MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2016 ME 135 Docket: And

- 15

- 147 Argued: March	1,	2016 Decided: August	16 ,	2016

Panel: SAU FLEY,	C.J.,	and	ALEXANDER, MEAD ,	GORMAN, JABAR, HJELM, and HUMPHREY, JJ.



## STATE	OF	MAINE

v.

ALI	M.	MAHMOUD

MEAD ,	J.

[¶1]	 	 Ali	 M.	 Mahmoud	 appeals	 from	 a	 judgment	 of	 conviction	 of	 one

count	 of	 assault	 (Class	 D), 17

- A	 M.R.S.	 § 207(1)(A) (2015),	 entered	 by	 the

Superior Court	(Androscoggin	County, Warren,	J. )	after	a	jury	trial. On appeal,

Mahmoud	 contends	 that	 the	 court	 committed	 prejudicial	 error	 by	 failing	 to

give	 his	 proposed	 jury	 instructio ns	 on	 eyewitness	 identification .	 	We	 affirm

the	judgment.

I.		BACKGROUND

[¶2 ] Viewed	 in	 the	 light	 most	 favorable	 to	 the	 State,	 the	 record

establishes	the	 following	 facts. State	v.	Cote ,	2015	ME	78,	¶	2,	118	A.3d 805.

On July	22, 2013,	 the	 victim,	a	 tow

- truck	driver,	and	his	 friend	were	looking

for	illegally	parked	cars	in	Lewiston .		Around	11	p.m.,	the	victim	began	loading

### 2



## an	illegall y	 parked	 car	 onto	 his	 tow	 truck when	 the	 car’s	 owner	 returned	 to

the	car	and	a	verbal	confrontation	arose.		Multiple	people	in	the	neighboring

area	gathered	ar ound,	including	Mahmoud.		To	assist	with a language	barrier

between	 the	 victim	 and	 the	 car’s	 owner,	Mahmoud	 acted	 as	 a	 translator	 for

about	 five	 minutes	 to	 facilitate	 a	 discussion	 about	 whether	 the	 “drop	 fee”

would	be	reduced.		After	the	confrontation	began	to	escalate,	the	victim	asked

his	 friend to	 call	 9

- 1

- 1.	 	 Mahmoud	 then	 attempted	 to	 punch	 the	 victim	 but

missed,	and	the	victim	grabbed	a	six

- foot

- long	metallic	pole	to	defend	himself,

at	 which	 point	 Mahmoud	 walked	 away.	 	 The	 victim	 bent	 down	 to	 finish

affixing	the	tow	dolly	to	the	vehicle	when	M ahmoud	returned	and	kicked	the

victim	 in	 the	 face,	 fracturing	 his	 eye	 socket.	 	 The	 victim	 stood	 up	 and	 saw

Mahmoud	standing	nearby	“ready	to	fight.”

[¶3 ]		Immediately	thereafter,	police	approached	the	area	and	Mahmoud

ran	 a	 short	 distance	 away.	 	 Several	 po lice	 officers	 arrived	 at	 the	 scene	 and

spoke	with	the	victim,	who	described	Mahmoud	as	a	tall,	Soma li	man	wearing

an	 orange	 hat,	 a gray	 shirt,	 and	 gray	 shorts.	 	 The	 victim	 then	 pointed	 to

Mahmoud,	who	at	 that	 time	was	standing	outside	a	building	a	short	di stance

away.		Contemporaneous	with	the	victim’s	identification,	a	bystander	gave	the

same	description	of	the	suspect	to	a	different	officer	and	also	gestured	toward

### 3



## Mahmoud.	 	 As	 the	 o fficers	 approached	 Mahmoud,	 he start ed	 taking	 off

running and	ran	out	of sight	in to	a	nearby	apartment	building.

[¶4 ]		Two	officers	gave	chase,	and	upon	entering	the	apartment	building

the	officers	heard	someone	upstairs	say	something	to	the	effect	of	“[w]ho are

you,	I don’t	know	you	.	.	.	[g]et	out	of	my	apartment	.	.	.	I’m	no t	letting	you	in.”

The	 police	 then	 encountered	 Mahmoud	 descending	 the	 stairs.	 	 Notably,

Mahmoud	was	no	longer	wearing	an	orange	hat	and	had	some	facial	hair

— an

attribute that	 the	 victim	and	 the	bystander	had	not	mentioned	in	describing

the	 assailant. Mahmoud	 did,	 however,	 match	 the	 description	 in	 all	 other

respects,	 and	 both	 police	 officers	 later	 identified	 Mahmoud	 as	 the	 same

person	that	had	run	away	from	them	into	the	apartment	building.		Mahmoud

was	 arrested,	 and	 while	 being	 taken	into	 custody	 spont aneously	 said	 to	 the

o fficers,	“I didn’t	punch	him.”

