MISIDENTIFICATION
The Caprices of Eyewitness Testimony
in Criminal Cases
copyright © 2001 Ray Moses
all rights reserved
He lies like an eyewitness.
NietzscheEyewitness identification is lay opinion testimony.
"I was absolutely positive that he was the one. But I was wrong!"
"I want you to look around this courtroom and
tell us if the man who did this is among us?"
In every criminal case, the government is required to prove the identity of the person who committed the crime. To support a conviction, the government must present evidence that the defendant was the perpetrator or a party to the perpetration of the charged crime. This is generally provided by an in-court identification of the accused; however, it can also be inferred from other evidence.
The classic movie version of a lineup!
INTRODUCTION
FACTORS INVOLVED IN EYEWITNESS IDENTIFICATION
PERCEPTIONMEMORYCOMMUNICATIONCANDOREXPERT TESTIMONY RE IDENTIFICATION
CASE LAWLOCATING AND ENGAGING AN EXPERT ON EYEWITNESS IDENTIFICATIONLIMITS ON BUTTRESSING IN-COURT ID WITH OUT-OF-COURT ID
RIGHT TO COUNSEL AT LINE-UPSDELIBERATE BAD FAITH IN MANIPULATING THE CHARGING PROCESSUNCOUNSELED PHOTOGRAPHIC IDENTIFICATIONDUE PROCESS - BALANCING UNNECESSARY SUGGESTIVENESS AGAINST INDICATORS OF RELIABILITYILLEGAL SEIZURE FOR PARTICIPATION IN A LINE-UPON-THE-SCENE IDENTIFICATION - SHOWUPSCOMPELLING THE SUBJECT TO SPEAK, STAND, WALK, AND/OR GESTUREPREPARING THE CLIENT TO PARTICIPATE IN A LINE-UP
DEFENDER'S ROLE BEFORE, DURING, AND AFTER A LINE-UP
PASSIVE ROLEACTIVE ROLEWITNESSES BEING ASKED TO IDENTIFY TANGIBLE OBJECTS
CAUTION - ADMISSIBILITY OF UNCHARGED MISCONDUCT TO REBUT DEFENSIVE THEORY OF MISIDENTIFICATION
SUGGESTIONS RE PLANNING AND PREPARING CROSS-EXAMINATION OF EYEWITNESS
OPENING AND CLOSING RE MISIDENTIFICATION
JURY INSTRUCTIONS RE INDENTIFICATION
REASONABLE DOUBT RE PROOF OF THE IDENTIFICATION ISSUE
RECENT SCHOLARSHIP RE IDENTIFICATION
WEB RESOURCES RE IDENTIFICATION
INTRODUCTION
[Read the CCJA publication, Cross-Examination in Criminal Cases, for an expanded discussion of eyewitness identification testimony in criminal prosecutions.] Identification of the accused as a wrongdoer is an element of every crime, whether the accused is acting as a primary actor or vicariously, e.g., as an accomplice. Identification by eyewitnesses is not always reliable evidence. The human brain is simply not constructed in such a way as to function as an "instant replay" camera and recorder. Analytical consideration of the psychological dimensions of eyewitness identification has revealed that the dangers from fallible sensory perception and memory and from suggestive influences are, in many cases, overwhelming. The vagaries and fallibility of such identification are well known; the annals of criminal law are rife with instances of mistaken eyewitness identification.
Yet even with the recent background of cases being overturned on the basis of DNA evidence many years after conviction, eyewitness identification is considered by most jurors and judges as the most persuasive sort of evidence. Perhaps, this is understandable. After all, if I can locate my car among thousands parked in the stadium parking lot, why should my lineup identification of the person who stuck a gun in my face at the ATM machine be considered as innately suspect? It would be nice for the defense if all prospective jurors in eyewitness cases had to watch the old 1956 movie The Wrong Man, starring Henry Fonda. It is graphic proof that eyewitness identification can be mistaken. (Though one wonders how many men the casting director had to view before finding one that looked so much like Fonda.) Perhaps, each juror in an eyewitness identification case should be given a copy of the 2001 book Actual Innocence by Barry Scheck, Peter Neufeld of the Innocence Project and James Dwyer or made to visit the Northwestern Law School Center on Wrongful Convictions. Perhaps they should visit Wrongful Conviction on the Internet. [One might ask what chance the wrongly convicted have of getting solatium, compensation, or reparation for the wrong that was done them by a flawed criminal justice process. For some insight, see this interview with Professor Neufeld. Texas lawyers should be aware of the Actual Innocence Clinic at UT, the Innocence Project of Texas, and the Innocence Network.]
