IN THE SUPREME COURT OF CALIFORNIA THE PEOPLE, Plaintiff and Respondent, v. DESIRAE LEE LEMCKE et al., Defendants and Appellants. S250108 Fourth Appellate District, Division Three G054241 Orange County Superior Court 14CF3596 May 27, 2021 Justice Groban authored the opinion of the Court, in which Chief Justice Cantil-Sakauye and Justices Corrigan, Liu, Cuéllar, Kruger, and Jenkins concurred. PEOPLE v. LEMCKE S250108 Opinion of the Court by Groban, J. Defendant Charles Henry Rudd was convicted of assault and robbery. The prosecution’s primary evidence at trial was the testimony of the victim, who identified Rudd as her assailant and confirmed that she had previously identified Rudd during a photographic lineup. The trial court provided the jury an instruction modeled on CALCRIM No. 315 that listed 15 factors it should consider when evaluating eyewitness identification evidence. One of those factors stated: “How certain was the witness when he or she made an identification?” Rudd argues that the certainty instruction violated his federal and state due process rights to a fair trial (see U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, §§ 7, 15) because empirical research has shown that a witness’s confidence in an identification is generally not a reliable indicator of accuracy. We reject Rudd’s due process claims. When considered in the context of the trial record as a whole, listing the witness’s level of certainty as one of 15 factors the jury should consider when evaluating identification testimony did not render Rudd’s trial fundamentally unfair. (See Salas v. Cortez (1979) 24 Cal.3d 22, 27 (Salas) [“The touchstone of due process is fundamental fairness”]; People v. Foster (2010) 50 Cal.4th 1301, 1335 (Foster) [in determining whether a jury instruction violated a defendant’s right to due process, the “ ‘instruction “may not be judged in artificial isolation,” but must be considered in the context of the instructions as a whole and the trial record’ ” 1 PEOPLE v. LEMCKE Opinion of the Court by Groban, J. (italics omitted)].) As we explained in a prior decision approving CALJIC No. 2.92’s similarly worded instruction on witness certainty, the instruction does not direct the jury that “certainty equals accuracy.” (People v. Sánchez (2016) 63 Cal.4th 411, 461– 463 (Sánchez); see People v. Johnson (1992) 3 Cal.4th 1183, 1231–1232 (Johnson) [approving CALJIC No. 2.92’s certainty instruction].) Although the language may prompt jurors to conclude that a confident identification is more likely to be accurate, Rudd was permitted to call an eyewitness identification expert who explained the limited circumstances when certainty and accuracy are positively correlated. Moreover, the court provided additional instructions directing the jury that it was required to consider the testimony of the expert witness, that the prosecution retained the burden to prove Rudd’s identity as the perpetrator beyond a reasonable doubt, and that witnesses sometimes make honest mistakes. Despite the absence of a constitutional violation, we nonetheless agree with amici curiae that a reevaluation of the certainty instruction is warranted. Contrary to widespread lay belief, there is now near unanimity in the empirical …
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