[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 Hitchcock's 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 where numerous convictions have been overturned due to eyewitness misidentification, false confession, forensic error, perjured testimony, and prosecutorial misconduct. (1 - Scheck speech) 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. See also Garrett & Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 Va. L. Rev. 1 (2009). Texas lawyers should be aware of the Actual Innocence Clinic at UT, the Innocence Project of Texas, and the Innocence Network. The USSC has held that the Due Process Clauise does no provide a constitutional right to obtain postconviction access to evidence for DNA analysis. See District Attorney's Office for the Third Judicial District v. Osborne, 557 U.S. 52 (2009).] 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). (1 - VIDEO at John Jay College), (2 - VIDEO) 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. (1, - VIDEO) 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. (BRAIN GAMES)
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! (1 - Experiment with # of "F"s) 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. Sometimes, of course, we can make logical deductions from what we don't see. (VIDEO - VISUAL TEST - Which way is the bus going?) 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 (VIDEO - anxiety), and/or terror. Stress research (VIDEO - stress) 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.
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.
Psychologists (1) and behavioral science researchers have found that memory is also subject to influence by the observer's conditioning. (Basics of memory - VIDEO) 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 - EXPERIMENT - 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. Video Memory Tests: (1 - VIDEO); (2 - VIDEO word recall test)
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.
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). Allowing such expert testimony - United States v. Smith, 621 F. Supp.2d 1207 (M.D. Ala. 2009) re cross-racial identification. Indicating that exclusion of the expert testimony amounts to an abuse of trial court discretion: State v. Chapple, 660 P.2d 1208 (AZ. 1983); Ex parte Williams, 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); State v. Copeland, 226 S.W.3d 287 (TN 2007). [Texas Defenders Note: If you are thinking about trying to introduce a forensic evaluation of eyewitness identification in my home state of Texas, 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 (1 - sample UTEP coven) 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 ubiquitous 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, the grande dame of eyewitness experts, who has links on her web site 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 CCJA edited transcript of Dr. Loftus's testimony in the Texas "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. For a recent case on the initiation of adversary judicial proceedings as triggering the right to counsel in a confession case, see Rothgery v. Gillespie County, 554 U.S. __, 128 S.Ct. 2578 (2008).
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
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 three 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 three 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. Henderson, 27 A.3d 872 (N.J. 2011), State v. Ramirez, 817 P.2d 774 (Utah 1991) and State v. Hunt, 69 P.3d 571 (Kan. 2003). See also State v. Chen, 27 A.3d 930 (NJ 2011), Brodes v. State, 614 S.E.2d 766 (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. See also Yacona, Manson v. Brathwaite: The Supreme Court’s Misunderstanding of Eyewitness Identification, 39 John Marshall Law Review 539 (2006).] 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, 458 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) (1) 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) unnecessarily so. Step Two: If the defense has satisfied Step One by showing the identification was "unnecessarily suggestive," the prosecution should have to show that, under the totality of the circumstances, the unnecessarily suggestive identification was reliable, i.e., that there was not "a very substantial likelihood of irreparable misidentification.". The "totality of circumstances test" focusing on factors such as the degree of law enforcement suggestiveness, the witness' opportunity to view the perpetrator, the witness' attention to the perpetrator, the accuracy of the witness' description of the perpetrator, the witness' level of specificity in the original description of the perpetrator, the length of time between the witness' original opportunity to view the perpetrator and the identification, and the suggestibility of the witness. Even though the prosecution should bear the burden of showing reliability of the unnecessarily suggestive identification, the defense should actively and aggressively try to demonstrate unreliability. Remember, if the due process violation is proved, both the in-court and out-of-court identification must be suppressed (excluded) from evidence.
Illegal Seizure: Identification Obtained As A Result of An Illegal Arrest
Does the Fourth Amendment apply to lineups? Suppose that the accused is under illegal arrest at the time he is placed in a line-up or otherwise required to confront an eyewitness. Can the accused object to evidence of such out-of-court identification on the ground that the identification was the fruit of the illegal arrest? If so, would the prosecution bar the burden of showing that any in-court identification has an independent course, e.g., the observation of the perpetrator during the crime?