Most criminal procedure students in the last forty years have faced the senario where a stranger bursts into the class, says some disparaging things to the professor, and then storms out. The professor then asks the students to write a description of the intruder (usually a grad student unknown to the class, e.g., myself forty years past at Northwestern University). There may even be an in-class lineup a few days later where the students try to indentify the culprit who may or may not be in the lineup. The point is quickly made that its hard to idenitfy strangers when the confrontation in fleeting and stressful. If you don't agree, take this online test.
As a lawyer, you have to deal with the propensity of eyewitnesses to misperceive, misrepresent, misrecollect,and misinterpret. The cases readily reflect the defender's duty to make certain that the client is not a victim of misidentification (mistaken identity), either at the pretrial stages, e.g., lineup, one man showup. or photo spread, or at trial in the courtroom. To perform this task, the defender must engage in discovery and investigation necessary to reconstruct the circumstances of the identification. Effective cross-examination on the issue of eyewitness identification is founded on an understanding of the variable that contribute to inaccurate identification, i.e., the factors that influence both the perception of an event at the time it occurred and the subsequent recall of that perception. Developing this skill requires study and understanding of the behavioral science literature, as well as common sense.
FACTORS INVOLVED IN EYEWITNESS IDENTIFICATION
The accuracy of eyewitness identification depends on numerous variables. Principal among the factors personal to the witness are the following; (1) Perception; (2) Memory; (3) Communication; and (4) Candor. Even trained observers, e.g., law enforcement officers, can make erroneous identifications in exigencies of the moment. Many judges, often trial judges who were former prosecutors, show only passing consideration to the dangers of eyewitness identification. This naivete is reflected when judges pass the buck to juries in the expressed belief that jurors are bred with the ability to intelligently measure identification testimony and that the good sense of those serving on juries will adequately protect the innocent accused from tragically mistaken misidentification. Those who safeguard the criminal justice process don't always grasp that the eyewitness identification process often calls on the so-called eyewitness to do something that a normal human being simply isn't created and constructed to do. The plain fact is that the average person has not been taught to comprehend the perils of misidentification or the clout that suggestion may have over an eyewitness' testimony.
If you are a defender, you will face eyewitness identification. You have the professional duty to become cognizant of the psychological features of confrontation that may prejudice an eyewitness's testimony. Although the thrust of this brief essay is on the dangers implicit in the overly suggestive line-up or show-up, the unreliability of a witness can also stem from the interplay of the witness' personal mental frailties, e.g., incapacity to accurately observe, record, remember, and/or communicate occurrences, even in the absence of extrinsic corrupting influences. So, as a defender you must be alert to the possibility of mistaken identification resulting not only from unnecessarily suggestive law enforcement identification techniques, but also from the native inability of human memory. Let's go to work and briefly consider the psychological factors that affect eyewitness identification.
(1) PERCEPTION
Here's the first principle of perception. Nothing sticks in the mind except that which is perceived! Here's the second principle of perception. The capacity of the human sensory organs to perceive is limited in scope! Our perception is molded by expectation, sometimes known as "mind set" or "set." This means simply that we perceive what we expect to perceive and what we think is expected of us. The fact-finding process in a criminal investigation and trial is based on the premises that sworn witnesses can reconstruct the truth based on perception, memory, and recollection. Witnesses want to live up to the expectations of the system, as well as their expectations of themselves. Witnesses without motives to falsify typically want to be accurate and to appear able and consistent. What public-spirited citizen wants to be viewed as the one who threw the proverbial monkey wrench into the machinery of law enforcement? If an eyewitness to a crime doesn't find exactly the face that s/he saw during a crime, there is a psychological tendency to select a similar one at the lineup and/or in court.
Observers are also influenced in their perceptions by biases, prejudices, interests, and motives. Psychologists have learned that perception is a decision-making process, one that is influenced by attitudes, background, abilities, environment, and the way that the witness' perception is tested. (As we will see, the same is true for memory.) It is important to understand that people perceive selectively. We don't focus in wide angles. Prior life experiences condition our perceptions of the world transpiring around us. In an effort to be good citizens, witnesses in good faith may fill in gaps in their memory. How are those memory gaps filled in? Gaps in actual perception are often filled in by the witness relying on what S/he expected or wanted to perceive. Between the time of perception and recall, we find a subconscious perceptual filling-in of unperceived details. Why? Filing-in by eyewitness is often done to give symmetry to the witness' actual perception. If you think about it, it makes sense that eyewitnesses fill in gaps. It's human nature. We do it every day when we rely on inferential reasoning to fill in gaps in actual perception, e.g., X parks his car under a tree, comes back an hour later and finds a bird dropping on top of the car and a bird chirping in the tree and infers that the bird in the tree dropped the calling card on the car top. The point is that we infer things we don't know from other things that we do know. Sometimes our senses play tricks on our perceptions. For example, researchers tell us that if an observer sees two lights in the dark, one bright and one dull or one large and one small, the observer perceives the brighter or larger light as closer than the dull or small light, even though, in fact, the dull or smaller light is actually closer than the large or bright light.
