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IN THE SUPREME COURT OF THE STATE OF HAWAI‘I

---oOo---

________________________________________________________________

STATE OF HAWAI‘I, 

Respondent/Plaintiff-Appellee,

vs.

BRONSON KANEAIAKALA, 

Petitioner/Defendant-Appellant.

_____________________________________________________________

SCWC-16-0000647

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-16-0000647; CR. NO. 15-1-0108)

OCTOBER 1, 2019

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY McKENNA, J.

I. Introduction 

This appeal arises from an impermissibly suggestive field 

show-up identification. Midday on Saturday, January 24, 2015, 

Mari Laraway (“Laraway”) was walking with her minor son from 

their apartment building on Date Street to her car. As she 

walked alongside the apartment building, she saw a man crouching 

Electronically Filed

Supreme Court

SCWC-16-0000647

01-OCT-2019

08:04 AM
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beneath the window of a ground-floor apartment. Once at her

car, she looked up and saw the man entering the apartment 

through a window. Laraway called 911 to report the man’s 

activity. 

Honolulu Police Department (“HPD”) officers later found 

Petitioner/Defendant-Apellant Bronson Kaneaiakala 

(“Kaneaiakala”) naked in the laundry room of the apartment 

building with items missing from the apartment, and they 

arrested him. Two-and-a-half hours after she had seen a man 

enter the ground-floor apartment through a window, Laraway met 

the officers on the street outside the apartment building. 

Kaneaiakala was shirtless, handcuffed, and standing beside a 

police car, surrounded by police. Laraway looked at Kaneaiakala 

and told the officers she was “almost positive” Kaneaiakala was 

the man she saw at the window earlier. After she had identified 

Kaneaiakala as the suspect, Laraway was asked to complete a 

suspect description form and she gave the officers a written 

statement. 

The State of Hawaiʻi (“State”) charged Kaneaiakala with one 

count of Burglary in the First Degree in violation of Hawai‘i 

Revised Statutes (“HRS”) § 708-810(1)(c) (2014).1 Before trial, 

 

1 HRS § 708-810(1)(c) provides as follows: 

(1) A person commits the offense of burglary in the first 

degree if the person intentionally enters or remains 

(continued. . .)
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Kaneaiakala filed a motion to suppress Laraway’s show-up 

identification.

The Circuit Court of the First Circuit (“circuit court”)2 

conducted a hearing on the motion to suppress. The State 

stipulated that the procedure employed by HPD was impermissibly 

suggestive. The circuit court found Laraway’s identification 

nonetheless sufficiently reliable and denied the motion. At 

jury trial, the State presented testimony from Laraway, one of 

the residents of the burglarized apartment, and two police 

officers. The jury found Kaneaiakala guilty as charged. 

On appeal, the Intermediate Court of Appeals (“ICA”) 

affirmed the conviction and, in a summary disposition order, 

held that the circuit court did not err in concluding that 

Laraway’s identification was sufficiently reliable for admission 

in evidence and consideration by the jury. State v. 

Kaneaiakala, No. CAAP-16-0000647 at 2-5 (App. Nov. 7, 2017) 

(SDO). On certiorari, Kaneaiakala argues Laraway’s 

 

(continued. . .)

unlawfully in a building, with intent to commit therein a 

crime against a person or against property rights, and:

. . . .

 (c) The person recklessly disregards a risk that the building is 

the dwelling of another, and the building is such a dwelling.

2 The Honorable Shirley M. Kawamura presided over the hearing on 

Kaneaiakala’s motion to suppress and jury trial.
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identification should have been suppressed because it was 

unreliable and tainted by HPD’s show-up procedure. 

As Justice Brennan stated in 1967, “[t]he vagaries of 

eyewitness identification are well-known; the annals of criminal 

law are rife with instances of mistaken identification.” United 

States v. Wade, 388 U.S. 218, 228 (1967). In the half-century 

since Wade, science on human memory has advanced even further, 

and it has become widely accepted that unreliable eyewitness 

identifications are the leading cause of wrongful convictions. 

Recognizing this, in State v. Cabagbag, 127 Hawai‘i 302, 

313-14, 277 P.3d 1027, 1038-39 (2012), we held that when the 

trustworthiness or reliability of eyewitness identification is 

central to a case, trial courts must give a specific jury 

instruction when requested by the defense to focus the jury’s 

attention on the reliability of the identification. 127 Hawaiʻi

at 313-14, 277 P.3d at 1038-39. We also proposed a model jury 

instruction to address reliability concerns with eyewitness 

identifications, including thirteen reliability factors that a 

judge should consider including in a jury instruction. 127 

Hawai‘i at 314, 277 P.3d at 1039. 

By ruling that trial courts no longer had discretion to 

reject defense requests for a jury instruction regarding the 

trustworthiness of eyewitness identifications, we abrogated the 

holding in State v. Padilla, 57 Haw. 150, 552 P.2d 357 (1976), 
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that a trial court had discretion to decide whether to give such 

an instruction. 

While overruling Padilla on that point in Cabagbag, we did 

not address another holding of Padilla. In Padilla, we also 

adopted a test set out by the United States Supreme Court in 

Neil v. Biggers, 409 U.S. 188 (1972), for trial courts to apply 

to determine whether an eyewitness identification procured 

through an impermissibly suggestive procedure should be 

admissible in evidence. We held that when an eyewitness 

identification is procured through an impermissibly suggestive 

procedure, the trial court must evaluate five factors under the 

totality of the circumstances to determine whether the 

identification is nonetheless sufficiently reliable to be 

admitted in evidence. Padilla, 57 Haw. at 154, 552 P.2d at 360. 

The five factors are: (1) the opportunity of the witness to 

view the defendant at the time of the crime, (2) the witness's

degree of attention, (3) the accuracy of the witness's prior 

description of the defendant, (4) the level of certainty 

demonstrated by the witness at the identification, and (5) the 

length of time between the crime and the identification. Id. 

The thirteen factors we held in Cabagbag that a judge 

should consider including in a jury instruction regarding 

reliability of eyewitness identifications include the five 
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factors delineated in Padilla for a judge to consider in 

addressing admissibility.

After Cabagbag, in State v. Cabinatan, 132 Hawai‘i 63, 76, 

319 P.3d 1071, 1084 (2014), we noted that although field show-up 

identifications can be admissible, they are inherently

suggestive. We cited to various United States Supreme Court 

opinions criticizing identifications of only one person

presented as a possible perpetrator of a crime, including 

Stovall v. Denno, 388 U.S. 293, 302 (1967) abrogated on other 

grounds by Griffith v. Kentucky, 479 U.S. 314 (1987), which had 

stated that “[t]he practice of showing suspects singly to 

persons for the purpose of identification, and not as part of a 

lineup, has been widely condemned.” Cabinatan, 132 Hawaiʻi at 

83, 319 P.3d 1091. We held that under the circumstances of that 

case, where the eyewitness’s testimony suggested her 

identification of the defendant in a show-up might have been 

influenced by suggestive procedures, even under the pre-Cabagbag

discretionary standard, the trial court abused its discretion in 

denying a defense request for a jury instruction regarding the 

inherent suggestiveness of show-up identifications. Cabinatan, 

132 Hawaiʻi at 77, 319 P.3d at 1085. But because the issue 

before us was the need for a jury instruction and not 

admissibility, we did not address whether trial courts must also 
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consider additional factors when addressing the admissibility of 

show-up identifications. 

A defendant is denied due process of law, however, when the 

procedure used to obtain an eyewitness identification admitted 

at trial is “unnecessarily suggestive and conducive to 

irreparable mistaken identification.” State v. Masaniai, 63 

Haw. 354, 362, 628 P.2d 1018, 1024 (1981) (citations omitted). 

In this case, we therefore address whether, in determining 

whether an eyewitness identification procured through an 

impermissibly suggestive procedure is nonetheless sufficiently 

reliable under the totality of the circumstances to be admitted 

in evidence, a trial judge must also consider factors we have 

held the judge must consider including in a jury instruction 

regarding the reliability of the eyewitness identification. 

In doing so, we set forth new rules that expressly overrule 

precedent upon which parties have regulated their conduct; 

therefore, our holdings will only apply prospectively to events 

occurring after publication of this decision, i.e., to 

admissibility determinations or jury instructions given after 

the date of this opinion. See State v. Auld, 136 Hawaiʻi 244, 

256, 361 P.3d 471, 483 (2015) (citations omitted) (“The 

‘paradigm case’ warranting a prospective-only application of a 

new rule arises ‘when a court expressly overrules a precedent 

upon which the contest would otherwise be decided differently 
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and by which the parties may previously have regulated their 

conduct.’”).