Even if the arrest is illegal, the in-court identification testimony of the eyewitness will be allowed if s/he testifies that the identification was the result of having seen the accused during the commission of the offense. If the witness says that the line-up identification did not aid the in-court identification in any way, the court will hold that the in-court identification testimony would have been obtained regardless of the illegal arrest by means sufficiently distinguishable from the underlying illegality to purge the identification of the primary taint associated with the illegal arrest. [Note: In my home state, Texas, there is no statutory authority for a court-ordered detention of a person, on less than probable cause for arrest, for the purpose of requiring the person to participate in an investigatory line-up.]
On-The-Scene Identification - The One-On-One Showup The question arises whether an arresting officer may conduct a one-on-one confrontation (show-up) between an eyewitness and a suspect shortly after the commission of a crime. The right to counsel under Kirby, the case that says the right to counsel is triggered by initiation of adversary judicial criminal proceedings, does not apply to prompt on-the-scene confrontation. Of course, the right to counsel would apply to a one-on-one confrontation after such formal proceedings have been initiated. See Moore v. Illinois, 434 U.S. 220 (1977).
It may be urged that under the totality of circumstances a prompt one-on-one (show-up) identification is impermissibly suggestive. In this event, the absence of counsel is simply one consideration in the totality of circumstances. The suggestive nature of a one-on-one confrontation is self-apparent. From a logical viewpoint, the one-on-one confrontation is thought to present greater risks of mistaken identification than a line-up. A one-on-one identification procedure is subject to the same requirement concerning due process fairness as a line-up. See Moore v. Illinois, supra. For a good discussion of the inherent weaknesses of show-ups, see , State v. Dubose, 669 N.W.2d 582 (Wis. 2005) where the state high court ruled that identification based on one-on-one showups is not admissible unless an emergency required the showup.
Compelling the Suspect to Speak, Stand, Walk, and/or Gesture The short of it is that the suspect has no testimonial privilege against being compelled to speak for voice identification at a line-up. Nor does the suspect have a testimonial privilege against being required to stand, assume a stance, walk, or dress in certain clothes. Of course, the suspect may refuse to cooperate, and force won't normally be used to make him comply with the authorities' request, but the lack of a testimonial privilege will make it possible for the refusal to cooperate to be admissible at trial. The Fifth Amendment privilege doesn't apply to such compulsion; it protects only against compulsion that involves the gathering of testimonial or communicative evidence. In United States v. Wade, 388 U.S. 218 (1967) the court stated that compelling the accused to exhibit his person for observation by a prosecution witness prior to trial involves no compulsion having testimonial significance. Similarly, compelling the suspect to speak within hearing distance of the witness, even to utter the words purportedly uttered by the offender, is not compulsion to utter statements of a testimonial nature because the suspect is simply being required to use his voice as an identifying characteristic, not speak his guilt.
PREPARING THE CLIENT FOR PARTICIPATION IN THE LINE-UP
Prepare your client for the line-up by advising him that he should cooperate in appearing in the line-up. Explain that he has nothing to gain by refusing to cooperate. Advise him also that there is no legal ground for refusing to participate and that any obstreperous (unruly, disruptive, hostile, and aggressive) conduct on his part will be noted by the police. The lack of cooperation at the line-up could be used later, as evidence against him at his trial. You may need to explain that the Supreme Court has decided that the privilege against self-incrimination doesn't apply to line-ups and that the authorities can use reasonable force to make him participate. Explain that, even if the police decided not to force him to participate, they still can resort to several other options, e.g., a photo spread, informal one-on-one walk-by show-up, or a prompt preliminary hearing where the witness will be allowed to confront and identify him one-on-one.
Tell your client not to say anything to any of the other people chosen to participate in the line-up. Tell him that he may be put in a room with these people before and/or after the line-up. Tell him these people may be police officers or news reporters. Tell him that anything he says to these folks will probably be reported to the prosecution. Tell him that, if he is asked to speak during the line-up, he should not object and that he should just repeat, in a normal tone of voice, the words that the officer asks him to say without saying anything else. Tell him not to slouch or slump or attempt to shield his face with his hands. Tell him to stand up straight with this hands at this side and look straight ahead Tell him not to smirk or smile.
