 Reg. Sess.).)

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 PEOPLE v. LEMCKE
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certainty expressed by witnesses in court.” (California
Commission on the Fair Administration of Justice, Final Report
(Jun. 30, 2008) at p. 11.)14 The commission has explained that
the current model instruction — presumably a reference to
CALCRIM No. 315 — “offers no guidance as to the potential
significance, if any” (Final Report, at p. 32) of a witness’s
expression of confidence and noted that several other
jurisdictions have disapproved similar instructions. The
commission has recommended that the Judicial Council’s
Advisory Committee on Criminal Jury instruction look further
into the issue. (Id. at p. 32.) To date, however, our judiciary has
taken no action in response to the commission’s
recommendation.
Although our Legislature has not expressed any views
regarding how jurors should be instructed on eyewitness
testimony,15 it has taken other actions in response to the large

14
Available at
(as of May 17, 2021). All Internet
citations in this opinion are archived by year, docket
number, and case name at
.
15
In other circumstances, our Legislature has mandated the
use of jury instructions to combat traditional assumptions that
have been discredited by empirical research. (See People v.
Jones (1990) 51 Cal.3d 294, 315 [statute mandating jury
instruction that child testimony cannot be discounted based
solely on the ground of youth was adopted in response to
empirical studies that undermined “traditional notions
regarding the unreliability of child witnesses”]; People v. Catley
(2007) 148 Cal.App.4th 500, 507 [statute mandating instruction
that juries cannot discount testimony based solely on a witness’s
disability was adopted to combat “ ‘ “ ‘traditional assumptions’ ”
[that] may previously have biased the factfinding process’ ”].)

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 PEOPLE v. LEMCKE
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body of research exploring how certain variables can affect the
accuracy of an identification. Senate Bill 923, which went into
effect on January 1, 2020, requires law enforcement agencies to
adopt regulations mandating the use of specified procedures
when administering “photo lineups and live lineups with
eyewitnesses.” (§ 859.7, subd. (a); Stats. 2018, ch. 977, § 2.) The
accompanying legislative findings explain that these newly
mandated “best practices” are derived from a “large body of peer-
reviewed research . . . demonstrat[ing] that simple systematic
changes in the administration of eyewitness identification
procedures by law enforcement agencies can greatly improve the
accuracy of identifications.” (Stats. 2018, ch. 977, § 1, subd. (d).)
The mandated procedures include, among other things, blind
administration of the lineup and obtaining a statement
regarding the witness’s level of confidence at the time of the
identification. (See § 859.7.)16 These new requirements suggest
the Legislature has accepted empirical findings that: (1) an

16
Rudd argues that several of the procedures Officer
Velasquez and Detective Silva used during the photographic
lineups, such as Silva’s use of the same image of Rudd that
Campusano had selected during the first photographic lineup
(see ante, at p. 5), conflict with the procedures mandated under
section 859.7. (See, e.g., § 859.7, subd. (a)(2), (3) [requiring blind
administration or written explanation why blind administration
was not utilized], (9) [“Nothing shall be said to the eyewitness
that might influence the eyewitness’ identification of the person
suspected as the perpetrator”], (10)(A) [if the witness identifies
a suspected perpetrator, “[t]he investigator shall immediately
inquire as to the eyewitness’ confidence level in the accuracy of
the identification and record in writing, verbatim, what the
eyewitness says”], (11) [“An electronic recording shall be
made . . . of the identification procedures”].) He acknowledges,
however, that section 859.7 was not yet in effect when the
officers conducted their investigation.

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 PEOPLE v. LEMCKE
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expression of certainty is less likely to be a reliable indicator of
accuracy if the witness failed to express certainty at the initial
identification; and (2) suggestive lineup procedures can have a
substantial effect on the accuracy of an identification.
Although CALCRIM No. 315’s instruction on witness
certainty did not violate Rudd’s due process rights (see ante, at
pp. 13–26), we now join other jurisdictions (and the California
Commission on the Fair Administration of Justice) in
acknowledging that this form of instruction has the potential to
mislead jurors. There is near unanimity in the empirical
research that “ ‘under most circumstances, witness confidence
or certainty is not a good indicator of identification accuracy.’ ”
(Gomes, supra, 22 N.E.3d at p. 912; see Henderson, supra, 27
A.3d at p. 899; Guilbert, 49 A.3d at p. 721; State v. Cabagbag
(Hawaii 2012) 277 P.3d 1027, 1036.) The research has also
consistently shown that “jurors . . . tend to overvalue the effect
of . . . certainty . . . in determining the accuracy of eyewitness
identifications.” (Lawson, supra, 291 P.3d at p. 705; see Gomes,
at p. 913 [“it is necessary to inform a jury about th[e] tenuous
relationship [between certainty and accuracy] because there is
a near consensus that jurors tend to give more weight to a
witness’s certainty in evaluating the accuracy of an
identification than is warranted by the research”].) Indeed,
many studies have “show[n] that eyewitness confidence is the
single most influential factor in juror determinations regarding
the accuracy of an eyewitness identification.” (Lawson, at p. 705
[citing studies]; see Wells & Bradfield, “Good You Identified the
Suspect”: Feedback to Eyewitnesses Distorts Their Reports of the
Witnessing Experience (1998) 83 J. Applied Psychol. 360, 361.)
Although the language in CALCRIM No. 315 does not
state that a certain identification is more likely to be accurate,