[¶5 ]		The	officers	escorted	Mahmoud	out	of	the	apartment	building	to	a

police	 cruiser	 that	 was	 parked	 near	 the	 victim	 and	 his	 friend.	 	 As	 officers

approached	 the	 cruiser	with	Mahmoud	in	 custody,	 the	 vict im	 and	 his	 friend

each	identified	Mahmoud	as	the	assailant.		At	trial	the	victim’s	friend	testified

that	she	identified	Mahmoud	after	being	asked	by	a	police	officer	whether	he

was	the	assailant,	but	an	officer	testified	to	the	contrary,	saying,	“I	did	not ask

### 4



## [the	 victim	 or	 his	 friend]	 if	 that	 was	 the	 subject.	 	 They	 both	 without	 being

asked	 identified	 [Mahmoud]	 as	 the	 subject.”	 	 No	 identification	 procedures,

such	as	a	lineup,	were	conducted	after	the	positi ve	identifications	that	night.

II.		PROCEDURAL	HIS TORY

[¶6 ]	 	 In	 August	 2014,	 Mahmoud	 was	 charged	 by	 complaint	 with	 one

count	 of	 refusing	 to	 submit	 to	 arrest	 (Class	 D), 17

- A	 M.R.S.	 § 751

- B(1)(B)

(2015),	and	one	count	of	assault	(Class	D), 17

- A	M.R.S.	§ 207(1)(A) .		The	court

held	a	jury	trial on	February	1 7

− 18 ,	2015.		At	no	point	either	before	or	during

the	 trial	 did	 Mahmoud	 seek	 to	 exclude	 his	 identification	 by	 any	 of	 the

witnesses.

[¶7 ]		At	trial,	Mahmoud’s	proposed jury	instructions included,	“You	may

consider	 the	 following	 in	 evaluating	 the	 accuracy	 of	 an	 eyewitness

identification:	risks	of	cross

- racial	identification,	risks	of	identification	under

stress,	 at	 best,	 weak	 correlation	 between	 the	 witness’s	 confidence	 and

accuracy	 of	 th e	 identification,	 [and]	 the	 influence	 of	 any	 suggestive

identification	circumstances.”

[¶8 ]		The	State	opposed	Mahmoud’s	proposed	instructions,	contending

that	jury	instructions	on	eyewitness	identification	are	improper	as	a	matter	of

law	 based	 on State	 v. Lavoie ,	 561	 A.2d	 1021	 (Me. 1989),	 discussed infra

,

### 5



## among	other	precedents.		The	court	rejected	 the	State’s	argument,	reasoning

that	courts	“generally	seem	 to	be	evolving	 toward	at	least	 telling	jurors	 they

ought	 to	 consider	 carefully	 eye	 witness	 testimony and	 [listing]	 some	 of	 the

factors	 that	 they	might	want	 to	consider.”		Although	 the	court	agreed	 to	give

an	instruction	on	eyewitness	identification,	the	court	did	not	give	Mahmoud’s

proposed	instructions	verbatim,	stating

,
[B]ut	 I’m	not	going	 to	go	as	 far as	 the [proposed] instruction	 for some	 of	 the	 reasons	 mentioned	 in	 Justice	 Alexander’s commentary [ see Alexander, Maine	 Jury	 Instruction	 Manual § 6

- 22A	 at	 6

- 38

− 6

- 42 (2016 ed.)] and for	 some	 other	 reasons, which	is	 I	don’t	 think	 I	should	be	mentioning	 to	a	jury

. . . studies that	 are	 not	 before	 the	 ju ry	 and	 are	 not	 subject	 to

cross

- examination	and	that	I	actually	haven’t	conducted	and	can’t vouch	for	their	accuracy.		I	don’t	think	I should	be	announcing	as	a matter	 of	judicial	 notice	 that

. . . certain	 sociolog[ical]	 studies	 are correct	or	are	worth	considering.

[¶9 ]	 	 The	 court	 gave	 the	 following	 jury	 instruction,	 in	 pertine nt

part:

[Y]ou	 should	 carefully	 consider	 any	 testimony	 rela ting	 to	 eye witness	 identification.	 	 For	 instance,	 you	 should	 consider	 the following	 in	 determining	 the	 accuracy	 of any	 eye	 witness identification[:] wh ether	 the	 accuracy	 of	 an eye	 witness identification	 may	 be	 affected	 by	 the	 fact	 that	 the	 person identifi ed	is	of	a	different	race,	which	may	make	it	more	difficult to	identify	an	individual,	whether	 the	accuracy	of	an	eye	witness identification	may	be	affected	by	 the	circumstances	under	which it	 was	 made,	 how	 much	 weight,	 if	 any,	 you	 should	 give	 to	 the

amoun t	of	certainty	expressed	by	a	witness	given	that	there	may not	 be	 a	 correlation	 between	 the	 reliability	 of	 an	 eye	 witness

### 6



## identification	 and	 the	 amount	 of	 certainty	 expressed	 by	 the witness	in	making	 that	identification.	 	 It’s	 up	 to	 you	 to	 consider those	 i ssues	 and	 evaluate	 whether	 those	 affect	 any	 eye	 witness identification.