What does research about perception mean to the defender in a case involving eyewitness identification? Perceptions of an identification witness often occur against a backdrop that produces fear, anxiety, and/or terror. Stress research informs us that detailed perception is less accurate in pressure-filled situations that threaten the perceiver than it is in the same perceiver in non-stressful situations. This scientifically verified fact is probably contrary to what most lay persons believe. Indeed, it is quite common in criminal trials for an eyewitness who was in a life-threatening situation to say, " I remember his face. I'll never forget it." In reality, the witness is often positive of what s/he saw because of the intensity of his or her feelings about the event and not because s/he has great faith in the accuracy of his or her perception, memory, and recollection. The prosecution will argue that the picture image of the perpetrator was indelibly branded in the crime victim/witness' memory banks because of the stressful situation. In fact, this does not comport with research findings. What does happen in a stress-provoking situation is that the person under stress undergoes a sudden gush of energy characterized by rapid heart beat, increased breathing rate and an associated acceleration of blood pressure. [Just remember what your autonomic nervous system did the first time you were called upon to recite in a law school class or deliver a talk in your high school speech class. Triple it.] There is no question that this burst of energy is functional in preparing the crime victim to survive the threat. Certainly, the greater the intensity of the experience, the more likely it will be that the experience will be remembered. However, the greater one's emotional involvement, the greater the potential distortion in both perception, memory and recollection. Life-threatening stress narrows the scope of perception and heightens the emotions. [Note: Neurology researchers report that stress directly affects the hippocampus, impairing the formation and retrieval of memories; also, the amygdala, an almond shaped mass in the brain, perpetuates fear when confronted with stressful stimuli.] Emotions disorganize the thought process. In short, the more pronounced the stress or excitement, the more likely that the event will make an impression on the person and the more likely that his perception and recall will be unreliable.
(2) MEMORY
Memory is a net; one finds it full of fish when he takes it from the brook;
but a dozen miles of water have run through it without sticking.
Oliver Wendell Holmes, Sr.Psychologists (1) and behavioral science researchers have found that memory is also subject to influence by the observer's conditioning. The machinery of the mind may decline to store a perception because of the mind's condition. If the perception is unwanted, the mind may drive it out. Memories repose in the mind, and memories are lost (1), (2 - simple word recall test). They are subject to psychological manipulation. Many ways exist to convince a person that s/he saw or heard something that s/he did not actually see or hear. In eyewitness identification, the most pernicious of these outside influences occur when law enforcement officials take advantage of the witness' vulnerability to improper suggestion.
A major contributor to the hazards of eyewitness identification of strangers is the degree of suggestion present in the pretrial identification process. Suggestion can be created intentionally or unintentionally in many subtle ways. The dangers for the suspect are particularly grave when the witness' opportunity for observation was insubstantial and, thus, his or her susceptibility to suggestion the greatest. Suggestive confrontations between and eyewitness and an accused increase the likelihood of misidentification. Unnecessarily suggestive confrontations are even worse because there the increased chance for misidentification is gratuitous.
Law enforcement officers who conduct a lineup are in a position to influence the witness, particularly if the witness desires to be approved as a good citizen and/or wishes to show appreciation for the officer's efforts to solve a crime. The witness may try to pick the right person in the lineup rather than saying, I don't know because I don't remember." On occasion, police identification procedure can cause a witness to be psychologically "set" to identify a particular person. The concept of set means that, prior to a lineup, the percipient witness may be primed to a state of preparedness to receive a particular class of stimulation and to operate on that stimulus in a pre-defined manner, namely, to identify. Suppose the police provide the witness with post-event data that is mingled into the witness' recollection of the event. The witness is then set to identify someone in the lineup who displays the post-event characteristics. Law enforcement officials can enhance this set by any number of suggestive tactics, e.g., telling the prospective witness, "We think we have the man who did it. We caught him using a similar scheme to gain entry into another victim's home. Can you come down and identify him?" or "We arrested a man who was carrying your wallet. We want you to identify him as the man who robbed you." or "We found some blonde hairs that we think belong to the man who attacked you. We've got a suspect. We'd like you to take a look at the guy." Law enforcement may also poison the well by allowing witnesses to visit with one another about the event and share their recollections, thus, buttressing their respective memories with feedback facts gleaned and adopted from other witnesses.
The accuracy of memory may be influenced by what is demanded of it. For example, psychological research indicates that memory is less accurate when it is called upon to reconstruct an event than when recognition of the event is demanded. This insight could be used by the defender in planning summation on eyewitness identification in cases where the witness was unable to give authorities a full description of the perpetrator and this is brought out by the defender during cross of the witnesses. For example, the defense might argue the witness' inability to use his memory to construct a verbal description of the offender. e.g., facial features, height, weight, etc.