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 PEOPLE v. LEMCKE
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the instruction does nothing to disabuse jurors of the common
misconception that such a correlation exists. Indeed, merely
directing the jury to consider a witness’s level of certainty,
without any further caveats, effectively operates to reinforce
that misconception. (See Mitchell, supra, 275 P.3d at pp. 912–
913 [language “encourages jurors to give more weight to
identifications by a certain witness” and “prompts the jury to
conclude that an eyewitness identification is more reliable when
the witness expresses greater certainty”].) That raises
particular concerns in a case like this one, where the conviction
was based almost entirely on the testimony of a single witness
who expressed certainty in her identification and had no prior
relationship with the defendant. (See McDonald, supra, 37
Cal.3d at p. 363 [“ ‘Centuries of experience in the administration
of criminal justice have shown that convictions based solely on
testimony that identifies a defendant previously unknown to the
witness is highly suspect’ ”]; Sánchez, supra, 63 Cal.4th at p. 462
[“[a]ny reexamination of our previous holdings [regarding the
witness certainty instruction] . . . should await a case involving
only certain identifications”].)
The risk of juror confusion is heightened by the structure
of CALCRIM No. 315, which lists witness certainty among
numerous other factors the jury should consider when assessing
the eyewitness testimony. As written, the instruction implies
that each of these factors have a direct, linear bearing on
accuracy. For instance, “How well could the witness see the
perpetrator” implicitly prompts the jury to believe that if the
witness could see the perpetrator well, the identification should
be given more weight, and vice versa; “How closely was the
witness paying attention,” “Was the witness under stress when
he or she made the observation,” “Did the witness ever fail to

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 PEOPLE v. LEMCKE
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identify the defendants,” all do the same. Hearing the certainty
instruction in this context increases the risk that the jury will
infer certainty operates the same way — as having some direct
relationship with the accuracy of the identification.
Having acknowledged the current version of the
instruction might confuse jurors about the relationship between
confidence and accuracy, that leaves the difficult question of
determining what information trial courts should provide to the
jury about witness certainty. While there is general agreement
that witness certainty is not a good indicator of accuracy under
most circumstances, that “does not mean that eyewitness
certainty is never correlated with accuracy.” (Gomes, supra, 22
N.E.3d at p. 912.) Rather, as Justice Liu explained in his
concurring opinion in Sánchez, 63 Cal.4th 411, the research
suggests that “ ‘the strength of the confidence-accuracy
relationship varies, as it depends on complex interactions
among [numerous] factors.’ ” (Id. at p. 497 (conc. opn. of Liu, J.),
quoting Nat. Research Council, Identifying the Culprit:
Assessing Eyewitness Identification (2014) p. 108; see also
Gomes, supra, 22 N.E.3d at p. 912 [“the existence and strength
of the correlation depends on the circumstances”].)
The large body of research conducted in this area has
identified numerous factors that can affect the correlation
between witness certainty and accuracy including (among other
things): (1) whether the confidence statement occurred before
or after the identification; (2) the temporal proximity between
the event and the identification; (3) whether the witness
provided an expression of certainty at the initial identification;
(4) whether the witness was highly confident; (5) the use of
suggestive identification procedures; and (6) information
witnesses receive after the identification that might increase

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 PEOPLE v. LEMCKE
Opinion of the Court by Groban, J.