The	 jury	 found	 Mahmoud	 not	 guilty	 of	 refusing	 to	 submit	 to	 arrest,	 but

delivered	 a	 verdict	 of	 guilty	 on	 the	 charge	 of	 assault.	 	 The	 co urt	 sentenced

Mahmoud	to	ninety days’	imprisonmen t,	with	all	but	twenty	days	suspended,

followed	by	one	 year	of	administrative	 release	and	a	 $300	 fine. This	appeal

followed.

III.		DISCUSSION

[¶1 0 ]		“We	review	jury	instructions	as	a	whole	for	prejudicial	error,	and

to	 ensure	 that	 they	 informed	 the	 jury	 correctly	 and	 fairly	 in	 all	 necessary

respects	 of	 the	 governing	 law.” State	 v.	 Tucker ,	 2015	 ME	 68,	 ¶	 11,

117 A.3d 595	 (quotation	marks	 omitted). “We	will	 vacate	a	judgment	 based

on	a	denied	 request	 for	a	jury	instruction	if	 the	appellant	demonstrates	 that

the	 requested	instruction	 (1)	 stated	 the	law	 correctly;	 (2)	was	generated	 by

the	 evidence;	 (3)	 was	 not	 misleading	 or	 confusing; 1 

## and	 (4)	 was	 not

sufficiently	 covered	 in	 the	 instructions	 the	 court	 gave.” State	 v.	 Hanaman

,
2012	ME	 40,	¶ 16,	 38	A.3d	 1278.	 	Additionally,	a	 “court’s	 refusal	 to	give	 the

requested	instruction	must	have	been	prejudicial	to	the	requesting	party.” Id.

1 The	State	concedes	 that	 the	requested	jury	instruction	was	not	misleading	or	confusing,	and we	do	not	discuss this	issue	further.

### 7



## A. Whether	the Reque sted Instruction	Stated	the	Law	Correctly

[¶1 1 ]	 	 Pursuant	 to	 the	 first	 prong	 of	 the Hanaman analysis,	 the	 first

question	 is	 whether	 Mahmoud’s	 proposed	 jury	 instructions	 stated	 the	 law

correctly. Id .	 	 The	 State	 contends	 that	 Mahmoud’s	 proposed	 instructions

stated	the	law	incorrectly	because,	inter	alia,	jury	instructions	on	eyewitness

identifications	would	amount	to	a	departure	from	precedent.

[¶1 2 ] We	 last	 considered	 the	 propriety	 of jury	 instructions	 on

eyewitness	 identification	 in State	 v.	 Lavoie ,	 561	 A .2d	 1021	 (Me. 1989).	 	 In

Lavoie ,	 we	 concluded	 that	 jury	 instructions	 regarding	 eyewitness

identification	are	improper	as	a	matter	of	law	because	they	have	the	effect	of

“singl[ing]	 out	 the	 testimony	 of	 an	 eyewitness	 for	 special	 scrutiny.” Id. at

1023; see State	v.	McDonough ,	507 A.2d	573,	57 5

- 7 6	 (Me. 1986)	 (concluding

that	 the	 trial	 court	 properly	 rejected	 the	 defendant’s	 proposed	 jury

instruction	because	it	singled	out	testimony	for	“special	scrutiny”).

[¶1 3 ]	 	 Over	 the	 course	 of	 the	 nearly	 thirty	 years	 si nce	 our	 holding	 in

Lavoie ,	 a significant body	 of	 scientific	 research	 has	 emerged	 concerning	 the

mechanics	of	human	memory	and	the	reliability	of	eyewitness	identifications

generally. 2 

## These	extensive	s cientific	studies	have	provided new	insights	into

2 Courts	across	the	country	have	recently	acknowledged	and	relied	on	the	tremendous	growth in	the	body	of	scientific	research	in	this	area. See,	e.g.

, State v. Lawson

, 291 P.3d 673, 685 (Or. 2012)

### 8



## the fallibility	 of	 eyewitness	 identifications,	 and	 as	 a	 result	 many	 state	 and

federal	 courts	 now	 instruct	 jurors	 accordingly. 3 

## In	 light	 of	 these	 scientific

(“ Since 1979

. . . there have been more than 2,000 scientific studies conducted on the reliability of eyewitness identification.”); State v. Cabagbag

, 277 P.3d 1027, 1035 (Haw. 2012) (“Since the first

cases addressing the reliability of eyewitness testimony were decided in the 1970s, a robust body of research in the area of eyewitness identification has emerged.”); State v. Henderson

, 27 A.3d 872, 877 (N.J. 2011) (“In the thirty

- four years since the United States Supreme Court announced a test for the admissi on of eyewitness identification evidence

. . . a vast body of scientific research about human memory has emerged. That body of work casts doubt on some commonly held views relating to memory.”); see also State v. Guilbert

, 49 A.3d 705, 720 & n.9 (Conn. 20 12) (c ollecting studies reflecting “a near perfect scientific consensus” that eyewitness identifications are potentially unreliable ); Mass. Su preme Judicial Court Study Grp. on Eyewitness Evidence, Report and Recommendations to the Justices ( 2013) (Study G roup Report), [ https://perma.cc/WY4M

- YNZN ].