If the client has not participated in a line-up in the past, s/he should be informed of what to expect. Explain to him how line-ups are conducted in the locality. If you don't know, find out. For example, in metro areas, there is a room, sometimes referred to by the police as a "show-up room" in which line-ups are conduced. Typically, the rear portion of this room contains a number of seats for the witnesses and officers conducting the line-up. The front portion of the room contains a raised stage or podium with a backdrop containing six to eight numbered spaces. The stage is lit with several powerful, directional lights. The viewing portion of the room is darkened during the line-up so that the viewers can observe the participants in the line-up without being seen by the participants. The stage is separated from the viewing area by a Plexiglas shield or a large one-way mirror. When the viewers are ready for a visual line-up, the participants are marched onto the stage with each participant instructed beforehand to stand in a numbered space. Normally, in advance of appearance, the suspect will be given his choice of position in the line-up. When a participant's number is called, he will be instructed by the officer conducting the line-up to take one or two steps forward to a mark in front of him on the stage. The participant will then be told to turn and display his right and left profiles and to face the rear of the stage and display his back. He may also be asked to walk or to don a certain article of clothing.
DEFENDER'S ROLE BEFORE, DURING, AND AFTER THE LINE-UP
In cases where you are allowed to attend a line-up (1) as a matter or right or courtesy, advance preparation is necessary. First, you must have an idea of what should happen at a line-up. I suggest that you download the National Institute of Justice's 55-page 1999 research report Eyewitness Evidence - A Guide for Law Enforcement. This report, written under the auspices of the U.S. Department of Justice by a committee dominated by law enforcement types, sets forth suggestions for law enforcement in conducting identification procedures. Read the report and put a copy of it in your line-up file. This will give you a start in understanding what basic processes of fairness law enforcement should follow in conducting the line-up. The first question you may have is whether you can keep the line-up from happening simply by having your client refuse to participate. If the client is in custody, you are probably out of luck. Since there's no valid privilege against self-incrimination claim for this non-testimonial process, the client who is in grips of the constabulary has no legal ground to object to being displayed to witnesses. If the client is not is custody, the law enforcement authorities would need a probable cause warrant to get custody of the suspected client for a line-up. See Dunaway v. New York, 442 U.S. 200 (1979). Your role as a defense lawyer who attends a police line-up will be shaped by what you anticipate will happen in court when and if you challenge the identification by a motion to suppress illegal identification. If you are to meaningfully attack the line-up procedure, you will need to enough information to recreate the surrounding circumstances of the line-up for the judge or jury. Some of the language of the cases suggests that the role of defense counsel at the line-up is essentially that of a passive observer who merely watches and takes notes. Clearly, you don't call all the shots. However, if the danger of mistaken identification comes from faulty identification procedures that are not intentional, should you actively try to lessen these apparent dangers by calling them to the attention of the law enforcement officers? The level of your involvement will depend on many variables, e.g., you, the potential culpability of your client, how much you know about the police investigation, the attitude of the law enforcement authorities. For example, in some cases you might prefer that the police use unnecessarily suggestive procedures so you can attack them in court. Suppose, for example, that you make numerous suggestions to make the line-up fair, the police comply with all of your suggestions, and all of the eyewitnesses positively identify your client. Have you strengthened the credibility of the identification? Yes. (1 - a psychologist in '07 suggests matters that will make the pretrial identification process more accurate)
- Passive role: Let's assume that you decide to take a passive role in the process. You are there essentially to document improperly suggestive influences or unfair procedures. A small digital and video camera capable of filming in artificial light should be carried in your briefcase. Mini-sized versions of these are available in electronic equipment stores. If your pocketbook permits consider a combination digital camcorder and high-resolution digital camera; the quality of each feature can be quite good; but, for those with an active criminal practice, the cost may justify the business investment. Ideally the lineup should be videotaped. Try to sit in on the preliminary meeting between the witnesses and the police investigators. Record the contact if possible. Make written notes of what happens before, during, and after the line-up. In addition, you should be accompanied by a relatively disinterested and unbiased third party support (prover) witness, e.g., investigator, law clerk, paralegal, etc. If you aren't allowed to videotape the proceedings, your supporting witness may want to carry a small but powerful tape recorder. If so, the support witness may want to turn the tape recorder on when you enter the police station and keep it running throughout the entire identification process. If you have a still camera, preferably digital, photograph each of the line-up participants.