Factors to be applied in addressing eyewitness and show-up 

identifications should not differ based on whether it is a judge 

or jury considering them for purposes of admissibility or, if 

admitted into evidence, for purposes of determining reliability. 

As further discussed below, and to summarize, we therefore 

prospectively hold that trial courts must, at minimum, consider 

any relevant factors set out in the Hawaiʻi Pattern Jury 

Instructions--Criminal (“Hawai̒i Standard Instructions” or 

“HAWJIC”) governing eyewitness and show-up identification 

testimony,

3 as may be amended, as well as any other relevant 

 

3 The HAWJIC 3.19 (2014) “Eyewitness Testimony” instruction currently 

reads as follows: 

The burden of proof is on the prosecution with reference to 

every element of a crime charged, and this burden includes 

the burden of proving beyond a reasonable doubt the 

identity of the defendant as the person responsible for the 

crime charged. 

You must decide whether an eyewitness gave accurate 

testimony regarding identification. 

In evaluating identification testimony, you may consider 

the following factors: 

The opportunity of the witness to observe the person 

involved in the alleged criminal act; 

The stress, if any, to which the witness was subject at the 

time of the observation; 

The witness’s ability, following the observation, to 

provide a description of the person; 

(continued. . .)
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(continued. . .)

The extent to which the defendant fits or does not fit the 

description of the person previously given by the witness; 

The cross-racial or ethnic nature of the identification; 

The witness’s capacity to make an identification; 

Evidence relating to the witness’s ability to identify 

other participants in the alleged criminal act; 

Whether the witness was able to identify the person in a 

photographic or physical lineup; 

The period of time between the alleged criminal act and the 

witness’s identification; 

Whether the witness had prior contacts with the person; 

The extent to which the witness is either certain or 

uncertain of the identification and whether the witness’s 

assertions concerning certainty or uncertainty are wellfounded; 

Whether the witness’s identification is in fact the product 

of his/her own recollection; and 

Any other evidence relating to the witness’s ability to 

make an identification.

The commentary provides that “[t]he court may wish to delete from the 

instruction those listed factors that do not apply in a given case.” HAWJIC 

3.19 cmt. 

The HAWJIC 3.19A (2014) “Show-Up Identification” instruction currently 

reads as follows:

In this case, in addition to other eyewitness 

identification testimony, you have received evidence that 

the defendant was identified by a witness at a so-called 

“show-up” conducted by the police. While show-ups are 

permissible, they are inherently suggestive police 

procedures. In determining the reliability and accuracy of 

an identification made at a police show-up, you must 

consider the totality of the circumstances involved in the 

show-up, which may include the following: 

[Whether the identification was the result of a suggestive 

procedure, including actions taken or words spoken by 

police or anyone else to the witness before, during, or 

after the identification process;] 

[Whether the police either indicated to the witness that a 

suspect was present in the procedure or failed to warn the 

(continued. . .)
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factors that may be set out in binding precedent in addressing 

whether, under a totality of circumstances, an impermissibly 

suggestive eyewitness or show-up identification is nonetheless 

sufficiently reliable to be admissible in evidence. 

We also prospectively hold that in addressing the

admissibility of a suggestive eyewitness or show-up 

identification, trial courts must also consider the effect of 

any suggestiveness on the reliability of the identification in 

determining whether it should be admitted into evidence. 

Finally, we prospectively hold that when an eyewitness or 

show-up identification is central to a case or has been procured 

through a suggestive eyewitness or show-up identification, the 

jury must also be instructed to consider the impact of any 

 

(continued. . .)

witness that the perpetrator may or may not be in the 

procedure;] 

[Whether the defendant was required to wear distinctive 

clothing that the perpetrator allegedly wore, or was 

handcuffed or otherwise appeared to be in police custody;] 

[Whether the witness was exposed to opinions, descriptions, 

or identifications made by other witnesses, or to 

photographs, news media, or to any other information that 

may have influenced the independence of the 

identification;] 

[Whether other participants in the show-up were similar in 

appearance to the defendant;] 

[Whether the witness's identification was made 

spontaneously and remained consistent thereafter;] 

[and any other circumstance relating to the witness’s 

ability to make an identification.]
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suggestive procedure on the reliability of the eyewitness or 

show-up identification.4

In Kaneaiakala’s case, however, the trial judge did not err 

in applying the Padilla factors that governed the admissibility 

determination at the time it was made. As our holdings are 

prospective, we therefore affirm the ICA’s judgment on appeal 

affirming Kaneaiakala’s conviction and the denial of his motion 

to suppress. 

II. Additional Factual and Procedural Background

A. Circuit Court Proceedings

On January 26, 2015, the State charged Kaneaiakala via 

felony information with one count of Burglary in the First 

Degree, in violation of HRS § 708-810(1)(c). 

1. Pretrial Motion to Suppress Eyewitness Identification

On June 9, 2015, Kaneaiakala filed a motion to suppress 

Laraway’s identification and argued the identification was 

obtained through an impermissibly suggestive and unreliable 

show-up. Kaneaiakala maintained that as a result of the process 

used by the officers to conduct the field show-up, there was an 

“inordinately high” likelihood that Laraway incorrectly

 

4 This language, which already appears in HAWJIC 3.19A governing show-up 

identifications, could also be included in HAWJIC 3.19 governing eyewitness 

identifications:

[Whether the identification was the result of a suggestive 

procedure, including actions taken or words spoken by 

police or anyone else to the witness before, during, or 

after the identification process;]
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identified him as the man she saw at the window. Kaneaiakala 

also asserted Laraway’s identification was unreliable because 

Laraway (1) viewed the man at the window briefly in passing, and 

(2) she later “admitted she had bad eye sight and was not 

wearing her glasses” when she witnessed the man at the window. 

The State responded that even if the show-up was 

impermissibly suggestive, Laraway’s identification was still 

admissible as reliable because: (1) Laraway saw the man at the 

window in broad daylight; (2) her view was not obstructed; (3) 

she “was able to provide at least a partial description of [the 

suspect] to 911” that was consistent with how Kaneaiakala looked 

when the police arrested him; (4) the show-up took place just a 

few hours after Laraway saw the man at the window; and (5) 

Laraway was “almost positive” that Kaneaiakala was the man she 

saw at the window based on his body shape, scruffy face, and 

short, curly hair.

The circuit court held a two-day hearing on the motion to 

suppress on September 1, 2015 and September 8, 2015. Two 

witnesses testified at the hearing: Laraway and Officer Kanoa 

Hose (“Officer Hose”). The following relevant testimony was 

presented at the hearing. 

a. Laraway’s Testimony

Through a Japanese interpreter, Laraway testified as 

follows. 
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Laraway lived in the 2904 Date Street Apartments on January 

24, 2015. At around 12:30 p.m. that day, she left her apartment 

to walk to her car, which was parked on Date Street across from 

the apartment building. As she and her son walked on the 

sidewalk alongside the apartment building before crossing Date 

Street, Laraway saw a man crouched beneath the window of a 

corner, ground-floor unit of the apartment building. Laraway 

was about four meters away from the man when she also noticed 

that the window’s screen was rolled up. 

Laraway could only see the side of the man’s face as she 

walked by, but she observed the man had short, curly hair and a 

“scruffy face.” She also noted he was “not black, but he seemed 

to be suntanned, Caucasian with light brown . . . skin.” She 

did not recognize him. She took note of the man because “[i]t 

was quite unusual” for someone to be crouched there. The man 

was wearing a hat covering a portion of his face, but at the 

hearing she could not remember whether the hat cast a shadow 

over his face. 

When Laraway got into her car, which was parked facing 

towards the apartment, she looked up and saw the man’s upper 

body was through the window and into the apartment. She 

immediately called 911.5 

 

5 The recording of Laraway’s 911 call was not offered as evidence at the 

motion to suppress hearing.
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On the day of the incident, Laraway spoke and wrote in

English when interacting with HPD. Laraway had given the 

following description of the man to the 911 dispatcher: “a 

skinny black guy,” who was also “muscular” and “stout,” and who 

was wearing a white or light blue t-shirt. 

At the hearing, Laraway thought the shirt the man was 

wearing was long-sleeved. She also clarified that she did not 

describe the man’s hair to the 911 dispatcher or tell the 911 

dispatcher that the man’s face was “scratchy or unshaved.” 

After calling 911, Laraway drove to her son’s soccer game. 

While at the park, at around 2:00 p.m., Laraway received a call 

from an officer, but did not further describe the man she saw at 

the window at that time. 