3 In Perry	 v.	 New	 Hampshire

, 565	 U.S. 228 (2012),	 the United	 States Supreme	 Court cited numerous	 examples	 of jury	 instructions	 on	 eyewitness	 testimony adopted	 by	 state	 and	 federal
courts:

See Model	 Crim.	 Jury	 Instr.	 No.	 4.15	 (CA3	 2009); United	 States v. Holley

, 502 F.2d 273,	 277

- 278	 (CA4	 1974);	 Pattern	 Crim.	 Jury	 Instr.	No.	 1.29	 (CA5	 2001); Pattern	 Crim.	 Jury	 Instr.	 No.	 7.11	 (CA6	 2011);	 Fed. Crim.	 Jury	 Instr.	 No.	 3.08 (CA7 1999);	 Model	 Crim.	 J ury	 Instr.	 for	 the	 District	 Courts	 No.	 4.08	 (CA8	 201 1); Model	 Crim.	 Jury	 Instr.	 No. 4.11	 (CA9	 2010);	 Crim.	 Pat tern	 Jury	 Instr.	 No.	 1.29 (CA10 2011);	 Pattern	 Jury	 Instr.	 (Crim.	 Cases)	 Spec. Instr.	 No.	 3	 (CA11	 2010); Rev. Ariz. Jury	Instr.,	Crim.,	No.	39	(3d ed. 2008);	1	Judicial	Council	of	Cal.	Crim.	Jury Instr.	No. 315	(Summer	2011);	Conn. Crim.	Jury	Instr.	2.6

- 4	(2007);	2	Ga.	Suggested Patter n	 Jury	 Instr.	 (Crim.	Cases)	No. 1.35.10	 (4th	ed.	2011);	 Ill.	Pattern	 Jury	 Instr., Crim.,	 No.	 3.15	 (Supp.	 2011); Pattern Instr.,	 Kan.	 3d, Crim.,	 No.	 52.20	 (2011); 1 Md. Crim.	 Jury	 Instr.	 &	 Commentary	 §§	 2.56,	 2.57(A),	 2.57(B)	 (3d ed.	 2009	 and Supp.	 2010);	 Mass. Crim.	 Model	 Jury	 Instr.	 No.	 9.160	 (2009);	 10	 Minn.	 Jury	 Instr. Guides,	 Crim.,	 No.	 3.19	 (Supp.	 2006);	 N.	 H. Crim.	 Jur y	 Instr.	 No.	 3.06	 (1985); N. Y. Crim.	 Jury	 Instr.	 “Identification

-- One	 Witness”	 and	 “Identi fication

-- Witness Plus”	 (2d	 ed. 2011);	 Okla.	 Uniform	 Jury	 Instr.,	 Crim .,	 No.	 9

- 19	 (Supp.	 2000); 1 Pa. Suggested Standard	 Crim.	 Jury	 Instr.	 No. 4.07B	 (2d	 ed. 2010);	 Te nn. Pattern Jury	 Instr.,	 Crim.,	 No. 42.05	 (15th	 ed.	 2011);	 Utah	 Model	 Jury	 Instr.	 C R404 (2d ed. 2010);	Model	Instructions	from	the	Vt.	Crim.	Jury	Instr.	Comm.	Nos.	CR5

- 601, CR5

- 605	(2003);	W.	Va.	Crim .	Jury	Instr.	No.	5.05	(6 th ed. 2003).

Id. at 246 n.7.		The	widespread	judicial	endorsement	of	jury	instructions	on	eyewitness	reliability reflects	 the	 improved	 scientific	 understanding	 in	 this	 field. See, e.g. , Commonwealth	 v.	 Gomes

, 22 N.E.3d	 897,	 900	 (Mass. 2015)	 (“[W]e	 conclude	 that	 there	 are	 sc ientific	 principles	 regarding eyewitness	 identification	 that	 are	 ‘so	 generally	 accepted’	 that	 it	 is	 appropriate	 in	 the	 future	 to instruct	juries	regarding	these	principles	so	that	they	may	apply	the	principles	in	their	evaluation	of eyewitness	 identificati on	 evidence.”), abrogated	 by	 Commonwealth	 v.	 Bastaldo ,	 32	 N.E.3d	 873

### 9



## studies,	some	courts	have	expressed	a	preference	for	jury	instruc tions	rather

than	 expert	 testim ony	 add ressing	 the	 eyewitness	 identification	 issue.

