NMSC Raises Standards for Eyewitness Identification


The New Mexico Supreme Court has been making up for lost time in November. Today the Court released its third opinion of the month, State v. Martinez. Writing for a unanimous court, Chief Justice Michael Vigil affirmed the defendant’s conviction for two counts of first-degree murder on this direct appeal. The opinion creates a higher standard for eyewitness identification under the New Mexico constitution than under the federal constitution.


The facts of this case are straightforward. Two teenagers were discovered shot in their vehicle. The autopsy reports indicated that they had been shot by a person in the back seat of the car.

About a week later, one of the victims’ mother pointed investigators to a potential eyewitness who had seen a person walking away from the car at the approximate time of the murder. Police interviewed the witness. The witness claimed he was shown photos at that time.

A few days later, the police asked the witness to come to the sheriff’s office. The witness was shown an array of six pictures and asked if any of them were the man he had seen. The witness identified Defendant. Based on that identification, police obtained warrants for additional evidence, including Defendant’s cell phone location data and DNA evidence.

Prior to trial, Defendant sought to suppress the eyewitness identification, arguing that it was impermissibly suggestive. The court denied that motion. In addition, the State sought to admit evidence that Defendant had been involved in a prior shooting and that bullet casings from that shooting matched casings found in the car in this case. The court allowed the evidence to be admitted. Finally, the court excluded a statement by one of the victims’ sister that he had told her he stole money from a different person (thus suggesting that someone other than the Defendant had a motive to kill the victims).

A jury convicted Defendant of two counts of first-degree murder, and the court sentenced him to two consecutive life sentences. Due to the life sentences, Defendant appealed directly to the supreme court.


The most significant portion of this case is about the rules that govern the administration of an eyewitness photographic identification. Under the U.S. Constitution, the standard is set by Manson v. Brathwaite, 432 U.S. 98 (1977). Under Manson, courts apply a two-part test to determine the admissibility of eyewitness identification evidence, addressing first whether police identification procedures were “unnecessarily suggestive” and, if so, weighing specified factors in deciding whether the identification was nonetheless sufficiently reliable to satisfy federal due process requirements. Many states, including New Mexico, apply the Manson test.

No Violation of the Manson Rule Here

Manson is a two-part test; however, the second prong is not analyzed unless the first one fails. Here, Defendant was unable to show a violation of the first prong.

There appears to have been no real dispute that the photo array at the sheriff’s office was valid. Courts in New Mexico and elsewhere had upheld similar displays, and Defendant offered no evidence to so show that the sheriff’s office identification was improper.

Instead, Defendant concentrated on the alleged set of photos. The witness had claimed he was shown photos during his initial interview. The investigator, however, denied showing the witness photos at that time. Unfortunately for Defendant, his attorney did not adequately develop that argument at trial, and the Court dismissed it as unpreserved.

Court Sets Higher Standard in New Mexico

When faced with a constitutional question, savvy New Mexico appeals lawyers know to argue that the New Mexico constitution provides greater protections than the U.S. constitution. The U.S. constitution sets out a minimum level of protection, but our state constitution can do more. Here, Defendant argued that Article II, Section 18 of the New Mexico constitution should provide greater due process protections for eyewitness identifications than the Manson test.

In deciding whether to depart from the U.S. Constitution, the Court conducts what is known as an “interstitial analysis.” In particular, when the New Mexico constitutional provision has not yet been determined to provide greater protection under the interstitial analysis, trial counsel must (1) fairly invoke a ruling; (2) develop the necessary factual base and raise the applicable constitutional provision in trial court; and additionally, (3) argue that the state constitutional provision should provide greater protection, and suggest reasons as to why, for example, a flawed federal analysis, structural differences between state and federal government, or distinctive state characteristics. Here, the trial attorney developed a record and invoked a ruling on the argument that the federal analysis was flawed.

Over the decades since Manson was decided, there has been extensive research into the reliability of eyewitnesses. As it turns out, they are not very reliable. The opinion catalogs some of the many types of errors researchers have found with eyewitness testimony, including bias, a misinformation effect, overconfidence, and source monitoring errors. Compounding this, juries tend to rely heavily on such identifications.

The legal scholarship paints an equally bleak picture of eyewitness identifications. According to one law review article, eyewitness identifications were a factor in over half of the wrongful conviction cases that were later overturned by DNA evidence. And a vast amount of legal scholarship has concluded that the Manson test is untethered from any of the scientific research.

In light of the scholarship, the Court sided with the small number of states that had adopted per se exclusion rules. Under the newly announced rule, if a witness makes an identification of a defendant as a result of a police identification procedure that is unnecessarily suggestive and conducive to misidentification, the identification and any subsequent identification by the same witness must be suppressed. A burden shifting framework applies: if the defendant shows some indication of suggestiveness in the identification procedure, the State must show by clear and convincing evidence that the procedure was not impermissibly suggestive or that the suggestive measures were justified. If the State cannot do so, the identifications must be suppressed.

However, even applying the new standard to this case, the Court concluded that the district court correctly denied the motion to suppress. Because the evidence presented by the defendant did not show that the photo lineup was suggestive in nature, the identification was admissible.

Remaining Issues

The Court was able to deal fairly easily with the remaining issues. First, it was not error to introduce evidence that the defendant had been involved in the Allsup’s shooting. Evidence showed that the same gun was used for both shootings. Accordingly, the Allsup’s evidence was not offered as propensity evidence, but to show that the defendant had access to the gun. And, because the jury was given a limiting instruction on the use of this testimony, it was not unduly prejudicial to admit the evidence. Second, it held that the district court had not abused its discretion in excluding a statement from one of the victim’s sister that the victim had told her he stole money from a different person.

This should be an important opinion for criminal law practitioners and criminal defendants. The court’s new rule abandons a test that seemed to unfairly disadvantage the accused and adopts a new rule in line with modern understanding of the probative value of eyewitness identifications. It will be interesting to see how it works in practice.

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