FACTORS TO CONSIDER IN PROVING
IDENTITY BY EYE WITNESS TESTIMONY
Eye witness testimony has been received in this trial for the purpose of identifying the defen dant as the perpetrator of the crime[s] charged. In determining the weight to be given eye witness identification testimony, you should consider the believability of the eye witness as well as other factors which bear upon the accuracy of the witness' identification of the defendant, including, but not limited to, any of the following:
1-The opportunity of the witness to observe the alleged criminal act and the perpetrator of the act;
2-The stress, if any, to which the witness was subjected at the time of the observation;
3-The witness' ability, following the observation, to provide a description of the perpetrator of the act;
4-The extent to which the defendant either fits or does not fit the description of the perpetrator previously given by the witness;
5-The cross-racial or ethnic nature of the identification;
6-The witness' capacity to make an identification;
7-Evidence relating to the witness' ability to identify other alleged perpetrators of the criminal act;
8-Whether the witness was able to identify the alleged perpetrator in a photographic or physical lineup;
9-The period of time between the alleged criminal act and the witness' identification;
10-Whether the witness had prior contacts with the alleged perpetrator;
11-The extent to which the witness is either certain or uncertain of the identification;
12-Whether the witness' identification is in fact the product of [his] [her] own recollection;
13- ______, ______, ______, _______, ______, ______.
Any other evidence relating to the witness' ability to make an identification.
USE NOTE
CALJIC 2.92 is based upon People v. West (1983) 139 C.A.3d 606, 610,189 Cal.Rptr. 36, and People v. Palmer (1984)154 C.A.3d 79, 85-89, 203 Cal.Rptr. 474, 477-80. As indicated in such cases, the trial court should fill in the blank space reference to any unique element of identification which may be presented by the record in the specific case.
This instruction should precede or follow CALJIC 2.91 BURDEN OF PROVING IDENTITY BASED SOLELY ON EYE WITNESSES.
COMMENT
CALJIC 2.92 is a correct statement of factors to be considered. People v. Martinez (1987)191 C.A.3d 1372,1384, 237 Cal.Rptr. 219, 226.