For example,	in United	 States	 v.	Jones

, the	 First	 Circuit	 concluded	 that “ [t] he

judge	was	 fully	entitled	to	conclude	that	this	general	information [pertaining

to	eyewitness	 reliability] could	 be	more	 reliably and	efficiently	 conveyed	 by

instructions	 rather	 than	 through	 dueling	 experts. ” 689 F.3d	 12 ,	 20

(1 st Cir. 2012)

.
[¶1 4 ] T he	New	 Jersey	Supreme	Court	and	the	Massachusetts	Supreme

Judicial	Court,	among	others,	have	conducted comprehensive	analyses	of	 the

science	 relating	 to	 eyewitness	 reliability. 4 

## Embedded in	 this	 research

(Mass.	2015)	(building	on Gomes by	specifying	when	evidence	warrants	a	cross

- racial	identification instruction); Cabagbag

, 277 P.3d at 1038 (“[T]he impetus for a change in our approach li es in the empirical research that reveals that people generally do not understand all of the factors that affect the reliability of an eyewitness identification.”); Henderson

, 27 A.3d at 878, 910 (concluding that the then

- current “ standard for assessing eye witness identification evidence

. . . overstate[d] the jury’s inherent ability to evaluate evidence offered by eyewitnesses who honestly believe their testimony is accurate,” and stating that studies demonstrate that “laypersons are largely unfamiliar w ith scientific findings and often hold beliefs to the contrary” (quotation marks omitted)). The use of these instructions is consistent with the Supreme Court’s recent endorsement of such instructions

. See Perry

, 565	 U.S. at	 233 (“When	 no	 improper	 law	 en forcement	 activity	 is	 involved,	 we	 hold,	 it suffices	 to	 test	 reliability	 through

. . . jury	 instructions on	 both	 the	 fallibility	 of eyewitness identification and	the	requirement	that	guilt	be	proved	beyond	a	reasonable	doubt. ”).

4 In	2009,	the	New	Jersey	Supreme	Court	appointed	a	Special	Master	to	evaluate	and	analyze	the scientific	 evidence	 relating	 to	 eyewitness	 identifications. Henderson ,	 27	 A.3d	 at	 877 ,	 884

. After scrutinizing the testimony of seven experts resulting in over 2,000 pages of transcripts, and reviewing hundreds of scientific studies, the Special Master concluded that “[t]he science abundantly demonstrates the many vagaries of memory en coding, storage, and retrieval; the malleability of memory; the contaminating effects of extrinsic information; the influence of police interview techniques and identification procedures; and the many other factors that bear on the reliability of eyewitness identifications.” Id. at 877, 916 (alteration in original) (quotation marks omitted)

. The research presented to the Special Master in Henderson included “more than

### 10



## concerning	 eyewitness	 reliability	 is	 the	 generally	 accepted	 notion	 that	 a

witness	may	have	increased	difficulty	identifying	persons	of	another	race. 5 

## In

light	of	the	voluminous	body	o f	scientific	research	that	has	emerged	regarding

the	reliability	of	eyewitness	identification,	and	the	subsequent	evolving	trend

among	 both	 state	 and	 federal	 courts	 to	 instruct	 juries	 on	 this	 matter, we

twenty

- five meta

- analyses,” id. at 893, and was described as “represent[ing] the gold standard in
terms of the applicability of social science research to the law,” i d. at 916 (quotation marks omitted). The New Jersey Supreme Court detailed the findings of the Special Master, including a thorough discussion of the mechanics of human memory and how a host of system and estimator variables can adversely affect memory. Id. at 892

- 912

. As a result of the Special Master’s findings, the court revised its framework for evaluating eyewitness testimony by instructing courts to

“ develop and use enhanced jury charges .” Id. at 919.

In	2011,	the	Massachusetts	Supreme	 Judicial	Court	convened	the	Supreme	 Judicial	Court	Study Group	 on	 Eyewitness	 Evidence	 (the	 Study	 Group). See Gomes ,	 22	 N.E.3d	 at	 900 &	 n.3 ; Commonwealth	 v.	 Walker ,	 953 N.E.2d	 195,	 208	 n.16	 (Mass. 2011).	 	 The	 Study	 Group was	 tasked with	determining	“whether	existing	model	jury	instructions	provide	adequate	guidance	to	juries	in evaluating	eyewitness	testimony.” See	Walker ,	953	N.E.2d	at	208	n.16.		In	assessing	the	state	of	the science,	 the Study	 Group	 relied	 in	 part	 on	 th e	 Report	 of	 the	 Special	 Master	 to	 the	 New	 Jersey Supreme	Court	in Henderson

, see Study Group Report at 15 n.17, and additionally conducted its own extensive survey of the available scientific research, see Study Group Report at 15

- 32. In	2013,	th e Study Group	 issued	 a	 Report	 and Recommendation	 concluding	 that	 the	 Massachusetts	 jury instructions	 on	 eyewitness	 identification	 were	 inadequate,	 among	 other	 model	 jury	 instructions that	 were	 also based	 on the	 model	 jury	 instructions	 set	 forth	 in United States	 v. Telfaire

, 469 F.2d 552 ,	558

- 59 (D.C. Cir.	1972). See Study Group Report at 3

- 4 & n.4

, 51

- 58, 117

- 146.

