When should counsel avoid requesting eyewitness identification instructions? State v. Hunter Explained

In State v. Hunter, the Utah Supreme Court addressed when defense counsel’s failure to request a Long instruction on eyewitness identification reliability constitutes ineffective assistance of counsel.

Background and facts: Police surveillance officers observed a suspected drug transaction from over 100 yards away using binoculars. They watched a white male approach a Black male and allegedly exchange cash for methamphetamine. The surveillance officers then directed takedown officers to arrest the Black male, identified as Hunter, based on his clothing description. Hunter’s counsel argued mistaken identity at trial but did not request a Long instruction cautioning the jury about eyewitness identification reliability.

Key legal issues: The case presented two main issues: (1) whether Long instructions apply only to “memory-based” identifications rather than “real-time” identifications, and (2) whether counsel’s failure to request such an instruction constituted ineffective assistance of counsel under the Strickland standard.

Court’s analysis and holding: The Utah Supreme Court vacated the court of appeals’ holding that Long instructions apply only to memory-based identifications. The court clarified that Long’s concerns about the “memory process” encompass all stages, including initial acquisition of information, not just long-term memory recall. However, the court affirmed Hunter’s conviction, finding that reasonable counsel could conclude a Long instruction might backfire by highlighting that the officers’ identification was actually quite reliable under Long factors – they had good lighting, unobstructed views, used binoculars, and observed from a secure location specifically to watch for drug activity.

Practice implications: This decision reminds practitioners that requesting jury instructions is a strategic decision requiring careful analysis. While Long instructions can help highlight weaknesses in eyewitness testimony, they may also draw attention to strengths in the prosecution’s identification evidence. Defense counsel should evaluate whether the Long factors favor or hurt their client’s case before automatically requesting such instructions in identification cases.