Laraway returned home at around 3:00 p.m. and saw four 

police cars outside the apartment building. The police told 

Laraway they had “captured the guy in the laundromat.” She 

thought that meant they had caught the man she had seen earlier

at the window. Laraway agreed to participate in a field show-up 

outside the apartment building sometime between 3:00 p.m. and 

4:00 p.m. The officers did not provide her with any forms or 

instructions before conducting the show-up.

The officers asked Laraway to look at Kaneaiakala, who was 

standing on the sidewalk, shirtless, handcuffed, and surrounded 

by police officers. It was a “clear day” and she stood ten to 
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fifteen feet away from him. On June 24, 2015, Laraway told the 

police she was “[p]retty sure” Kaneaiakala was the same man she 

had seen earlier. She “got the same impression” from 

Kaneaiakala as she did from the man at the window, because of 

the “structure and the face and the hair color . . . the image 

itself, and also [the] complexion of his skin.” 

Laraway admitted she did not see anything distinct about 

the eyes or nose of the man at the window, and if shown someone 

with similar body shape and complexion, it might have been hard 

for her to identify the correct person. She further testified, 

however, that she was sure that Kaneaiakala was the man she saw 

at the window. 

After she identified Kaneaiakala, Laraway completed a

written statement on which she wrote, “I almost positive the guy 

was him.” After identifying Kaneaiakala, she also filled out a

suspect description form, checking various boxes describing the 

suspect as a Caucasian male, 5’6” to 5’8” feet tall with a 

medium build, dark brown hair, brown facial hair, and wearing a 

long-sleeved white polo shirt and long blue pants. She wrote in 

the word “scruffy” to describe the man at the window’s facial 

hair. 

Laraway explained that on June 24, 2015, she had checked 

the box indicating the man at the window was wearing pants, but 

she now recalled the man at the window was wearing shorts. She 
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also explained she checked the box for long-sleeved shirt, but 

testified that the man might have been wearing a short-sleeved 

shirt. She acknowledged she checked the box indicating the man 

at the window’s height based on later seeing Kaneaiakala at the 

show-up. 

On January 24, 2015, Laraway had spoken English with the 

officers and completed all forms in English. At some point that 

day, she told the police that she has “bad eyesight” and that 

she was not wearing her glasses when she saw the man at the 

window. Laraway testified she was born and raised in Japan and 

grew up interacting mostly with Japanese people. At her 

workplace, she predominately interacts with ethnically Japanese 

people. During her past decade in Hawaiʻi, however, she has seen 

and interacted with diverse people, and she is married to a 

Caucasian man. 

At the hearing, Laraway also identified Kaneaiakala, who 

was present in the courtroom, as the man she had seen at the 

window. 

b. Officer Hose’s Testimony

Officer Hose testified that on January 24, 2015, at around 

12:38 p.m., he responded to a “suspicious circumstances type 

case” at the apartment building. Upon his arrival, he noticed 

that a window screen of a ground-floor, corner apartment had 

been cut. He contacted the owner of the apartment, who arrived 
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around 1:00 p.m. The owner looked in the apartment and 

identified missing items. 

Officer Hose left the apartment, but was called back thirty 

minutes later to investigate a situation involving “a nude male 

in the laundry room.” When he returned, Officer Abe Kamanao 

(“Officer Kamanao”) was in the laundry room with the man, whom 

Officer Hose identified in court as Kaneaiakala. The officers 

found a long-sleeved, light-blue collared shirt and a pair of 

black shorts near Kaneaiakala and instructed Kaneaiakala to put 

on the shorts. Officer Hose observed that several items the 

apartment owner reported missing were in the laundry room, 

including the watch Kaneaiakala was wearing. 

Officer Hose then called Laraway, who said she was 

returning to the apartment building soon. When she returned, he 

asked her if she would be able to identify the man she saw at 

the window and whether she would “be willing to participate in a 

field show-up.” 

To conduct the show-up, Officer Hose had Kaneaiakala stand 

next to a parked police car on the street outside the apartment 

building. He had Laraway stand “no more than about 40 feet” 

away from Kaneaiakala, from where she had a clear, unobstructed 

view of Kaneaiakala. Laraway calmly and quickly identified

Kaneaiakala as the man she saw at the window. 

Officer Hose testified that Laraway was never given any 
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instructions and was never told that the person she viewed may 

or may not be a suspect. He denied telling Laraway that 

Kaneaiakala was the man she had seen earlier. He admitted that 

Laraway did not record her description of the man at the window 

until after the show-up. 

During Officer Hose’s cross-examination, the State 

stipulated that the show-up was impermissibly suggestive. 

c. The Circuit Court’s Findings of Fact, Conclusions 

of Law, and Order Denying Motion to Suppress

On October 27, 2015, the circuit court entered findings of 

fact and conclusions of law denying Kaneaiakala’s motion to 

suppress. The court’s findings of fact were based largely on 

Laraway’s testimony of the events that occurred on January 24, 

2015. The findings of fact included, among other things, that 

Laraway (1) participated in a field show-up, (2) recognized 

Kaneaiakala based on his build, body shape, complexion, and 

hair, and (3) told the officers she was “almost positive” that 

Kaneaiakala was the man she saw at the window. 

Based on those findings, the circuit court concluded that: 

(1) although the show-up procedure was impermissibly suggestive, 

(2) Laraway’s identification of Kaneaiakala was nonetheless 

admissible because the totality of the circumstances, including 

the five Biggers factors, indicated the identification was 

reliable. 
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The case then proceeded to jury trial. 

2. Jury Trial

Kaneaiakala’s jury trial was held from April 18, 2016 to 

April 20, 2016. The State called four witnesses: Laraway, 

Officer Hose, Kip Praissman (“Praissman”), and Officer Kamanao. 

Kaneaiakala did not present any witnesses. Laraway’s testimony 

was substantially similar to her testimony at the hearing on the 

motion to suppress. At trial, she added that she lived with her 

husband and son at the 2904 Date Street apartment building on 

January 24, 2015, and that she had left their apartment that day 

with her twelve-year-old son to go to her son’s soccer game at 

Kapiolani Park. Officer Hose’s testimony was substantially 

similar to his testimony at the hearing on the motion to 

suppress. 

Praissman, a resident of the ground-floor apartment that 

was broken into, testified in pertinent part as follows. He had 

locked the apartment when he left it the morning of January 24, 

2015. He returned around 1:00 p.m. after receiving a call from 

HPD that his apartment had been burglarized and met with HPD 

officers to identify what items were missing from the apartment 

and to provide a statement. 

A short time after the officers left, Praissman discovered 

a naked man standing in the laundry room of the apartment 

building and wearing Praissman’s watch. Praissman immediately 
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called the police. Praissman later identified other items the 

officers found in the laundry room with the man as items missing 

from his apartment. At trial, Praissman identified the man he 

saw in the laundry room as Kaneaiakala.

Officer Kamanao testified that on January 24, 2015, he had 

responded to a call regarding an attempted burglary at the 

apartment with Officer Hose and returned that same day in 

response to a call regarding a naked man in the building’s 

laundry room. Kamanao testified that, along with clothing and 

some of Praissman’s missing items, the officers also found a 

kitchen mitt, pair of scissors, pair of pliers, knife, dental 

floss, and a screwdriver on the washing machine near 

Kaneaiakala. At trial, Officer Kamanao identified Kaneaiakala

as the man he saw in the laundry room. 

The recording of Laraway’s phone call to 911 on the day of 

the incident was also introduced and played for the jury. 

The jury found Kaneaiakala guilty as charged of one count 

of Burglary in the First Degree in violation of HRS § 708-

810(1)(c). On September 20, 2016, the circuit court entered a

Judgment of Conviction and Sentence (“circuit court judgment”) 

sentencing Kaneaiakala to a ten-year term of imprisonment with a 

mandatory minimum sentence of three years and four months as a 

repeat offender. Kaneaiakala timely appealed from the circuit 

court judgment to the ICA. 
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B. ICA Proceedings

On appeal to the ICA, Kaneaiakala argued the circuit court 

erred by denying his motion to suppress because the field showup was impermissibly suggestive and Laraway’s identification of 

Kaneaiakala was unreliable. Kaneaiakala also argued there was 

insufficient evidence for the State to convict him of first 

degree burglary because the State did not present substantial 

evidence that Kaneaiakala burglarized the apartment. 

In response, the State conceded the show-up procedure was 

impermissibly suggestive. The State argued, as it did in 

opposition to the motion to suppress, that Laraway’s 

identification was nevertheless admissible because it was 

reliable based on the totality of the circumstances. The State 

maintained that based on the totality of the circumstances test 

set forth in Biggers and Padilla, the circuit court correctly 

denied Kaneaiakala’s motion to suppress. 

