OUJI-CR 9-19


The State must prove the identity of the defendant as the person who committed the crime charged beyond a reasonable doubt. If after examining all of the evidence, you have a reasonable doubt as to whether the defendant was the individual who committed the crime charged, you must find the defendant not guilty.

Eyewitness identifications are to be scrutinized with extreme care. Testimony as to identity is a statement of a belief by a witness. The possibility of human error or mistake and the probable likeness or similarity of objects and persons are circumstances that you must consider in weighing identification testimony. You should carefully consider the factors that bear upon the weight that you give to the identification testimony, such as: (1) whether the witness had an adequate opportunity to observe the subject clearly; (2) whether the witness is positive in the identification; (3) whether the witness's identification is weakened by a prior failure to identify the subject; (4) whether the witness's testimony remained positive and unqualified after cross-examination; and (5) whether the witness' prior description/identification of the person/thing was accurate.

In deciding whether the witness had an adequate opportunity to observe the subject of the identification, you should consider the capability of the witness, the length of time of observation, the distance between the witness and the subject, lighting conditions, whether the witness was under stress, whether the witness had seen or known the subject before, and any other circumstance supported by the evidence.

In deciding how much weight to give to identification testimony, you should consider whether the identification was based on the witness’s own recollection and the circumstances of the identification. These circumstances may include, but are not limited to, whether the identification was made by selecting the subject from a group of similar persons or the subject alone, the length of time between when the witness observed the subject and the identification, and whether anything during that time may have affected the identification. You should also consider whether the witness described the subject before the identification, and if so, how specific the description was.

Notes on Use

This instruction should be given if an eyewitness identification is a critical element of the prosecution's case and there is a serious question concerning the reliability of the identification. McDoulett v. State, 1984 OK CR 81, ¶ 9, 685 P.2d 978, 980.

Committee Comments

In Mathieus v. State, 1989 OK CR 47, ¶ 9, 778 P.2d 491, 493, the Oklahoma Court of Criminal Appeals held that a defendant was entitled to a cautionary instruction substantially similar to this instruction because the eyewitness did not have an opportunity to view the perpetrator and was not positive in the identification. Similarly, in McDoulett v. State, 1984 OK CR 81, ¶ 10, 685 P.2d 978, 980, the Court of Criminal Appeals ruled that the trial court committed reversible error by refusing to give a requested cautionary instruction, because the witness was not in a position to observe the assailant clearly and her prior description was inaccurate. In Webb v. State, 1987 OK CR 253, ¶ 11, 746 P.2d 203, 206, however, the Court of Criminal Appeals found that a cautionary instruction was not warranted because after applying the five factors listed in the instruction to the facts of that case, it concluded that the likelihood of misidentification was not substantial. See also Pisano v. State, 1981 OK CR 137, ¶¶ 11-12, 636 P.2d 358, 361, (cautionary instruction was unnecessary because 4 conditions for reliability of identification prevailed); Hall v. State, 1977 OK CR 193, ¶¶ 8-9, 565 P.2d 57, 60 (no necessity for instruction on unreliability of eyewitness testimony because identification appeared reliable); Moreau v. State, 1975 OK CR 14, ¶¶ 14-15, 530 P.2d 1061, 1066 (4 factors regarding reliability of identification were satisfied).

The Court of Criminal Appeals stated in McDoulett, 1984 OK CR 81, ¶ 12, 685 P.2d 978, 981, that the list of factors that the jury may wish to consider in evaluating the credibility of eyewitness identifications is not exclusive. For additional factors that may be appropriate, see 1 Edward J. Devitt et al., Federal Jury Practice & Instructions § 14.10 (4th ed. 1992).

(2016 SUPP.)