Almost everyone, by virtue of common experience, believes that memory becomes distorted and dim with the passage of time. For whatever reason, the memory discards certain stored information over time. Do we remember all of the phone numbers we have had, the combinations on every lock that we've used, the street address of every house we've ever lived in or the room number of every hotel/motel that we've ever rented? We do the same with faces. Thus, the passage of a substantial amount of time between an eyewitness' observation of the perpetrator, who was a stranger, and the lineup or in-court identification would clearly be a factor that could weaken the eyewitness' memory.
Psychologists have described the influence of passage of time on one's memory in terms of sharpening and leveling effects that memory has on the original perception. As time passes the, the critical aspects of the originally perceived situation becomes exaggerated or sharpened out of proportion to their significance in the original perception. This is known as sharpening. Similarly, memory for less critical aspects of the original perception becomes diminished below the proportion it help in the original perception. This is known as leveling. These two effects continue to occur from the time of the perception and the subsequent retrieval of that information. Insofar as recollection of a face is concerned, time causes the memory to distort (sharpen) and highlight certain features and discard (level) or minimize less salient features.
The "recency effect" is described by psychologists in relating passage of time to accuracy of memory. Recency means simply that the items which have been most recently presented to the person are those that will be remembered best, all other things being equal. Since lineups, showups, and photo displays occur after the criminal event, one might expect that the memory of that confrontation might be better than that of the criminal event.
Memories are capable of being fused. That is, one perception may become fused in the mind's eye with another. Some behavioral scientists call this unconscious transfer. Thus, if an eyewitness to a crime subsequently sees a person who looks familiar, this familiarity maybe interpreted by the memory as relating to the crime, even though the actual contact between the witness and the person identified may have occurred innocently prior to the criminal event. In effect the two memories of people or objects at two different times bleed into each other, with the result that the memory confuses one for the other. Mistaken identification of a person as a wrongdoer may result because the person looked familiar. See Ebbesen, et al, Person Memory: The Cognitive Basis of Social Perception.
(3) COMMUNICATION
Communication in the verbal sense could be described as the ability of an eyewitness to describe an event or person he has seen in a manner that converts his memory's image into language that is converted into an image in the receptor's mind. There can be an honest distortion at this stage of the eyewitness identification process, depending on the ability of the eyewitness to articulate descriptive facts. This may provide a fertile area for cross-examination.
(4) CANDOR
Eyewitness identification depends on witness candor. Most faulty identification evidence is the result of honest mistake , rather than deliberate misidentification. The danger in such good faith mistaken identification evidence is that it is sincere. Unless, the cross-examiner can demonstrate the likelihood of misidentification based on limited perception and/or improperly conditioned recollection, it can be risky to cross-examine the honestly mistaken identification witness. Indeed, if the honestly mistaken witness stands her ground, unstructured cross-examination can backfire by strengthening the apparent certainty of the identification.
EXPERT TESTIMONY - PROOF CONCERNING PSYCHOLOGICAL FACTORS INVOLVED IN IDENTIFICATION TESTIMONY
In some cases, the eyewitness' identification testimony is unshakable. If there is no leverage to be gained by sustained attack on the witness' ability to perceive, recollect and/or communicate what he saw - and if the witness will appear as truthful, unbiased, and without motive to falsify - tactical considerations may suggest some other avenue of demonstrating that the identification is mistaken. One possible avenue to showing the weakness of eyewitness identification would be to present expert forensic testimony to enlighten the jurors on the vagaries of eyewitness testimony and/or to evaluate the reliability of the identification in the particular case. Here is an edited, annotated direct and cross-examination of one of the leading experts on eyewitness testimony.
What if the defense were allowed to introduce expert psychological testimony concerning the vagaries of perception and memory as they apply to eyewitness identification? There are a number of social psychologists who have made studies of the power of observation by subjects who are under stress; there are also studies that describe the power of suggestion as an influence on eyewitness identification. The social psychologist probably won't be allowed to say that a particular witness is wrong in her identification, but might be allowed to describe the scientifically discovered phenomena that influence identification. The purpose of expert testimony would be to present the fact finder with relevant information that may be useful in analyzing and weighing eyewitness identification. For example, research reflects that memory from the lineup, showup, or photo spread can supplant the memory of the actual perpetrator.