On November 7, 2017, the ICA entered an SDO affirming the 

circuit court’s denial of the motion to suppress and the circuit 

court judgment. Kaneaiakala, SDO at 2. Although the ICA 

accepted the State’s stipulation that the field show-up was 

impermissibly suggestive, the ICA determined that Laraway’s 

identification was sufficiently reliable and worthy of 

presentation to the jury based on the totality of the 
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circumstances.6 Kaneaiakala, SDO at 3-5. On November 24, 2017, 

the ICA entered a Judgment on Appeal consistent with the SDO 

(“judgment on appeal”). 

C. Application for Certiorari

Kaneaiakala timely filed an application for writ of 

certiorari from the ICA’s judgment on appeal and SDO. 

Kaneaiakala contends the ICA erred in upholding the circuit 

court’s rulings that Laraway’s identification of Kaneaiakala was 

sufficiently reliable for admissibility under Padilla.

III. Standards of Review

With respect to whether an eyewitness identification should 

be suppressed, we have held that “questions of suggestiveness 

and reliability are questions of law that are freely reviewable 

on appeal.” State v. Okumura, 78 Hawai‘i 383, 391, 894 P.2d 80, 

88 (1995), abrogated on other grounds by Cabagbag, 127 Hawai‘i at 

315, 277 P.3d at 1040. However, “answering these questions 

involves determinations of fact by the [trial] court.” 78

Hawaiʻi at 392, 894 P.2d at 89. “[F]actual determinations made 

by the trial court deciding pretrial motions in a criminal case 

[are] governed by the clearly erroneous standard,” and 

“conclusions of law are reviewed under the right/wrong 

 

6 The ICA also examined the State’s evidence and testimony adduced at 

trial and ultimately held there was substantial evidence identifying 

Kaneaiakala and thus sufficient evidence to convict him as charged. See

Kaneaiakala, SDO at 5-8. 
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standard.” State v. Edwards, 96 Hawai‘i 224, 231, 30 P.3d 238,

245 (2001) (quoting State v. Eleneki, 92 Hawai‘i 562, 564, 993 

P.2d 1191, 1193 (2000)).

“A finding of fact is clearly erroneous when (1) the 

record lacks substantial evidence to support the finding, or (2) 

despite substantial evidence in support of the finding, the 

appellate court is nonetheless left with a definite and firm 

conviction that a mistake has been made.” Okumura, 78 Hawaiʻi at 

392, 894 P.2d at 89 (citations and internal quotation marks 

omitted). When applying the “clearly erroneous” test, it must 

be remembered that:

[i]t is for the trial judge as fact-finder to assess the 

credibility of witnesses and to resolve all questions of 

fact; the judge may accept or reject any witness’s 

testimony in whole or in part. As the trier of fact, the 

judge may draw all reasonable and legitimate inferences and 

deductions from the evidence, and the findings of the trial 

court will not be disturbed unless clearly erroneous. An 

appellate court will not pass upon the trial judge’s 

decisions with respect to the credibility of witnesses and 

the weight of the evidence, because this is the province of 

the trial judge.

State v. Eastman, 81 Hawaiʻi 131, 139, 913 P.2d 57, 65 (1996) 

(citations omitted).

IV. Discussion

A. As State v. Padilla Controlled, the Circuit Court’s Denial 

of the Motion to Suppress was Properly Affirmed by the ICA

A defendant is denied due process of law when the procedure 

used to obtain an eyewitness identification admitted at trial is 

“unnecessarily suggestive and conducive to irreparable mistaken 
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identification.” Masaniai, 63 Haw. at 362, 628 P.2d at 1024 

(citations omitted). We have held, however, that an eyewitness 

identification is not inadmissible merely because the 

identification procedure was impermissibly suggestive. State v. 

Malani, 59 Haw. 167, 170, 578 P.2d 236, 238 (1978) (citing 

Manson v. Brathwaite, 432 U.S. 98, 109-114 (1977)) 

(“Impermissible suggestiveness alone does not require the 

exclusion of identification evidence.”). Rather, whether an 

eyewitness identification obtained through an impermissibly 

suggestive procedure is admissible depends upon the reliability 

of the identification. Cabagbag, 127 Hawai‘i at 309, 277 P.3d at 

1034 (citing Padilla, 57 Haw. at 153-55, 552 P.2d at 360-61). 

Kaneaiakala argues the ICA erred in upholding the circuit 

court’s ruling that Laraway’s identification was sufficiently 

reliable under Padilla and thus admissible, because the 

impermissibly suggestive show-up produced an unreliable 

identification and created a substantial likelihood of 

misidentification, requiring suppression of the identification. 

We hold that pursuant to the Padilla rule then in effect, the 

circuit court did not clearly err in concluding that Laraway’s 

identification was sufficiently reliable and thus admissible. 

Therefore, the ICA did not err with regard to the admission of 

Laraway’s identification.
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In this case, the circuit court accepted the State’s 

stipulation that the show-up identification of Kaneaiakala was 

impermissibly suggestive. See Cabinatan, 132 Hawaiʻi at 76, 319 

P.3d at 1084 (“While show-ups are permissible, they are 

inherently suggestive.”) (citations omitted). The circuit court 

then applied the five Biggers factors we adopted in Padilla to 

determine whether the show-up identification at issue was 

nevertheless sufficiently reliable to be admissible in evidence. 

Padilla held that even if an eyewitness identification is 

procured through an impermissibly suggestive procedure, the 

trial court must nonetheless determine whether the 

identification is sufficiently reliable under the totality of 

the circumstances to be admissible in evidence. See Padilla, 57 

Haw. at 154, 552 P.2d at 360. Under Padilla, the circuit court 

was required to conduct a totality of the circumstances analysis 

of Laraway’s identification, paying particular attention to (1) 

Laraway’s opportunity to view the suspect at the time of the 

crime, (2) her degree of attention, (3) the accuracy of her

prior description of the suspect, (4) the level of certainty she 

demonstrated at the show-up, and (5) the length of time between

the crime and the show-up. See Padilla, 57 Haw. at 154, 552 

P.2d at 360 (citing Biggers, 409 U.S. at 199-200). 

With respect to the five factors, the circuit court found: 

(1) Laraway “got a good look” at the suspect on the day of the 
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incident; (2) she observed the suspect’s build, complexion, 

hairstyle, and clothing; (3) she did not recognize the suspect 

and felt something was wrong; (4) she looked back at the 

apartment while inside her car and saw that the suspect’s upper 

body had entered the apartment window, prompting her to call 

911; (5) Laraway had been “almost positive” at the field show-up 

that Kaneaiakala was the same man she saw beneath the window; 

and (6) at the motion to suppress hearing, Laraway “was sure 

that [Kaneaiakala] was the person she saw earlier,” even if “she 

might have a hard time picking between two people with similar 

body shape and complexion without seeing their face[s].” The 

court also found that the show-up was conducted within three 

hours of Laraway’s initial observation of the suspect. The 

court concluded that within the totality of the circumstances, 

including consideration of the five reliability factors, 

Laraway’s identification was worthy of presentation to the jury. 

Upon review of the testimony adduced at the motion to 

suppress hearing, the circuit court did not clearly err. The 

ICA, therefore, did not err in upholding the circuit court’s 

denial of Kaneaiakala’s motion to suppress based on the Padilla

standards in effect at the time of the circuit court’s ruling.7 

 

7 Kaneaiakala also argues that because Laraway’s identification should 

not have been admitted, the State did not present substantial evidence of his 

identity, and therefore the ICA erred by holding there was sufficient 

evidence at trial for his conviction. Our affirmance of the ICA’s holding 

(continued. . .)
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B. Prospectively, Trial Courts Must Consider the Same Factors 

as Jurors in Evaluating the Reliability of Challenged 

Eyewitness Identifications for Admissibility Purposes 

1. The Padilla Factors are Insufficient

As discussed, under our current framework, when a defendant 

challenges the admissibility of an eyewitness identification 

based on an impermissibly suggestive procedure, courts are 

required to determine within the totality of the circumstances 

whether the identification is nonetheless “sufficiently reliable 

so that it is worthy for presentation to and consideration by 

the jury.” See State v.Walton, 133 Hawai‘i 66, 87-88, 324 P.3d 

876, 898 (2014) (citations omitted). The identification must be 

suppressed only if the impermissibly suggestive procedure used 

created a very substantial likelihood of misidentification. 133 

Hawai‘i at 87, 324 P.3d at 897 (citations omitted).