5 We	 have	 not	 previously	addressed	 the	issue	 of	 cross

- racial	identification. See	State	 v.	Kelly

, 2000	 ME 107,	 ¶	 16,	 752	 A.2d	 188.	 	 The	 current	 state of	 the	 science	 strongly	 suggests	 that

cross

- racial identifications	 tend	 to	 be	 less	 accurate	 than	 same

- race	 identifications. See,	 e.g.

, Bastaldo ,	 32 N.E.3d	 at	 880

- 81 (“The	 existence	 of	 the	 ‘cross

- race	 effect’	 (CRE)

— that	 people	 are generally	less	accurate	at	identifying	members	of	other	races	than	they	are	at	identifying	members of	their	own	race

— has	reached	a	near	consensus	in	the relevant	scientific	community	and	has been recognized	 by	 courts and	 scholars alike. We	 remain	 convinced	 that	 jurors	 who	 are	 as ked	 to evaluate	 the	 accuracy	 of an	 identification	 should	 be informed	 of	 the	 CRE.”	 (footnote s omitted)); Lawson

, 291 P.3d at 703 (“ Studies also indicate that witnesses are significantly better at identifying members of their own race than those of other races.”); Henderson

, 27 A.3d at 907 (“A meta

- analysis

. . . involving thirty

- nine studies a nd nearly 5,000 identifications[] confirmed the [New Jersey Supreme] Court’s prior finding ” that a witness may have more difficulty ident ifying members of another race ).

### 11



## conclude	 that	 it	 is	 permissible,	 where	 relevant,	 to	 i nstruct	 jurors	 on	 the

reliability	 of	 eyewitness	 identification. 6 

## We	 do	 not,	 however,	 conclude	 that

the	 use	 of	 an	 eyewitness	 identification	 instruction	 is required in	 every	 case

involving an	 eyewitness	 identification. For	 example,	 the	 eyewitness

identific ation	instruction	would	not	ordinarily	be	generated	in	instances	when

the	identified	person	is	already	known	to	the	witness.

[¶1 5 ]		Prior	to	our	decision	today,	the	jury	instructions	in	this	case,	both

as	 proposed	 and	 as	 given,	 did	 not	 reflect	 our	 previous jurisprudence.

However,	 as	 the	 trial	 court	 explicitly	 reasoned,	 the	 instructions	 were

consistent	with	 the	evolution	 of	 the	law	 regarding	eyewitness	identification.

Thus,	 contrary	 to	 the	 State’s	 contention,	 the	 jury	instructions	 that	 the	 court

gave	are	a correct	statement	of	the	law	as	we	con firm	it	today.

B. Whether	the Requested Instruction Was Generated	by	the	Evidence

[¶1 6 ]		Having	concluded	that	jury	instructions	on	eyewitness	reliability

are	 permissible,	 we	 next	 decide	 whether	 the requested instruction	 was

generate d	 by	 the	 evidence	 in	 this	 case. Hanaman ,	 2012	 ME	 40,	 ¶	 16,

38 A.3d 1278.		Mahmoud	sought	an	instruction	on	four	distinct	issues	relating

to	 eyewitness	 reliabili ty:	 (1) suggestive	 identification	 circumstances;

6 To the	extent	that	our	decision	today	is	in	conflict	with	our	previous	precedents ,	this	decision overrules	them.

### 12



## (2) cross

- racial	 ident ification;	 (3)	 the	 stress	 experienced	 by	 the	 person

making	the	identification;	and	(4)	the	uncertain	relationship	between	witness

confidence	 and	 accuracy.	 	 The	 State	 concedes	 on	 appeal	 that	 the	 evidence

generated	three	of	the	issues,	contesting	only	whethe r	the	evidence	presented

at	 trial	 provided	 a	 basis	 for	 an	 instruction	 as	 to	 suggestive	 identification

circumstances,	which	the	court	declined	to	give.

[¶1 7 ]	 	Mahmoud	 contends	 that an instruction	was	warranted	 because

he	was	 “pa raded”	before	 the	victim	and the	victim’s friend	and	was	 the	only

suspect	 shown	 to	 them.	 	 We	 note	 that	 there	 was	 no	 challenge	 pursuant	 to

Stovall	 v.	 Denno ,	 388	 U.S. 293	 (1967)

, or	 its	 progeny 7 

## seeking	 to	 exclude

identification	 evidence	 at	 trial,	 and	 therefore	 the	 scope	 of	 our	 review	 is

limited	 to	whether	a	jury	instruction	on	suggestive	identification	procedures

was	raised	by	the	evidence	here.