their level of confidence. (See Gomes, supra, 22 N.E.3d at p. 912;
Henderson, supra, 27 A.3d at pp. 896–900, 923, fn. 7; 2019
Report of The United States Court of Appeals for the Third
Circuit Task Force on Eyewitness Identifications (2019) 92
Temp. L.Rev. 1, 53–54, 56, 99–100 (Third Circuit Task Force
Report); Lawson, supra, 291 P.3d at p. 695; Guilbert, supra, 49
A.3d at pp. 722–723; ante, at pp. 8–9.) The relevance of the last
two factors, in turn, requires further understanding of the type
of law enforcement conduct that may be suggestive or
confirmatory. (See Third Circuit Task Force, at pp. 53–55
[discussing types of potentially confirmatory or suggestive
conduct].)
Even among those states that have chosen to modify their
instructions on witness certainty, there is no consensus as to
what specific factors merit inclusion in the charge. New Jersey’s
instruction, for example, notes that while “eyewitness
confidence is generally an unreliable indicator of accuracy,”
some research has shown that “highly confident witnesses are
more likely to make accurate identifications . . . .” (New Jersey
Courts, Model Criminal Jury Charges, Identification: In-Court
and Out-of-Court Identifications, supra, at p. 8.)
Massachusetts, on the other hand, emphasizes the importance
of whether the witness expressed certainty at the initial
identification. (Gomes, supra, 22 N.E.3d at p. 923.)
Connecticut, in contrast, has approved the use of an enhanced
jury charge on witness certainty, but has given its trial courts
discretion to determine the content of such an instruction on a
case-by-case basis. (Guilbert, supra, 49 A.3d at p. 727, fn. 27.)
Complicating matters further, there appears to be an
emerging dispute in the research over the efficacy of highly
detailed instructions on eyewitness identifications. (See State v.

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 PEOPLE v. LEMCKE
Opinion of the Court by Groban, J.

Booth-Harris (Iowa 2020) 942 N.W.2d 562, 578 [“a growing body
of academic literature . . . questions the efficacy of certain
provisions in such jury instructions on eyewitness
identifications. In fact, recent studies have shown that the more
comprehensive jury instructions like New Jersey’s Henderson
instruction can actually overcorrect the problem”]; State v.
Clopten (Utah 2009) 223 P.3d 1103, 1110–1111 [citing studies
showing that enhanced instructions “do[] little to help a jury
spot a mistaken identification” and are “less effective than
expert testimony”]; Third Circuit Task Force Report, supra, 92
Temp. L.Rev. at p. 97 [task force minority view participants
arguing that studies have found enhanced instructions “do not
assist jurors in evaluating the evidence, but rather cause jurors
to question all eyewitness identification testimony, thereby
increasing the rate of acquittal regardless of the
circumstances”]; Guilbert, supra, 49 A.3d at p. 726 [citing
research finding that jury instructions are “less effective than
expert testimony in apprising the jury of the potential
unreliability of eyewitness identification testimony”].)
Given the complexities described above, we agree with the
Attorney General that the Judicial Council and its Advisory
Committee on Criminal Jury Instructions, which is comprised
of jurists, scholars and practitioners specializing in criminal law
(see Cal. Rules Court, rule 10.59), are best suited to reevaluate
whether or how CALCRIM No. 315’s instruction can be modified
to remedy potential confusion regarding the correlation between
certain and accuracy without “being unduly long or

37
 PEOPLE v. LEMCKE
Opinion of the Court by Groban, J.

argumentative.”17 (Wright, supra, 45 Cal.3d at p. 1143; see
Mitchell v. Gonzales (1991) 54 Cal. 3d 1041, 1053, fn. 9 [directing
the Committee on Standard Jury Instructions to consider
whether model instruction defining proximate causation “could
be improved” in light of empirical research showing that the
current wording confused a substantial portion of jurors].) The
goal of reevaluating the instruction should be to improve the
jury’s ability to properly evaluate an eyewitness’s expression of
certainty in an identification while avoiding any interference
with the jury’s fact-finding function. (See Cal. Rules Court, rule
2.1050(a) [goal of “instructions is to improve the quality of jury
decision making”]; Watson v. Damon (1880) 54 Cal. 278, 279
[instructions of court “cannot interfere with the exclusive
prerogative of the jury in passing upon the facts”].) In assessing
what modifications might be appropriate, the Judicial Council
should remain mindful that while there is now general
agreement in the research that witness certainty is not a good
indicator of accuracy under most circumstances, research has
also shown the correlation tends to be stronger when certain
factors are present. (See ante, pp. 27–28, 35–36.) The Judicial
Council should also consider research showing that highly
detailed jury instructions may further confuse the jury or
overcorrect the problem. (See ante, at pp. 36–37.)18