In this case, the circuit court applied the five-factor 

Biggers test we adopted in Padilla to determine whether a showup identification obtained from impermissibly suggestive 

procedure is nonetheless reliable under the totality of the 

circumstances and thus admissible. 57 Haw. at 154, 552 P.2d at 

360. Since Padilla, we have not modified the 

five-factor test for admissibility of impermissibly suggestive 

eyewitness identifications. See, e.g., Cabagbag, 127 Hawaiʻi at 

 

(continued. . .)

that the circuit court did not err in admitting Laraway’s identification is 

dispositive on that issue. 
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309, 277 P.3d at 1034 (applying the Padilla/Biggers factors in 

2012).

It has become widely accepted since 1976, however, that 

misidentifications are one of the leading causes of wrongful 

convictions. 127 Hawaiʻi at 315, 277 P.3d at 1040. A robust 

body of scholarship and empirical research has emerged calling 

into doubt whether the Biggers factors we adopted in Padilla are 

sufficient indicators of reliability and admissibility. 

In Cabagbag, we held that when identification evidence is a 

central issue in a case, a court must, at the defendant’s 

request, give a specific jury instruction about factors 

affecting the reliability of eyewitness identification. 127 

Hawai‘i at 304, 313–15, 277 P.3d at 1029, 1038–40. To support 

the need for the special jury instructions, we cited numerous 

studies evincing the connection between unreliable eyewitness 

identifications and wrongful convictions. 127 Hawaiʻi at 310-14, 

277 P.3d at 1035-39. We explained:

Many studies now confirm that false identifications are 

more common than was previously believed. For example, 

Professor Brandon L. Garrett concluded in a study involving 

250 exonerated defendants that “[e]yewitnesses 

misidentified 76% of the exonerees (190 of 250 cases).” 

Brandon L. Garrett, Convicting the Innocent: Where Criminal 

Prosecutions Go Wrong, 48 (2011). Professor Garrett’s 

original study of 200 such cases in 2008 concluded that 

eyewitness identification testimony was the leading 

contributing factor to wrongful convictions and was four 

times more likely to contribute to a wrongful conviction 

than a false confession. Brandon L. Garrett, Judging 

Innocence, 108 Colum. L. Rev. 55, 76 (2008). Other studies 

have reached similar results. See, e.g., Edward Connors, 

et. al., Convicted by Juries, Exonerated by Science: Case 

Studies in the Use of DNA Evidence to Establish Innocence 
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after Trial, 15, 96 (1996), available at https://www.ncjrs. 

gov/pdffiles/dnaevid.pdf (reviewing 28 sexual assault cases 

in which defendants were later exonerated and concluding 

that all cases, except those involving homicide, “involved 

victim eyewitness identification both prior to and at 

trial,” and that in those cases “eyewitness testimony was 

the most compelling evidence”); Gary L. Wells, et. al.,

Recommendations for Properly Conducted Lineup 

Identification Tasks, in Adult Eyewitness Testimony: 

current Trends and Developments 223–24 (1994) (studying 

over 1,000 wrongful convictions and concluding that recall 

errors by witnesses were the leading cause of such 

convictions).

127 Hawaiʻi at 310, 277 P.3d at 1035 (some formatting altered). 

In Cabagbag, we recognized that studies had identified

factors such as “passage of time, witness stress, duration of 

exposure, distance, ‘weapon focus . . . ’, and cross-race bias”8

as affecting the reliability of an eyewitness identification. 

127 Hawaiʻi at 310-11, 277 P.3d at 1035-36. We also noted that,

“[e]mpirical research has also undermined the common sense 

notion that the confidence of the witness is a valid indicator 

of the accuracy of the identification.” 127 Hawai‘i at 311, 277 

P.3d at 1036. 

Accordingly, we set out thirteen factors that a judge 

should consider including in a jury instruction on how to assess 

the reliability of an eyewitness identification which Hawaii’s 

 

8 Other jurisdictions have also recognized that cross-race identification 

raises significant reliability issues. See, e.g., Young v. State, 374 P.3d 

395, 424 (Alaska 2016); State v. Henderson, 27 A.3d 872, 907 (N.J. 2011). 

See also Anthony G. Greenwald & Linda Hamilton Krieger, Implicit Bias: 

Scientific Foundations, 94 CALIF. L. REV. 945, 946 (2006) (“[T]he science 

of implicit cognition suggests that actors do not always have conscious, 

intentional control over the processes of social perception, impression 

formation, and judgment that motivate their actions.”).
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Standard Committee on Pattern Jury Instructions (“Jury 

Instructions Committee”) has adopted in Hawaiʻi Standard 

Instruction 3.19. HAWJIC 3.19 reads as follows:

The burden of proof is on the prosecution with reference to 

every element of a crime charged, and this burden includes 

the burden of proving beyond a reasonable doubt the 

identity of the defendant as the person responsible for the 

crime charged. 

You must decide whether an eyewitness gave accurate 

testimony regarding identification. 

In evaluating identification testimony, you may consider 

the following factors: 

The opportunity of the witness to observe the person 

involved in the alleged criminal act; 

The stress, if any, to which the witness was subject at the 

time of the observation; 

The witness’s ability, following the observation, to 

provide a description of the person; 

The extent to which the defendant fits or does not fit the 

description of the person previously given by the witness; 

The cross-racial or ethnic nature of the identification; 

The witness’s capacity to make an identification; 

Evidence relating to the witness’s ability to identify 

other participants in the alleged criminal act; 

Whether the witness was able to identify the person in a 

photographic or physical lineup; 

The period of time between the alleged criminal act and the 

witness’s identification; 

Whether the witness had prior contacts with the person; 

The extent to which the witness is either certain or 

uncertain of the identification and whether the witness’s 

assertions concerning certainty or uncertainty are wellfounded; 

Whether the witness’s identification is in fact the product 

of his/her own recollection; and 

Any other evidence relating to the witness’s ability to 

make an identification.
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HAWJIC 3.19 Eyewitness Testimony (added underscoring indicating 

substantive addition to the instruction approved in Cabagbag).9 

The existing Padilla factors, in contrast, only require 

that a judge consider the following five factors, some of which 

are subsumed in different terminology within HAWJIC 3.19: (1) 

the opportunity of the witness to view the defendant at the time 

of the crime, (2) the witness's degree of attention, (3) the 

accuracy of the witness's prior description of the defendant,

(4) the level of certainty demonstrated by the witness at the 

identification, and (5) the length of time between the crime and 

the identification.

In Cabagbag, by ruling that trial courts no longer have 

discretion to reject a defense request for a jury instruction 

regarding the reliability of an eyewitness identification, we 

abrogated our holding in Padilla that the decision on whether or 

not to give such a jury instruction was discretionary with the 

trial court. While overruling Padilla on this point, however, 

as admissibility was not at issue, we did not address whether a 

trial judge should also have to consider the thirteen Cabagbag

factors, rather than the five Padilla factors, to determine 

 

9 In addition to the underscored text, HAWJIC 3.19 differs from the 

instruction proposed in Cabagbag by its use of “person involved in the 

alleged criminal act” in place of where Cabagbag used “perpetrator.” Compare

HAWJIC 3.19 with Cabagbag, 127 Hawai‘i at 314, 277 P.3d at 1039. 
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whether an impermissibly suggestive eyewitness identification 

was nonetheless sufficiently reliable under the totality of 

circumstances to be admissible in evidence. 

After Cabagbag, in Cabinatan, we noted that although field 

show-up identifications can be admissible, they are inherently

suggestive. Cabinatan, 132 Hawaiʻi at 76, 319 P.3d at 1084.10 We 

 

10 We noted:

The police did not have Kincaid identify Cabinatan in 

either a line-up or photographic array. Thus, 

identification of Cabinatan was made at an inherently 

suggestive field showup where Cabinatan was in 

handcuffs. See, e.g., United States v. Newman, 144 F.3d 

531, 535 (7th Cir. 1998) (“We have noted many times that a 

showup identification, in which witnesses confront only one 

suspect, is inherently suggestive.”) (citing United States 

ex rel. Kirby v. Sturges, 510 F.2d 397, 403 (7th Cir. 

1975) (Stevens, J.) (“Without question, almost any one-toone confrontation between a victim of crime and a person 

whom the police present to him as a suspect must convey the 

message that the police have reason to believe him 

guilty.”)). The United States Supreme Court has noted that 

“the influence of improper suggestion upon identifying 

witnesses probably accounts for more miscarriages of 

justice than any other single factor.” United States v. 

Wade, 388 U.S. 218, 229, 87 S.Ct. 1926, 18 L.Ed.2d 1149

(1967) (internal quotation marks omitted). Such suggestive 

circumstances have a “corrupting effect” on 

reliability. Manson v. Brathwaite, 432 U.S. 98, 114, 97 

S.Ct. 2243, 53 L.Ed.2d 140 (1977); see also Stovall v. 

Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199

(1967) (“The practice of showing suspects singly to persons 

for the purpose of identification, and not as part of a 

lineup, has been widely condemned.”); State v. DeCenso, 5 

Haw.App. 127, 131, 681 P.2d 573, 578 (1984). As explained 

by the dissent in Perry [v. New Hampshire, 565 U.S. 228, 

251 (2012)], an initial identification derived through 

suggestive circumstances often is difficult to discredit as 

part of the adversary process:

Eyewitness evidence derived from suggestive 

circumstances . . . is uniquely resistant to 

the ordinary tests of the adversary process. 

An eyewitness who has made an identification 

often become convinced of its accuracy. . . . 

At trial, an eyewitness' artificially inflated 

(continued. . .)
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held that under the circumstances of that case, where the 

eyewitness’s testimony indicated her show-up identification of 

the defendant might have been influenced by suggestive 

procedures, even though the giving of an instruction was 

discretionary pre-Cabagbag, the trial court abused its 

discretion in denying a defense request for a jury instruction 

regarding the inherent suggestiveness of show-up 

identifications. Cabinatan, 132 Hawaiʻi at 77, 319 P.3d at 1085.

Again, although we ruled that jurors must be instructed on 

issues regarding the suggestiveness of show-up identifications, 

as admissibility was not at issue, we did not address whether a 

judge would also be required to consider suggestiveness factors 

affecting reliability in evaluating admissibility. 

As a result of our holding in Cabinatan, the Jury 

Instructions Committee also promulgated Hawaiʻi Standard 

Instruction 3.19A regarding show-up identifications, which reads 

as follows:

 

(continued. . .)

confidence in an identification's accuracy 

complicates the jury's task of assessing 

witness credibility and reliability. . . . The 

end result of suggestion . . . is to fortify 

testimony bearing directly on guilt that juries 

find extremely convincing and are hesitant to 

discredit.

Perry, 132 S.Ct. at 732 (Sotomayor, J., dissenting).

Cabinatan, 132 Hawaiʻi at 82-83, 319 P.3d at 1090-91. 
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In this case, in addition to other eyewitness 

identification testimony, you have received evidence that 

the defendant was identified by a witness at a so-called 

“show-up” conducted by the police. While show-ups are 

permissible, they are inherently suggestive police 

procedures. In determining the reliability and accuracy of 

an identification made at a police show-up, you must 

consider the totality of the circumstances involved in the 

show-up, which may include the following: 

[Whether the identification was the result of a suggestive 

procedure, including actions taken or words spoken by 

police or anyone else to the witness before, during, or 

after the identification process;] 

[Whether the police either indicated to the witness that a 

suspect was present in the procedure or failed to warn the 

witness that the perpetrator11 may or may not be in the 

procedure;] 

[Whether the defendant was required to wear distinctive 

clothing that the perpetrator allegedly wore, or was 

handcuffed or otherwise appeared to be in police custody;] 

[Whether the witness was exposed to opinions, descriptions, 

or identifications made by other witnesses, or to 

photographs, news media, or to any other information that 

may have influenced the independence of the 

identification;] 

[Whether other participants in the show-up were similar in 

appearance to the defendant;] 

[Whether the witness's identification was made 

spontaneously and remained consistent thereafter;] 

[and any other circumstance relating to the witness’s 

ability to make an identification.]

HAWJIC 3.19A Show-Up Identification. 

This instruction appropriately points out additional 

factors that a judge should consider including in a jury 

instruction regarding the reliability of show-up 

identifications. Yet, trial courts are currently not required 

 

11 We suggest that, similar to HAWJIC 3.19, “perpetrator” be changed to 

“person involved in the alleged criminal act” whenever it appears in this 

instruction. See supra text accompanying note 9. 
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to consider any of these factors that may be relevant in 

evaluating reliability for admissibility purposes.

2. Admissibility Criteria in Other States

Several states that also adopted the five-factor Biggers

test, as we did in Padilla, have since modified their frameworks 

to require trial judges to consider additional factors affecting 

reliability contained in jury instructions when they evaluate 

the reliability of eyewitness identifications for admissibility 

purposes.

The Utah Supreme Court, for example, adopted the Biggers

test in 1980. See State v. McCumber, 622 P.2d 353, 357 (Utah

1980) (abrogation recognized in State v. Ramirez, 817 P.2d 774, 

779-81 (Utah 1991)). Initially, in 1986, as we did in Cabagbag, 

the Utah court recognized weaknesses with the Biggers test in 

light of scientific studies on human memory and modified the 

considerations to be included in its jury instructions, which 

previously only included the five Biggers factors. See State v. 

Long, 721 P.2d 483, 490 (Utah 1986). The Utah court retained 

only two of the Biggers factors and explicitly rejected the 

Biggers “level of certainty” factor based on studies indicating 

that suggestive police procedures may influence a witness’s 

confidence. See Long, 721 P.2d at 490-93. The Utah court also 

required consideration of whether an identification was the 

product of suggestion. See 721 P.2d at 493. 
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Then, with respect to the admissibility of suggestive 

eyewitness identifications, the Utah Supreme Court ruled in 1991 

that the reliability factors to be included in jury instructions 

also applied to the threshold question of the admissibility of 

eyewitness identifications.12 See Ramirez, 817 P.2d at 778-79. 

Similarly, the New Jersey Supreme Court had adopted Biggers

and Manson in 1982. State v. Carter, 449 A.2d 1280, 1303-04 

(N.J. 1982). Then in 2011, in the leading case State v. 

Henderson,

13 after extensive research on memory and the 

reliability of eyewitness identification,14 the New Jersey 

Supreme Court recognized that “[s]cience has proven that memory 

is malleable. The body of eyewitness identification research 

 

12 The Utah test for reliability, based on the considerations enunciated 

in Long, are: 

(1) [T]he opportunity of the witness to view the actor 

during the event; (2) the witness’s degree of attention to 

the actor at the time of the event; (3) the witness’s 

capacity to observe the event, including his or her 

physical and mental acuity; (4) whether the witness’s 

identification was made spontaneously and remained 

consistent thereafter, or whether it was the product of 

suggestion; and (5) the nature of the event being observed 

and the likelihood that the witness would perceive, 

remember and relate it correctly. 

Ramirez, 817 P.2d at 781 (quoting Long, 721 P.2d at 493). Utah courts have 

also identified expert testimony as an effective means of assisting jurors 

with determining eyewitness identification reliability. See, e.g., State v. 

Clopten, 223 P.3d 1103, 1108-15 (Utah 2009).

13 We discussed Henderson in Cabagbag. See 127 Hawaiʻi at 312-13.

14 Henderson was based in large part on the findings of a Special Master, 

who was appointed to evaluate hundreds of scientific studies, preside over 

hearings, hear testimony from seven experts, and issue an extensive report 

regarding human memory and the reliability of eyewitness identifications. 

Henderson, 27 A.3d at 877-78. 
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further reveals that an array of variables can affect and dilute 

memory and lead to misidentifications.” Henderson, 27 A.3d at 

895. Henderson recognized that, in practice, many New Jersey 

courts treated the Biggers factors as a checklist without 

considering the effects of other variables on the reliability of 

the identification within the totality of the circumstances. 

Henderson, 27 A.3d at 919.15

The New Jersey Supreme Court announced a new, nonexhaustive list of twenty-two reliability factors to be 

considered within the totality of the circumstances by a court 

when ruling on the admissibility of an eyewitness 

identification. 27 A.3d at 920-23.16 The New Jersey Supreme 

Court ruled that for a defendant to obtain a pretrial hearing on 

the admissibility of an eyewitness identification, the 

“defendant has the initial burden of showing some evidence of 

suggestiveness” due to one or more system variables “that could 

 

15 The New Jersey Supreme Court also raised concerns that three of the 

Biggers factors — the witness’s opportunity to view the crime, the witness’s 

degree of attention, and the witness’s level of certainty at the time of 

identification — rely on witness self-reporting, which may be affected by 

suggestive procedure. Henderson, 27 A.3d at 918.

16 The New Jersey Supreme Court divided the factors into (1) “system 

variables,” which are factors that are within the control of the criminal 

justice system, such as police procedure, and (2) “estimator variables,” 

which are factors “related to the witness, the perpetrator, of the event 

itself — like distance, light, or stress — over which the legal system has no 

control.” Henderson, 27 A.3d at 878, 895-96, 920-23. 
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lead to a mistaken identification.”17 27 A.3d at 920. To avoid 

suppression of the identification, the prosecution would then be 

 

17 “System variables,” factors that are within the control of the criminal 

justice system, laid out by Henderson include: 

1. Blind Administration. Was the lineup procedure 

performed double-blind? [Where the administrator does not 

know which lineup member is the subject.] If double-blind 

testing was impractical, did the police use a technique . . 