7 In Stovall	v.	Denno ,	388	U.S.	293,	301

- 02	(1967),	the	Court	held	that	a	defendant	may	claim	that

“ the	 confrontation	 conducted

. . . was	 so	 unnecessarily	 suggestive	 and	 conducive	 to	 irreparable mistaken	identification	 that	he	was	denied	due	process	of	law. ” See Neil	v.	Biggers ,	409	U.S.	188

, 196 (1972); Coleman	v.	Alabama ,	399	U.S.	1 ,	4 (1970); Foster	v.	California ,	394	U.S. 440

, 442 (1969); Simmons	v.	United States ,	390	U.S.	377 ,	383 (1968). The	determination	of	whether	an	identification was	 “unnecessarily	 suggestive,”	 the	 Court	 explained,	 is	 based	 on	 a	 totality	 of	 the	 circumstances, Stovall ,	388	U.S.	at	302,	and	among the	factors	to	be	considered	are “the	opportunity	of	the	witness to	view	 th e	criminal	at	 the	 time	of	 the	crime,	 the	witness’	degree	of	attention,	 the	accuracy	of	 the witness’	prior	description	of	the	criminal,	the	level	of	certainty	demonstrated	by	the	witness	at	the confrontation,	and	the	length	of	time between	the	crime	and	the confrontation,” Biggers ,	409	U.S.	at 199

- 200.

### 13



## [¶1 8 ]	 	 Contrary	 to	 Mahmoud’s	 contention,	 the	 evide nce	 presented	 at

trial	 did	 not	 generate	 an	 instruction	 as	 to	 suggestive	 identification

circumstances. Mahmoud	 was	 first	 identified	 to	 the	 police	 by	 the	 victim

shortly	after	 the	police	arrived	at	 the	scene	and before	Mahmoud	 fled	into	a

nearby	apartment	bu ilding. Although	there	is	no	dispute	that	Mahmoud	was

brought	 near	 the	 victim	and	 his	 friend	as	 officers	were	escorting	 him	 to	 the

police	 cruiser,	 there	 is	 no	 evidence	 that	 the	 officers	 conducted	 a	 show

- up

procedure.	 	 The	 only	 evidence	 in	 the	 record	 poten tially	 establishing	 a

suggestive	identification	practice	was	a	statement	by	 the	 victim’s	 friend	 that

the	 police	 had	 asked	 her	 to	 identify	 the	 assailant.	 	 The	 friend’s	 testimony,

however,	conflicted	with	the	officer’s	earlier	testimony	that	he	had	not	asked

any	witness	 to	identify	 the	 s uspect. Despite	 the	 conflicting	 testimony,	 there

was	 no	 follow

- up	 questioning	 or	 cross

- examination	 relating	 to	 the

identification	 procedure.	 	 Additionally,	 Mahmoud	 concedes	 that	 he	 did	 not

attempt	to	exclude	the	identificatio ns	at	any	point	before	or	during	trial. 8 

## In

8 Even	if	such	a	challenge	had	been	made,	it	is	unlikely	that	the	identification	would	have	been excluded	 because	 the	 accuracy	 of	 the	 identification	 is	 supported	 by	 indicia	 of	 reliability. See Biggers ,	409 U.S.	at 199

- 200.		The	victim	had	ample	time	to	observe	Mahmoud	because	Mahmoud acted	as	a	 translator	between	 the	victim	and	 the	car	owner	 for	more	 than	 five	minutes.		After	 the opportunity	 to	 observe	 his	 assailant,	 the	 victim	 offered	 a	 description	 of	 Mahmo ud	 that	 was corroborated	 by	 his	 friend’s	 9

- 1

- 1	 call	 offering	 the	 same	 description,	 which	 was	 further corroborated	 by	 the	 bystander’s	 description	 of	 Mahmoud	 to	 another	 officer.	 	 The	 victim	 also identified	Mahmoud	prior	 to	any	alleged	 suggestive	 circumstance s,	and	 two	 officers	 testified	 that the	 man	 apprehended	 inside	 the	 building

— that	 is,	 Mahmoud

— was	 the	 same	 man	 the	 victim

### 14



## this light,	 we	 conclude	 that the	 evidence	 did	 not	 generate	 an	instruction	 on

suggestive	identification	circumstances. See	supra n.8

.

