Payne v. Commonwealth of Virginia

Brief Filed: June 22, 2016
Court: Supreme Court of Virginia
Year of Decision: 2016

Read full-text amicus brief (PDF, 208KB)

The science supporting a jury instruction on reliability of eyewitness testimony.

Eyewitness Identification Research

The defendant, Deante Payne, was convicted of robbery and use of a firearm in a robbery, based solely on the victim’s eyewitness identification. He was sentenced to nine years in prison. At trial the judge refused to give two jury instructions that Payne requested relating to eyewitness identification. One was relatively generic, advising jurors of various factors they could consider in assessing eyewitness-identification testimony, such as stress and lighting. The second instruction Payne sought specifically concerned eyewitness reliability when a weapon is involved. The judge also refused Payne’s request for funds to pay an expert on eyewitness testimony, and refused to admit all of an e-mail written by the investigating officer.

The Virginia Court of Appeals affirmed, reasoning that the requested instructions were not required because other instructions that the trial judge gave adequately covered the topic of witness credibility. The court also made passing comments that the generic instruction could have confused the jury and commented on the evidence, and that the weapon-focus instruction was in the nature of argument and not an accurate statement of the law.

Payne sought review by the state high court, challenging three of the trial judge’s rulings: the refusal to give the generic eyewitness-identification instruction, the refusal to admit the officer’s e-mail, and the refusal to offer funds for an expert. (Payne did not specifically challenge the ruling regarding the weapon-specific jury instruction.) The court initially denied review but then reversed course, granting Payne’s rehearing petition. The court limited review, however, to the eyewitness-instruction issue and the e-mail issue, declining review of the expert-funds issue.

APA has filed four briefs in the eyewitness testimony area (Commonwealth v. Walker, Perry v. New Hampshire, State of Connecticut v. Troy Artis, and Commonwealth v. Gomes and Commonwealth v. Johnson) and we built on those briefs in filing in similar.

On Dec. 29, 2016, the Virginia Supreme Court issued a decision unanimously affirming the defendant’s convictions. The court’s decision on the issue APA addressed (failure to give certain instructions regarding eyewitness identifications) was narrow; the court ruled partly on waiver (“Payne failed to preserve the issue of cross-race identification”), and otherwise on the supposedly flawed nature of the particular proffered instructions. It was thus a very fact-specific ruling, and the court denied that it was flatly barring the kind of instructions sought here, or otherwise departing from its precedent.