17
Referring this issue to the Judicial Council will also
provide the public an opportunity to weigh in on any
amendments the Council may propose. (See Cal. Rules of Court,
rule 2.1050(d) [“Amendments to these instructions will be
circulated for public comment before publication”].)
18
Given the complexity of the issue, the Judicial Council
might also consider inviting its Criminal Law Advisory

38
 PEOPLE v. LEMCKE
Opinion of the Court by Groban, J.

As we have explained, Rudd has failed to establish that
the trial court’s decision to include the certainty factor in
CALCRIM No. 315 violated his due process rights or otherwise
constituted error under the circumstances presented here.
Nonetheless, for the reasons described, we believe there is a risk
that the current version of the instruction will prompt jurors to
infer that an eyewitness’s certainty in an identification is
generally a reliable indicator of accuracy. Accordingly, in the
exercise of our supervisory powers, we direct our trial courts to
omit the certainty factor from CALCRIM No. 315 until the
Judicial Council has the opportunity to consider how the
language might be better worded to minimize juror confusion on
this point. (See Engelman, supra, 28 Cal.4th at p. 444 [finding
no error but exercising supervisory powers to disapprove
potentially misleading instruction regarding juror misconduct];
People v. Burgener (2003) 29 Cal.4th 833, 861 [finding no error
but exercising supervisory powers to disapprove “race-
conscious” jury assignment procedure]; People v. Brigham
(1979) 25 Cal.3d 283, 292 [exercising supervisory powers to
disapprove “inartfully drawn” jury instruction that presented
risk of misleading jurors about the meaning of the reasonable
doubt standard].) Trial courts, however, retain discretion to
include the factor when the defendant requests that it do so.19

Committee and the Appellate Advisory Committee to aid in
evaluating how jurors should be instructed on the issue of
witness certainty. (Cf. People v. Sivongxxay (2017) 3 Cal.5th
151, 169–170, fn. 4.)
19
We have previously distinguished the effect of the
certainty instruction in cases where a witness has expressed
doubt, rather than confidence, about the accuracy of the

39
 PEOPLE v. LEMCKE
Opinion of the Court by Groban, J.

III. DISPOSITION
The judgment is affirmed.

GROBAN, J.

We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
JENKINS, J.

identification. (See Sánchez, supra, 63 Cal.4th at p. 462
[“ ‘[certainty] instruction has merit in so far as it deals with the
testimony of a witness who expressed doubt about the accuracy
of her identification . . . .’ ”].) The misleading effect we are
concerned with here — that the jury is prompted to believe there
is a strong correlation between certainty and accuracy despite
empirical research showing just the opposite — is not present
when a witness has expressed doubt regarding the
identification.

40
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.

Name of Opinion People v. Lemcke
__________________________________________________________________

Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published)
Review Granted (unpublished) XX NP opn. filed 6/21/18 – 4th
Dist., Div. 3
Rehearing Granted
__________________________________________________________________

Opinion No. S250108
Date Filed: May 27, 2021
__________________________________________________________________

Court: Superior
County: Orange
Judge: David A. Hoffer

__________________________________________________________________

Counsel:

Sylvia W. Beckham, under appointment by the Supreme Court, for
Defendant and Appellant Desirae Lee Lemcke.

Jeanine G. Strong, under appointment by the Supreme Court, for
Defendant and Appellant Charles Henry Rudd.

Kramer Levin Naftalis & Frankel, Hannah Lee, David S. Frankel,
John M. McNulty and Aaron L. Webman for The California Innocence
Project, The Project for the Innocent at Loyola Law School and The
Northern California Innocence Project as Amici Curiae on behalf of
Defendant and Appellant Charles Henry Rudd.

Mary K. McComb, State Public Defender, Barry P. Helft, Chief Deputy
State Public Defender, and Kathleen M. Scheidel, Assistant State
Public Defender, as Amicus Curiae on behalf of Defendant and
Appellant Charles Henry Rudd.
Xavier Becerra, Attorney General, Michael J. Mongan, State Solicitor
General, Janill L. Richards, Principal Deputy State Solicitor General,
Julie L. Garland, Assistant Attorney General, Joshua A. Klein, Deputy
State Solicitor General, Steve Oetting and Minh U. Le, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):

Jeanine Strong
Strong Appellate Law
316 Mid Valley Center #102
Carmel, CA 93923
(831) 277-3904

Aaron Webman
Kramer Levin Naftalis & Frankel LLP
1177 Avenue of the Americas
New York, NY 10036
(212) 715-9100

Joshua A. Klein,
Deputy State Solicitor General
1515 Clay St., Suite 2000
Oakland, CA 94612
(510) 879-0756