In People v. Lemcke, the Supreme Court today finds a form jury instruction about the reliability of eyewitness testimony “has the potential to mislead jurors,” but concludes giving the instruction did not violate the defendant’s due process rights.

The court’s unanimous opinion by Justice Joshua Groban says that CALCRIM No. 315 is wrong in telling a jury they should consider “[h]ow certain” a witness was when making an identification.  The court concludes that, “[c]ontrary to widespread lay belief, there is now near unanimity in the empirical research that ‘eyewitness confidence is generally an unreliable indicator of accuracy.’ ”

Although not giving the defendant relief, the court “refer[s] 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.”  Also, while the Council is working on it, the court directs that “trial courts should omit the certainty factor from CALCRIM No. 315 unless the defendant requests otherwise.”

The court doesn’t specifically overrule any of its prior cases, but it does acknowledge that it had “repeatedly endorsed the use of instructions that direct the jury to consider an eyewitness’s level of certainty when evaluating identification evidence.”  Justice Goodwin Liu has more than once written separate opinions calling for a reevaluation of those cases.  (See here and here.)

The court affirms the Fourth District, Division Three, Court of Appeal.  That court considered itself bound by Supreme Court precedent, but correctly predicted this case might be the right one for the high court to reexamine its prior holdings.