You will need to explore the case law in your jurisdiction to determine whether the courts have been receptive to the admissibility of eyewitness identification testimony on the psychological factors that influence the memory process (1 - 30 page article on the NY approach), (2 - Tennesse case permitting expert opinion). Some jurisdictions follow the old rule established in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) that permits expert testimony on the basis of scientific principle or technique that is "generally accepted" in the relevant field. In other jurisdictions, the so -called "Daubert Rule" vests trial judges with discretion to determine whether expert testimony is reliable and relevant. The case of Daubert v. Merrill Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993), established the rule and postulated four factors that trial judges should use in deciding admissibility of expert testimony: (1) whether the theory or technique is susceptible of testing; (2) whether the field of expertise has been subjected to peer review; (3) the known or potential rate of error; and (4) whether the field of expertise has won "general acceptance. See also Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137 (1999) holding that the trial court's role as gatekeeper under Rule 702 FRE extends to opinions based on technical and other types of specialized knowledge;General Electric Co. v. Joiner, 522 U.S. 136 (1997) holding that the trial court's decision to admit or exclude evidence under Daubert is reviewed on appeal using an abuse of discretion standard. This site contains a federal district court opinion dealing with the three steps in determining the admissibility of expert testimony re eyewitness identification under Daubert.
Cases - Here are some cases (1 - NY) regarding use of expert testimony regarding the reliability of eyewitness identification: Excluding such expert testimony- United States v. Smithers, 212 F.3d 306 (7th Cir. 2000); United States v. Crotteau, 218 F.3d 826 (7th Cir. 2000); United States v. Rincon, 28 F.3d 921 (9th Cir. 1994); State v. Percy, 595 A2d 248 (VT. 1991); People v. Sanders, 905 P.2d 420 CA.1996).. Indicating that exclusion of the expert testimony amounts to an abuse of trial court discretion: State v. Chapple, 660 P.2d 1208 (AZ. 1983); Williams v. State, 594 So.2d 1225 (AL. 1992); People v. Campbell, 847 P.2d 228 (CO. App. 1992); State v. Whaley, 406 S.E.2d 369 (SC 1991); Echavarria v. State, 839 P.2d 589 (NV. 1992). [Texas Defenders Note: If you are thinking about trying to introduce a forensic evaluation of eyewitness identification, consult these cases: Jordan v. State, 928 S.W.2d 550 (Tex. Crim. App. 1996); Nations v. State, 944 S.W.2d 795 (Tex. App. - Austin - 1997); and what I conceive as the "Weatherred quartet" of Wetherred v. State, 963 S.W.2d 115 (Tex. App. - Beaumont - 1998); Weatherred v. State, 975 S.W.2d 323 (Tex. Crim. App. 1998); Weatherred v. State, 985 S.W.3d 234 (Tex. App. - Beaumont - 1999); Weatherred v. State, 15 S.W.3d 540 (Tex. Crim. App. 2000). The sometimes maligned Texas Court of Criminal Appeals, composed primarily of former prosecutors, presently appears to take special pains to prevent defenders from introducing expert testimony regarding eyewitness identification.]
Locating and Engaging a Mistaken Identification or False Memory Expert - How does one find an expert witness on the subject of mistaken eyewitness identification? Start with the academics. An excellent starting point is eyewitness site at the University of Texas at El Paso. Psychologists who specialize in the subject of the psychology of eyewitness identification have established several useful web sites. My favorite professor-sponsored site is that of Professor Gary Wells (email), distinguished Professor of Psychology at Iowa State University. Read his 1998 and 2006 articles cited at the end of this CCJA web page. Wells is not one of those pointy-headed academics who spend all of their time in the lab and classroom; he testifies as an expert (1). Another well known and respected name is that of Professor Elizabeth Loftus (1), (2),the gran dame of eyewitness experts, who has links to a number of her writings on the subject. Read her Ten Years in the Life of an Expert Witness, 10 Law & Human Behavior 241 (1986). [Note: For an insight into what an eyewitness expert says on the witness stand in direct and cross-examination, take a look at the edited transcript of Dr. Loftus's testimony in theTexas "Wig Shop Murder" case.] One of the more active experts in the field is Professor Roy S. Malpass who runs the Eyewitness Identification Resources Laboratory at the University of Texas at El Paso. Professors Nancy Steblay (1), (2 - double blind sequential line-up) of Augsburg College in Minneapolis and Kathy Pezdek of Claremont Graduate College are two prominent researchers whose work is contributing to the effort to clean up the eyewitness identification process. Other names in the field include Professor John Brigham of Florida State, Professor Jonathan Schooler of the University of British Columbia, Professor Steven Penrod (1 -research) of the John Jay College of Criminal Justice in New York, Dr. Solomon Fulero, (a very active defense expert witness) Clinical Assistant Professor at Wright State University in Dayton, Ohio, Steven Clark, Associate Professor of Psychology at the University of California at Riverside, psychiatrist Charles A. Morgan III (1), (2) of Yale School of Medicine, and Robert Shomer, Pd.D. also in California. Here's a list of fourteen eyewitness experts who meet the peer review standards of William's College Professor Saul Kassin, a self-styled reluctant expert witness. If you're in the mid-west, check out Dr. Roger Lyon Terry of Madison, Indiana, who has recently written a book on the subject. There are a number of other up and coming researchers and labs (1), (2) in the field. Quite a few of the recognized behavioral scientist educators working in this specialized area also serve as "trial consultants." Among other things, these experts may provide testimony that describes how the brain processes, stores, and retrieves information; analyze the silky power of suggestion; and investigate faulty recollections. Prosecutors who are facing testimony from defense hired experts on the subject of eyewitness testimony have their experts to show the reliability of eyewitness identification and to debunk some of the scientific experiments and studies of memory that use college students. Two highly regarded government counter experts seems to be nationally recognized researcher Dr. Ebbe B. Ebbesen, (1 - home page), (2), (3 - article), (4 - article) a retired Ph.D. professor of psychology at the University of California at San Diego (actually located in the beautiful village of LaJolla) and his colleague and apparent disciple Dr. Heather Flowe (1).