- Active role: If you decide to take a more active role at the line-up, you may determine that it is in your client's best interest to make constructive suggestions prior to the line-up concerning the procedure to be followed. The method of doing this is by a motion (1 - the NYSDA Hot Topics page for recent eyewitness ID cases and downloadable motions) for best practices in line-ups and eyewitness interviews. The motion can set forth the practices that you want the police authorities to follow in performing the eyewitness identification process. What suggestions might you make? This site contains a good summary list of procedures that will make an identification procedure more fair, e.g., ask that every identification witness be kept from communicating with other witnesses: ask that each identification witness be required, before any line-up, showup or photo ID procedure to describe the circumstances (distances, lighting, time, opportunity to view, stress factors) under which s/he viewed the perpetrator; ask that each witness be required to indicate any post-offense, pre-ID information (newspapers, media, police, other witnesses) to which they have been exposed; ask for a sequential (one at a time) (1) presentation of the line-up participants rather than a simultaneous presentation; ask that every stage of the identification process (including warnings to witnesses, photospreads, composite drawing) be videotaped; ask that at least half the foils (distracters) be persons who match the witness' description of the perpetrator rather than simply matching the suspect in appearance, ask that the line-up be conducted by an independent examiner (double-blind) who does not know who the suspect is, ask that the witnesses be told that the perpetrator may not be in the line-up (or photo spread), ask that the witnesses be requested to rate their level of certainty on a percentage basis at every point where an identification is made and before the authorities provide any feedback concerning whether the suspect has been identified by the witness (Note: Level of certainty appears to have no correlation to accuracy of identification. See below); ask that the witnesses be advised that the purpose of the ID procedure includes the opportunity to clear innocent suspects, ask the the witnesses be advised that the investigation of the offense will continue irrespective of whether a positive or negative ID is made, and ask the police not to provide the witnesses with any clues or details that would influence the identification. Ask to be allowed to be present at the pre-line-up and post-line-up conference between the authorities and the witnesses who will view the line-up. If you are in a situation where the defendant's right to counsel has accrued, you can make a cogent argument that the Wade right to counsel should include the right to be present at any pre-line-up briefing and/or post-lineup debriefing of the line-up witnesses.
- Tip: Never try to obstruct the line-up while it is in progress. When a witness is asked for his opinion, remain silent and simply record the officer's questions and the witness' response. But do document and record the following: (1) your suggestions and requests concerning the procedure to be followed in conducting the line-up and the pre-line-up and post-line-up witness conferences with the authorities who are conducting the line-up and (2) the actual conduct of the line-up. Make certain that you also document the official response to your suggestions and/or requests. After the line-up and official debriefing of witnesses, make an effort to interview and obtain a written or recorded statement from each witness.
A COLLATERAL ISSUE - WITNESSES BEING ASKED TO IDENTIFY TANGIBLE OBJECTS THAT ALLEGEDLY CONNECT THE SUSPECT TO THE CRIME
The same sort of fairness issue that attends the overly suggestive identification of suspects should be considered when police ask witnesses to view and identify tangible things or objects, e.g., clothing, jewelry, tattoos, firearms, autos, that might arguably establish an identification nexus between the perpetrator and the suspect. Consider asking that such items be presented to the witness in the form of an array containing similar objects or things.
CAUTION - RAISING THE MISIDENTIFICATION ISSUE MAY BE DISASTROUS IF THE TRIAL COURT ALLOWS THE PROSECUTION TO INTRODUCE EVIDENCE OF UNCHARGED MISCONDUCT TO REBUT THE DEFENSIVE THEORY OF MISIDENTIFICATION
Defense lawyers must research and familiarize themselves with their jurisdiction's (1) approach to permitting the prosecution to introduce evidence of uncharged misconduct of the defendant to rebut defense evidence of misidentification. See for example Rule of Evidence 404(b) in the FRE and the TRE and notice that "identification" is one of the subjects that may permit the introduction of proof of other crimes, wrongs and/or bad acts of a person, e.g., the accused. This can typically occur when the defense introduces evidence of misidentification, e.g , alibi, negative ID, and the prosecution seeks to offer evidence of uncharged misconduct (They call it "extraneous offenses" in Texas.) for the limited purpose of rebutting the defensive theory of misidentification. For example, suppose your client is accused of robbery of a convenience store and one of the eyewitnesses says your client is not the robber. You also locate an alibi witness. Suppose also that your client is arrested the day after the robbery robbing another nearby convenience store using a modus operendi, i.e., manner of operating, very similar to the robbery on trial. By putting on the evidence of misidentification, you may be opening the door for prosecution evidence proving the second robbery. You must know how to litigate the admissibility of the uncharged misconduct under the prevailing rules of evidence and the operative case law. Motions and objections may normally be involved, as will requests for limiting instructions. Be certain to determine the standard of proof necessary for the juror to consider prosecution evidence of other crimes, wrongs, and/or bad acts, e.g., must the jurors first be convinced at the level of "beyond a reasonable doubt" of the existence of the uncharged misconduct evidence before they may even consider it. If the rules of evidence in your jurisdiction approximate those of the FRE, always be prepared to argue the inadmissibility of otherwise admissible uncharged misconduct evidence under the balancing test of Rule 403 FRE.
