Whether giving a jury charge on eye witness identification that lacked a factual basis in the evidence produced at trial was contrary to clearly established federal law regarding and constituted a structural error where identification was the determinative issue at trial

QUESTION PRESENTED Tyrius Green was convicted of murder based solely upon witness identification testimony as there was no physical evidence presented at his trial that tied him to the offense. While there was highly contested testimony regarding the out-of-court identification of Mr. Green, it is undisputed that no witness identified Mr. Green in-court as the person who committed the offense. Nonetheless, the trial judge utilized the New Jersey Model Jury Instructions for both in-court and out-ofcourt identifications, telling the jury that “witnesses” had identified Mr. Green incourt as the assailant and further that the jury could consider those in-court identifications in determining whether the state proved beyond a reasonable doubt that Mr. Green committed the crime. In United States v. Breitling, 61 U.S. 252 (1857), this Court stated that it was clear error to instruct the jury on a “conjectural or supposed state of facts.” This Court has also found that a defective reasonable doubt instruction vitiates the entire verdict and constitutes a structural error not subject to harmless error review. Sullivan v. Louisiana, 508 U.S. 275, 280-81 (1993). The question presented is: Whether giving a jury charge on eye witness identification that lacked a factual basis in the evidence produced at trial was contrary to clearly established federal law regarding and constituted a structural error where identification was the determinative issue at trial. INTRODUCTION The trial judge’s identification instructions to the jury were defective. The judge was clearly mistaken that there had been an in-court identification of Mr. Green. Due to this mistake, the judge utilized the wrong jury instruction for identification. The judge instructed the jury in accordance with the New Jersey Model Charge for both in-court and out-of-court identifications rather the instruction for just out-of-court identification. The error gave the jury a separate avenue to convict the petitioner, unsupported by the evidence, in violation of Mr. Green’s right to due process and right to a trial by jury.