LIMITS ON BUTTRESSING IN-COURT IDENTIFICATION WITH PROOF OF PRIOR OUT-OF-COURT IDENTIFICATION
The pretrial identification procedure must meet constitutional standards before testimony concerning the identification is allowed. The prosecution cannot buttress its case-in-chief by introducing evidence of a pretrial identification made in violation of the accused's Sixth Amendment rights. See Moore v. Illinois, 434 U.S. 200 (1977); Gilbert v. California, 388 U.S. 263 (1967). To present this from happening, the defense must file a motion to suppress the identification evidence. See (1 - a review of the federal cases by the federal public defender of the District of Columbia).
Right to Counsel at Line-ups After Initiation of Adversary Criminal Proceedings:Under the so-called Wade-Gilbert Rule, derived from United States v. Wade, 388 U.S.218 (1967) and Gilbert v. California, 388 U.S. 263 (1967), it was held that (1) a post-indictment pretrial line-up at which the accused is exhibited to identifying witnesses is a "critical stage" of the criminal prosecution and that police conduct in holding such a line-up without notice to and in the absence of counsel denies the accused her Sixth and Fourteenth Amendment right to counsel (This case gave rise to the per se rule of exclusion of the out-of-court identification without counsel and without a valid waiver of counsel, i.e., exclusion of evidence of the out-of-court identification is required even if the identification is reliable.) and (2) an uncounseled identification after indictment, or equivalent formal charging procedure, calls into question the admissibility at trial of the in-court identification of the accused by a witness who attended the uncounseled line-up, i.e., the in-court identification by the witness who attended the uncounseled line is admissible only if the prosecutor can prove, based on a totality of circumstances, that the the witness' in-court identification is derived from an independent source from the illegal uncounseled line-up. These two cases, Wade and Gilbert make it clear that no in-court identifications are admissible in evidence if their source is a line-up, showup, or other identification proceeding conducted in violation of this constitutional Sixth Amendment right to counsel standard. Gilbert, a case where the prosecution introduced in-court and out-of-court ID evidence stemming from an uncounseled line-up, established that a per se exclusionary rule is applied to testimony concerning the out-of-court illegal line-up identification. The object of the latter rule is to insure that law enforcement officers will respect the accused's constitutional right to the presence of counsel at the critical stage line-up.
The per se exclusionary rule makes it clear that eyewitness testimony concerning the uncounseled lineup will be excluded. But what about the in-court identification of the accused by a witness who was present at the uncounseled lineup? As mentioned above, there is no automatic exclusion of the in-court identification testimony from the witness who attended the uncounseled line-up. Wade, a case in which the prosecution had introduced only the in-court identification from a witness who had attended an uncounseled illegal line-up, said that in-court identification in this circumstance is to be excluded unless the prosecution can prove under the totality of circumstances that the in-court identification was not the product of the earlier uncounseled lineup, i.e., that is, that the in-court ID flowed from an "independent source." So, defense counsel must object and urge that in-court identification by the witness who identified the accused at the earlier uncounseled line-up was tainted and influenced by the earlier uncounseled unconstitutional identification. The Supreme Court has indicated that the sufficiency of the prosecution's proof of an independent source of the in-court identification can focus on such factors as the extent of the witness' prior opportunity to view the accused, the degree of certainty of the witness' identification at the line-up, presence or absence of inconsistencies and discrepancies between the witness' description of the perpetrator prior to uncounseled illegal line-up and the way the accused actually looked, the length of time between the witness' first opportunity to view the perpetrator and the uncounseled line-up identification, and any suggestive methods used in the uncounseled line-up.
