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Ryan argued that the scientific research says that an eye-witness' certainty is not correlated to the accuracy of their identification. He argued that the eyewitness identification instruction, PIK Crim.3d 52.20, is based on 30-year-old case law and that the witness' "degree of certainty" should be removed as a factor from the instruction. The KSC is clearly interested in this issue, as they granted Ryan's petition for review, and they recently granted a petition for review in a case of mine on the same issue.

In all cases that involve eye-witness testimony, an objection to PIK Crim.3d 52.20 should be made (you might also consider asking for expert testimony on the pitfalls of eye-witness testimony or moving to suppress in-court identifications if the out-of-court procedure was suggestive). The objection to PIK Crim.3d 52.20 is especially important if the witness testifies at trial that they are very certain of their identification or if the witness has become more certain of their identification as the case has progressed. Another science-based instructional issue is to request an instruction that cross-racial identifications are less reliable, blogged about here.

As other cases have shown, objecting to pattern instructions can make the difference between winning and losing a case on appeal. Examples of this with the recent Salts case were blogged about here, here, here, and here.

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