C. Whether	 the	 Requested	 Instruction Was	 Sufficiently Covered	 by	 the

Instructions Given

[¶1 9 ] W e	turn	next	to	the	fourth	prong	of	the Hanaman analysis,	which

is	 whether	 the	 jury	 instruction s so ught	 were sufficiently	 covered	 by	 the

instructions	 actually	 given. Hanaman ,	 2012	 ME	 40,	 ¶	 16,	 38	 A.3d 1278

.
Mahmoud	sought	an	instruction	on	four	distinct	factors	relating	to	eyewitness

identification:	 (1)	 suggestive	 identification	 circumstances;	 (2) cross

- racial

identification;	(3)	stress;	and	(4)	 the	uncertain	relationship	between	witness

confidence	and	accura cy.		Mahmoud	does	not	challenge	the	sufficiency	of	the

cross

- racial	 identification	 instruction,	 and	 we	 have	 concluded	 that	 an

instruction	 concerning	 suggestive	 identification	 circumstances	 was	 not

generated	 by	 the	 evidence. We	 now	 address	 the	 two	 remainin g	 factors	 in

turn.

[¶20 ]	 	 Mahmoud’s	 requested	 instructions	 concerning	 the	 effects	 of

stress	 on	 the	 person	 making	 the	 identification	 and	 the	 minimal	 correlation

between	 that	 person’s	 confidence	in	making	 the	identification	 and	its	 actual

identified	 before	 the	 apprehension.	 	 Finally,	 the	 victim	 again	identified	 his	 assailant	imm ediately after	his	apprehension,	which	took	p lace very	shortly	after	the	initial	attack.

### 15



## accuracy	 were	 cover ed	 by	 the	 court’s	 instructions	 as	 given.	 	With	 regard	 to

stress,	Mahmoud	 proposed	 the	 following	instruction:	 “You	may	 consider	 the

following	in	evaluating	the	accuracy	of	an	eyewitness	identification

. . . risks	of

identification	 under	 stress.”	 	 The	 instru ction	 that	 the	 court	 gave	 stated	 that

“you	 should	 consider	 the	 following	 in determining	 the	 accuracy	 of an y

eye witness	 identification

. . . whether	 the	 accuracy	 of	 an	 eye	 witness

identification	may	be	affected	by	the	circumstances	under	which	it	was made.”

Although	 the	 court’s	 instruction	 did	 not	 use	 the	 word	 “stress,”	 its	 broad

statement	 that	 “an	 eye	 witness	 identification	 may	 be	 affected	 by	 the

circumstances	under	which	it	was	made”	encapsulates	 the	concept	 of	stress,

among	 myriad	 other	 factors.	 	 A t	 trial,	 the	 jury	 heard	 extensive	 testimony

about	 the	 significant	 injury	 to	 the	 victim’s	 eye	 shortly	 before	 he	 identified

Mahmoud,	and	photos	were	published	to	the	jury	depicting	the	injury.		Thus,

the	court’s	more	generalized	instruction	covered	the	conce pt	of	stress,	and	the

jury	could	have	readily	deduced	that	stress	was	among	the	factors	potentially

influencing	a	witness’s	identification	of	Mahmoud.

[¶ 2 1]		With	regard	to	accuracy,	Mahmoud’s	proposed	instruction	stated

that	 “[y]ou	 may	 consider	 the	 follow ing	 in	 evaluating	 the	 accuracy	 of	 an

eyewitness	identification	.	.	.	at	best,	weak	correlation	between	 the	witness’s

### 16



## confidence	and	accuracy	of	the	identification.”		The	instruction	that	the	court

gave	stated	that

you	should	consider	the	following	in	dete rmining	the	accuracy	of any	 eye	 witness	 identification	 .	 .	 .	 how	 much	 weight,	 if	 any,	 you should	 give	 to	 the	 amount	 of	 certainty	 expressed	 by	 a	 witness given	 that	 there	may	not	be	a	correlation	between	 the	 reliability of	 an	 eye	 witness	 identification	 and	 t he	 amount	 of	 certainty expressed	by	the	witness	in	making	that	identification.

[¶22 ]	 	 The	 court’s	 instruction	 sufficiently	 covered	 the	 proposed

instruction	 because,	 unlike	Mahmoud’s	 proposed	 “at	 best,	weak	 correlation”

language,	the	court’s	instruction	su ggested	that	there	could	be	no	correlation

at	all.		Because	the	jury	was	presented	with	the	possibility	that	there	may	be

no	 correlation	 between	 confidence	 and	 accuracy,	 the	 court’s	 instruction

sufficiently	covered	Mahmoud’s	proposed	instruction.

The	entry is:

Judgment	affirmed.

### 17



## On	the	briefs:

Jamesa	J.	Drake,	Esq.,	Drake	Law,	LLC,	Auburn,	for	appellant Ali	M.	Mahmoud

Lisa	Bogue,	Asst.	Dist.	Atty.,	and	Michael	Dumas,	Stud.	Atty., Prosecutorial	 District	 III,	 Auburn,	 for	 appellee	 State	 of Maine

At	oral	argument:

Jamesa	J.	Drake,	Esq., for	appellant	Ali	M.	Mahmoud

Michael	Dumas,	Stud.	Atty., for	appellee	State	of	Maine

Androscoggin	County	Superior	Court docket	number	CR

- 2014

- 858
F OR C LERK R EFERENCE O NLY