. to ensure that the administrator had no knowledge of 

where the suspect appeared in the photo array or lineup?

2. Pre-identification Instructions. Did the administrator 

provide neutral, pre-identification instructions warning 

that the suspect may not be present in the lineup and that 

the witness should not feel compelled to make an 

identification?

3. Lineup Construction. Did the array or lineup contain 

only one suspect embedded among at least five innocent 

fillers? Did the suspect stand out from other members of 

the lineup?

4. Feedback. Did the witness receive any information or 

feedback, about the suspect or the crime, before, during, 

or after the identification procedure?

5. Recording Confidence. Did the administrator record the 

witness' statement of confidence immediately after the 

identification, before the possibility of any confirmatory 

feedback?

6. Multiple Viewings. Did the witness view the suspect 

more than once as part of multiple identification 

procedures? Did police use the same fillers more than 

once?

. . . .

[7.] Private Actors. Did law enforcement elicit from the 

eyewitness whether he or she had spoken with anyone about 

the identification and, if so, what was discussed?

[8.] Other Identifications Made. Did the eyewitness 

initially make no choice or choose a different suspect or 

filler?

27 A.3d at 920. The New Jersey Supreme Court later revised this framework to 

allow a defendant to trigger a pretrial hearing due to estimator variables as 

well as system variables. State v. Chen, 27 A.3d 930, 943 (N.J. 2011); see

also State v. Almaraz, 301 P.3d 242, 252-53 (Idaho 2013) (adopting system 

variables as threshold considerations for whether a pre-trial hearing on a 

(continued. . .)
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required to offer proof at the hearing, accounting for both 

system and estimator variables, that the identification is 

reliable. 27 A.3d at 919. The ultimate burden in New Jersey, 

however, remained with the defendant “to prove a very 

substantial likelihood of irreparable misidentification.” 27 

A.3d at 920.18 

 

(continued. . .)

motion to suppress an eyewitness identification allegedly procured from 

suggestive police procedure is necessary). 

18 Hawaiʻi law requires a “very substantial likelihood of irreparable 

misidentification” based on a totality of circumstances for suppression of 

identification. Padilla, 57 Haw. at 154, 552 P.2d at 360. Padilla cited to 

the United States Supreme Court opinion in Simmons v. United States, 390 U.S. 

377, 384 (1968) for this test. With respect to the burden in cases 

challenging identifications, the United States Supreme Court

applie[s] a two-step inquiry: First, the defendant has the burden 

of showing that the eyewitness identification was derived through 

“impermissibly suggestive” means. Simmons, 390 U.S. at 384, 88 

S.Ct. 967. [S]econd, if the defendant meets that burden, courts 

consider whether the identification was reliable under the 

totality of the circumstances. That step entails considering the 

witness'[s] opportunity to view the perpetrator, degree of 

attention, accuracy of description, level of certainty, and the 

time between the crime and pretrial confrontation, then weighing 

such factors against the “corrupting effect of the 

suggestive identification.” Braithwaite, 432 U.S.[] at 108, 114, 

97 S.Ct. 2243. Most identifications will be admissible. The 

standard of “fairness as required by the Due Process 

Clause,” id., at 113, 97 S.Ct. 2243, however, demands that a 

subset of the most unreliable identifications—those carrying a “ 

‘very substantial likelihood of . . . misidentification’”—will be 

excluded. Biggers, 409 U.S.[] at 198, 93 S.Ct. 375.

Perry, 565 U.S. at 253-54. Thus, a defendant challenging an eyewitness 

identification has the initial burden to show that the identification was 

“impermissibly suggestive.” The court then independently analyzes whether 

there is a “very substantial likelihood of misidentification” under the 

totality of circumstances. To the extent Hawaiʻi cases state that

[w]hen the defendant challenges admissibility 

of eyewitness identification on the grounds of impermissibly 

suggestive pre-trial identification procedure, he or she has 

the burden of proof, and the court, trial or appellate, is faced 

with two questions: (1) whether the procedure was impermissibly 

(continued. . .)
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Thus, in determining whether suggestive identifications 

should be admissible, New Jersey requires courts to employ a 

totality of the circumstances test considering reliability 

variables set forth in Henderson.

19 27 A.3d at 919. Other 

states have since expressly adopted New Jersey’s Henderson

framework. See, e.g., State v. Harris, 191 A.3d 119, 143–44 

(Conn. 2018); Young, 374 P.3d at 427-28.20 

 

(continued. . .)

or unnecessarily suggestive; and (2) if so, whether, upon viewing 

the totality of the circumstances, such as opportunity to view at 

the time of the crime, the degree of attention, and the elapsed 

time, the witness's identification is deemed sufficiently 

reliable so that it is worthy of presentation to and 

consideration by the jury,

Walton, 133 Hawaiʻi at 83, 324 P.3d at 893, an interpretation of this phrase 

placing the burden of proof on the defendant to establish factor (2) would 

not comport with the standard of “fairness as required by the Due Process 

Clause” of the federal constitution. Manson, 432 U.S. at 113.

19 Under New Jersey’s new test, the court may end the pretrial hearing at

any time if the court determines the defendant’s suggestiveness accusation is 

groundless. Henderson, 27 A.3d at 920. 

20 The Idaho Supreme Court decided to maintain the two-part test from 

Biggers/Manson, in which a court considering whether to grant a motion to 

suppress an eyewitness identification must first determine whether the 

“identification procedures are overly suggestive,” and, if they are, then 

“examine whether the reliability of the identification outweighs the 

corrupting effect of the suggestive identification.” Almaraz, 301 P.3d at 

252. Referencing Henderson, however, the Idaho Supreme Court held that Idaho 

courts must consider system variables when determining the suggestiveness of 

the procedure, and then consider estimator variables within the application 

of the Biggers factors to determine reliability and admissibility. 301 P.3d 

at 252-53; see also State v. Moore, 430 P.3d 1278, 1280 (Idaho 2018)

(applying eyewitness identification reliability test announced in Almaraz).

Other states have adopted some other factors in the 

reliability/admissibility analysis. Vermont has abandoned the Biggers

“witness certainty” reliability factor based on empirical research indicating 

that witness certainty is easily corrupted by suggestive procedure. See

State v. Discola, 184 A.3d 1177, 1188–89 (Vt. 2018); see also Commonwealth v. 

Gomes, 22 N.E.3d 897 (Mass. 2015) (requiring juries to be instructed on 

principles affecting reliability), abrogated on other grounds by

Commonwealth v. Bastaldo, 32 N.E.3d 873 (Mass. 2015) (building 

on Gomes regarding application of cross-racial identification instruction); 

(continued. . .)
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3. Revised Admissibility Criteria 

We did not adopt New Jersey’s twenty-two factor “system” 

and “estimator” reliability factors. See Cabagbag, 127 Hawaiʻi

at 314, 277 P.3d at 1039. Instead, we set out thirteen factors, 

now reflected in Hawaiʻi Standard Instruction 3.19, that a judge

should consider including in a jury instruction regarding the 

reliability of an eyewitness identification. Factors a judge 

should consider in addressing whether an impermissibly 

suggestive eyewitness or show-up identification is nonetheless 

sufficiently reliable to be admitted into evidence should not 

differ from the factors a judge should consider including in a 

jury instruction regarding reliability. We therefore agree with 

New Jersey, Utah, and other states that the factors a jury must 

consider in evaluating the reliability of an eyewitness or showup identification must also be considered by a trial court in 

addressing admissibility of an impermissibly suggestive 

eyewitness or show-up identification. 

Thus, we prospectively hold that trial courts must, at 

minimum, consider any relevant factors set out in the Hawaiʻi 

Standard Instructions governing eyewitness and show-up 

identifications, as may be amended, as well as any other 

 

(continued. . .)

State v. Lawson, 291 P.3d 673 (Or. 2012) (limiting admissibility of 

eyewitness identifications based on rules of evidence). 
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relevant factors that may be set out in binding precedent in 

addressing whether, under a totality of circumstances, an 

impermissibly suggestive eyewitness or show-up identification is 

nonetheless sufficiently reliable to be admissible in evidence.