Later, the Supreme Court limited the impact of Wade and Gilbert by concluding that a line-up or show-up after arrest but before the initiation of adversary criminal proceedings, whether by way of a formal complaint, preliminary hearing, indictment, information, or arraignment, and unlike the post-indictment confrontation in Wade, is not a critical stage of the criminal process at which the accused, as a matter of absolute right, is entitled to counsel. See Kirby v. Illinois, 406 U.S. 682 (1972). See Moore v. Illinois, 434 U.S. 220 (1977) which reaffirmed Kirby. Notice that the Kirby case has rendered the right to counsel issue nugatory in the vast majority of cases, because the authorities simply do line-ups before formal charges are brought. Isn't it interesting that the Supreme Court that has given so much lip service to the truth seeking purpose of the criminal trial process has refused to allow the right to counsel at a stage where, aside from coerced confessions, there is the greatest danger to the truth. Of course, I refer to the dangers of mistaken eyewitness identification testimony.
To sum up, what is the test to determine if Wade applies? First, there is a right to counsel at the lineup conducted after initiation of adversary criminal proceedings. The violation of this rule, in the absence of an intelligent and knowing waiver of counsel, is enforced by excluding any trial testimony of identification of the accused at the uncounseled line-up or show-up. Testimony concerning identification made at an uncounseled line-up is inadmissible under a per se exclusionary rule. If, however, an intelligent waiver of counsel is made, the Sixth Amendment is no longer an issue in any claim of an illegal line-up. Second, assuming that the right to counsel has been violated, the issue becomes whether the illegal line-up identification has tainted the in-court identification of the accused by the identifying witness. If so, then the in-court identification must be excluded. The issue is one of law, and the court decides it by determining whether or not the in-court identification has an independent origin from the illegal line-up. The burden is on the prosecution to prove by clear and convincing evidence the existence of an independent origin. This burden can be met by evidence focusing on such factors as the witness' prior opportunity to observe the perpetrator, absence of discrepancy between our-of-court and in-court identification, absence of any mistaken out-of-court identification, etc.
The Supreme Court in Wade stated that the introduction of an in-court identification based on an uncounseled line-up appearance can be harmless error. In Gilbert, the court stated that the harmless error rule could also apply to the introduction of testimony concerning an out-of-court identification made at an uncounseled line-up.
Wade-Gilbert doesn't apply to situations where the accused is in custody for one crime which has been formally charged and is placed in a line-up in connection with an offense that is still in the informal investigatory stage.
Deliberate Bad Faith Police Manipulation of the Charging Process to Avoid the Right to Counsel and the Wade Exclusionary Rule
Although the United States Supreme Court has not had occasion to rule on the issue, if the defense can show that the prosecution deliberately sought to avoid the Wade rule by delaying indictment or formal invocation of criminal proceedings in order to bring the lineup within the rule of Kirby v. Illinois, 406 U.S. 682 (1972), an uncounseled line-up identification should be subject to the Wade exclusionary rule.
Uncounseled Photographic Identification There is no Sixth Amendment right to counsel at a pre-indictment or post-indictment photographic identification, e.g., display of a photo spread (display or pack). See United States v. Ash, 413 U.S. 300 (1973). The logic is that the defendant is not present at the photo spread (display or pack) and that there is no adversarial confrontation that would merit the presence of counsel. [Note: In recent years there has been a noticeable trend in law enforcement to utilize photo spreads rather than live line-ups. This is due not only to the legal implications,e.g., right to counsel, but also to the fact that the photo spread is easy to memorialize for future courtroom proceedings and, with the aid of software, easy to prepare using photo databases drawn from rich sources such as book-ins, mugshots, and driver's licenses. Software can search databases for similar faces and can provide a similar neutral background for all photos in the spread. Software can also print a form on the back of each photo for the witness to indicate a positive or negative identification in writing. The spreads typically contain six photos (often 2" X 2") of the upper chest, neck, and head.]
Due Process: Balancing Unnecessary Suggestiveness Against Indicators
of Reliability; A Very Substantial Likelihood of
Irreparable Misidentification
An identification may be challenged on due process grounds, wholly aside from the issue of whether the accused was denied the right of counsel at the line-up. Due process is the focus of most of the litigation involving government misconduct in conducting eyewitness identification procedures. This is material that the defender must master. In line-ups, show-ups, or confrontations, the United States Supreme Court has indicated that the admissibility of evidence of an out-of-court identification is to be judged by a due process test that involves a balancing of certain factors indicative of reliability of the identification against the corrupting effect of any suggestive identification procedures. See Manson v. Brathwaite, 432 U.S. 98 (1977); Neil v. Biggers, 409 U.S. 188 (1972); Allen v. Estelle, 568 F.2d 1108 (5th Cir. 1978). Thus, even though an out-of-court identification procedure is unnecessarily suggestive, evidence of the out-of-court identification may still be admissible if the court is satisfied that under the totality of circumstances the identification is reliable, i.e., that there is not a "very substantial likelihood of irreparable misidentification."
The Manson v. Brathwaite case severely diluted the rule of Stovall v. Denno, 388 U.S. 293 (1967), which had indicated that the evidence of an out-of-court identification would be inadmissible against the accused if the evidence revealed that the out-of -court confrontation "was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law."
In Kirby, the court reaffirmed that the Due Process Clause of the Fifth and Fourteenth Amendments forbids a line-up that is unnecessarily suggestive and conducive to irreparable mistaken identification. Thus, one might assume that if the line-up identification can be shown to be unnecessarily suggestive, the out-of-court identification must be automatically suppressed on due process grounds and the evidence must show that any subsequent in-court identification is of independent origin, i.e., that it is untainted by the unduly suggestive out-of-court identification. See Stovall v. Denno, supra: Simmons v. United States, 390 U.S. 377 (1968). See also, Foster v. California, 394 U.S. 440 (1969), reversed for a due process violation based on improperly suggestive tactics. This is not the rule. In the Manson case, the Supreme Court held that an out-of-court identification can be valid evidence even though the confrontation procedure is unnecessarily suggestive if the facts show that the out-of-court eyewitness identification was reliable. After Manson, the rule apparently is that the admission of testimony concerning an unnecessarily suggestive identification procedure does not violate due process so long as the identification possesses sufficient aspects of reliability.
Reliability is the linchpin in any effort to determine the admissibility of out-of-court identification testimony for both pre and post-Stovall confrontations in the face of a claimed due process violation. The five factors deemed relevant by Manson-Biggers to the reliability issue, that must be considered under the federal due process test in evaluating the likelihood of misidentification, include: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention at the time of the crime; (3) the accuracy of the witness' prior description of the criminal after the crime; (4) the level of certainty demonstrated by the witness at the time of the confrontation; and (5) the length of time between the crime and the pretrial confrontation. These factors are balanced against the unnecessarily suggestive practices of the pretrial confrontation. If the identification witness is found to be able to make an accurate identification, notwithstanding the corrupting influence of the pretrial identification procedure, the court will find that both the in-court and out-of-court identifications are admissible for whatever weight the jury wishes to give them. [Please Note: The overwhelming weight of research in the area of eyewitness identification shows that the U.S. Supreme Court got it wrong with regard to at least one of the Manson-Biggers reliability factors, i.e., "the level of certainty" demonstrated by the witness at the time of the pretrial confrontation. At least two states have created a due process test of reliability under their own state constitutions that differs in the factors for consideration by the trial court in whether to exclude eyewitness identification testimony on the basis of unreliability. Defense attorneys across the nation should read the following two cases, and, when the opportunity presents itself, urge their state high courts to adopt a more sensible calculus of reliability under the due process clause of their respective state constitutions. See State v. Ramirez, 817 P.2d 774 (Utah 1991) and State v. Hunt, 69 P.3d 571 (Kan. 2003). See also Brodes v. State, 614 So. 2d 776 (Ga. 2005). This would require raising the issue at the trial court level with a "Motion to Apply A Rational Due Process Analysis Under the State Constitution to the Test the Trial Court Uses to Determine Reliability of the Eyewitness Identification and Hence the Admissibility of the Identification" You will need expert testimony to demonstrate the factors that should fairly be considered by the trial court in determining the reliability of an eyewitness identification and its consequent admissibility in evidence. Read Professor Wells' working draft, What's Wrong with the Manson-Braithwaite Test?, and read the article by Timothy O'Toole and Giovanna Shay in the 2006 Valpariso Law Review proposing a new due process test for challenging identification procedure, based upon a reanalysis of the Manson v. Brathwaite case.]
Lineup procedures that might support a claim of unnecessary suggestiveness might include such seemingly unfair circumstances as: (1) putting persons in the line-up who are known to the identifying witness; (2) putting persons in a line-up who do not have a markedly distinguishing characteristic common to the suspect participant and the perpetrator; (3) pointing the suspect out to the identifying witness prior to or during the line-up; and/or (4) failing to make any sort of record of the circumstances of the line-up. For a case holding that a suggestive line-up tainted the courtroom identification, see United States v. Rogers, 387 F.3d 925 (7th Cir. 2004). But see Amador v. Quarterman, 485 F.3d 397 (5th Cir. 2006).
What about the in-court identification subsequent to an out-of-court identification that is held to violate due process because it is unreliable due to law enforcement suggestiveness? The rule with regard to the in-court identification in such cases of unreliable out-of-court identification is one of per se exclusion. That means that the in-court identification is excluded (suppressed). See Foster v.California, 394 U.S. 440 (1969). Also, consider the situation where the witness is unable to identify the defendant at a line-up, but, after seeing him in court, is able to identify him. See United States v. Emanuele, 51 F.3d 1123 (3rd Cir. 1995) suppressing the identification.
In short, the due process calculus involves a two-step analysis. Step One: The defense must prove that the identification process (procedure) was "unnecessarily" (impermissibly) "suggestive", i.e., two things - that it was (a) suggestive and (b)