As this holding sets forth a new rule that expressly 

overrules precedent upon which parties have regulated their 

conduct, it will only apply prospectively to admissibility 

determinations made after the date of this opinion.21 

C. Prospectively, Judges Must Also Consider the Impact of 

Suggestive Procedures as a Part of the Admissibility of 

Determination

Padilla only required a trial judge to address 

suggestiveness as a threshold issue; if an eyewitness 

identification was determined to have been procured through an 

impermissibly suggestive procedure, Padilla required the trial 

court to evaluate five factors under the totality of the 

circumstances to determine whether the identification is 

nonetheless sufficiently reliable to be admitted in evidence. 

 

21 See Auld, 136 Hawaiʻi at 256, 361 P.3d at 483 (“The ‘paradigm case’

warranting a prospective-only application of a new rule arises ‘when a court 

expressly overrules a precedent upon which the contest would otherwise be 

decided differently and by which the parties may previously have regulated 

their conduct.’”) (citations omitted); State v. Jess, 117 Hawaiʻi 381, 400-02, 

184 P.3d 133, 152-54 (2008) (summarizing our case law on the retroactivity of 

new rules); Cabagbag, 127 Hawaiʻi at 317, 277 P.3d at 1042 (holding that a new 

rule requiring a jury instruction on eyewitness identification in certain 

circumstances would have prospective effect only). Although “judicial 

decisions are assumed to apply retroactively,” when this court “announces a 

‘new rule,’ then this court may, in its discretion, determine that the 

interests of fairness preclude retroactive application of the new rule.” 

State v. Ketchum, 97 Hawaiʻi 107, 123 n.26, 34 P.3d 1006, 1022 n.26 (2001). 
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Padilla, 57 Haw. at 154, 552 P.2d at 360. Suggestiveness 

itself, however, was not one of the five factors to be 

considered by a trial court to determine admissibility.

As noted earlier, however, various courts, including the 

Utah Supreme Court, now also require consideration of whether an 

identification was the product of suggestion as a part of a 

trial court’s reliability evaluation determining whether an 

eyewitness identification should be admitted into evidence. See

Long, 721 P.2d at 493. For it is known that human memory, and 

therefore reliability, can also be distorted and affected by 

suggestive police procedures. See Henderson, 27 A.3d at 894-95. 

In fact, in the 1977 Manson case, decided five years after 

Biggers, the United States Supreme Court itself reaffirmed the 

Biggers test, but noted that the factors indicating reliability 

should be weighed against the “corrupting effect of the 

suggestive identification itself.” Manson, 432 U.S. at 114. 

In this regard, eyewitnesses who receive “a simple postidentification confirmation regarding the accuracy of their 

identification significantly inflate their reports to suggest 

better witnessing conditions at the time of the crime, stronger 

memory at the time of the lineup, and sharper memory abilities 

in general.” Henderson, 27 A.3d at 899 (citations omitted).

Moreover, suggestiveness in police conduct — intentional or 

unintentional — may undermine the independence and accuracy of 
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the witness’s recollection and subsequent identification. See

Perry, 565 U.S. at 251 (Sotomayor, J., dissenting) (citation 

omitted) (“Our precedents make no distinction between 

intentional and unintentional suggestion. To the contrary, they 

explicitly state that ‘[s]uggestion can be created intentionally 

or unintentionally in many subtle ways.’”); see also, Gomes, 22 

N.E.3d at 915 (discussing impacts of suggestiveness on witness 

confidence). Thus, Alaska has also held that any suggestiveness 

in procuring an eyewitness identification — irrespective of 

whether it be an “impermissible” or “unnecessary” suggestion —

requires an evaluation of reliability by the court. See Young, 

374 P.3d at 426. 

Therefore, it is clear that suggestive procedures can also 

affect the reliability of eyewitness identifications and should 

be considered in the admissibility determination. To counteract 

possible effects of suggestive procedures on reliability, we 

therefore also prospectively hold that in addressing 

admissibility of a suggestive eyewitness or show-up 

identification, trial courts must also consider the effect of 

the suggestiveness on the reliability of the identification in 

determining whether it should be admitted into evidence. 
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D. Prospectively, When Applicable, Juries Must Also Be 

Instructed To Consider the Impact of Suggestive Procedures 

as a Part of the Reliability Determination

Correspondingly, we hold that when an identification has 

been procured through a suggestive eyewitness or show-up 

identification procedure or when the eyewitness or show-up 

identification is central to the case, the jury must also be 

instructed to consider the impact of the any suggestive 

procedures on the reliability of the eyewitness or show-up 

identification. Although Hawaiʻi Standard Instruction 3.19A 

regarding show-up identification recognizes this by including as 

a factor “[w]hether the identification was the result of a 

suggestive procedure, including actions taken or words spoken by 

police or anyone else to the witness before, during, or after 

the identification process,” Hawaiʻi Standard Instruction 3.19 

regarding “Eyewitness Testimony” does not, and it should 

therefore be amended to also include this language from Hawaiʻi 

Standard Instruction 3.19A.22

 

22 In addition, in Cabagbag, we noted that an eyewitness’s heightened 

confidence regarding the accuracy of an identification may not correlate with 

heightened reliability of the identification, and we noted that although 

empirical research has also undermined the seemingly common sense notion that 

the confidence of the witness is a valid indicator of the accuracy of the 

identification, courts and juries continue to place great weight on the 

confidence expressed by the witness in assessing reliability. Cabagbag, 127 

Hawai‘i at 311, 277 P.3d at 1036. The Utah Supreme Court explicitly rejected 

the Biggers “level of certainty” factor based on studies indicating that 

suggestive police procedures may influence a witness’s confidence. See Long, 

721 P.2d at 490. The Massachusetts Supreme Judicial Court also notes the 

impact of suggestiveness on witness confidence. Gomes, 22 N.E.3d at 915. 
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As this holding also sets forth a new rule, it applies

prospectively to events occurring after publication of this 

decision, i.e., to jury instructions given after the date of 

this opinion.

E. Other Considerations

We also note that a trial court’s ruling that an 

identification is admissible does not affect the State’s burden 

at trial to prove beyond a reasonable doubt the identity of the 

defendant as the perpetrator of the alleged crime. In this 

sense, the judge and the jury may come to differing conclusions 

regarding the reliability of an admitted eyewitness 

identification. See Cabinatan, 132 Hawaiʻi at 77, 319 P.3d at 

1085 (“[A] trial court may determine that a suggestive show-up 

identification is sufficiently reliable to be admissible. 

However, the jury is not bound by that determination and is free 

to consider the issues of suggestiveness and reliability in 

determining whether to credit the identification.”); see also, 

Ramirez, 817 P.2d at 778-79 (discussing overlapping but distinct 

roles of the judge and jury in determining whether proffered 

eyewitness identification is reliable). By the same token, a 

judge in a bench trial who receives evidence of a suggestive 

eyewitness identification should consider relevant factors to 

evaluate its reliability in determining whether the 

identification should be credited or discredited. 
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Finally, we note that factors affecting reliability are not 

set in stone. Reliability is a totality of the circumstances 

determination that can encompass more than the factors that are 

included in our standard instructions or discussed in this 

opinion. See State v. Kazanas, 138 Hawaiʻi 23, 39, 375 P.3d 

1261, 1277 (2016) (citations omitted) (viewing a “‘totality of 

the circumstances’ review as sweeping in any circumstance, 

without limitation, for the court’s consideration.”). The 

understanding of factors affecting reliability, including 

suggestiveness, continues to evolve based on emerging empirical 

research. Therefore, it is also possible that some of the 

factors currently contained in our instructions could be amended 

or deleted.23 Courts should also consider credible evidence

presented by the parties regarding the reliability of a 

particular identification based on scientifically-supported 

reliability factors. See Gomes, 22 N.E.3d at 918 (noting that 

provisional jury instructions were not intended to preclude 

expert testimony, which may “be important to elaborate on the 

generally accepted [reliability] principles in a model 

instruction and to explain how other variables relevant to the 

particular case can affect the accuracy of the 

identification.”); see also, Clopten, 223 P.3d 1103, 1108-15 

 

23 See, e.g., the discussions regarding the “witness certainty” factor in 

notes 15, 20, and 22, supra.
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(discussing expert testimony as an effective means of assisting 

jurors with determining eyewitness identification reliability).

V. Conclusion

As explained above, however, the circuit court did not err 

in finding Laraway’s show-up identification reliable under the 

Padilla test in place at the time, and therefore did not err in 

denying Kaneaiakala’s motion to suppress. Accordingly, the 

ICA’s November 24, 2017 Judgment on Appeal, filed pursuant to 

its November 7, 2017 SDO, is affirmed. 

Michael J. Park /s/ Mark E. Recktenwald

for petitioner

/s/ Paula A. Nakayama

Loren J. Thomas

for respondents /s/ Sabrina S. McKenna 

/s/ Richard W. Pollack

/s/ Michael D. Wilson