SUGGESTED APPROACH TO PLANNING AND PREPARING YOUR CROSS OF EYEWITNESS EVIDENCE
As you prepare to cross-examine the eyewitness who identifies your client as the "perp" (Defenders must always refer to the doer as the "perpetrator," never, never, never as the "defendant." ), there are five questions that your should ask yourself. Here they are:
First, what do you want to be able to say to the jury in your opening statement and at the end of the case when you argue concerning the accuracy of the eyewitness identification testimony?
Second, aside from standard instructions regarding the prosecution's burden of proving the defendant guilty beyond a reasonable doubt, what specific jury instructions do you anticipate the trial judge will give in the case regarding the issue of identification? (See below.)
Third, will you be relying solely on cross-examination of the eye-witnesses and the police investigators to establish the basis for you claim of misidentification? With lay witnesses you will be able to establish a matrix of facts concerning such matters as lighting, vision, time to observe, trauma, race, suggestive police practices, intervals between the event and line-up, etc. Will you be able to introduce expert evidence concerning the factors that influence the accuracy of identification testimony in general, e.g., the forgetting curve, the confidence factor, the malleability of confidence, the inflation of confidence, the evolving level of confidence, post-event stress, the span of acquisition, the principle of redundancy, the principle of unconscious transfer, photo-biased identification, etc.? Fourth, what documentation is available concerning the identification? This will include information that you can gather prior to trial, by formal or informal discovery (see Motions) and/or pretrial investigation, about the eyewitness, the perpetrator, your client, the occurrence, and relevant post-occurrence pre-trial events, e.g., show-ups, photo spreads, and line-ups together with any written or unwritten legal instructions delivered to the eyewitness by law enforcement officers; it will also include the information elicited by the prosecutor on direct examination. Fifth, what information, live witness or scholarly research published in scientific or law journals, is available about the factors that can positively or negatively influence an eyewitness' identification of a particular person as a perpetrator of a crime?
A thorough investigation of your case will usually reveal whether mistaken identification will be a focal point of your defensive theory. If you will be attacking the accuracy of eyewitness testimony, you will typically be claiming in opening statement and jury argument that the eyewitness is either mistaken or lying. In most cases, your claim will be that the eyewitness is making a good faith but mistaken identification. In rare cases, you may want to assert in argument that the eyewitness intentionally or knowingly misidentified your client. If you are going to claim that the witness lied, be prepared to offer some proof of motive for the fabrication.
The point is that your cross-examination of the eyewitness and investigatory authorities will be influenced by what you want to argue at the end of the case. You need to know where you are going, so you can plan how to get there and know when you've arrived. You will need to develop factors that cast great doubt on the accuracy of the eyewitness opinion that your client is the perpetrator.
Normally you will want to make arguments that focus on factors that will allow you to urge the jury that there is more than a reasonable doubt about the accuracy of the eyewitness's identification of your client as the person who committed the crime. Your typical strategy in eyewitness cases should focus on the fact that your client did not do the crime, rather than relying on the more legalistic argument that the prosecution failed in its burden of proof. The one great fear that every jury has is the fear of convicting an innocent person. This is the moral value that you must stress from opening to closing. Your demeanor must be consistent with your heartfelt belief that your client is not the perpetrator and that a great injustice will be done if s/he is convicted. [Examples of misidentification arguments]
JURY INSTRUCTIONS RE IDENTIFICATION
Obviously, every trial judge will give the jury an instruction requiring that the prosecution prove the defendant guilty beyond a reasonable doubt. If the prosecution's theory is that the defendant was the perpetrator (what the common law called a "principal in the first degree"), it must prove beyond a reasonable doubt that the defendant was the person who committed the crime. But, are you entitled to more pointed instructions about the requirement of accuracy of identification when your defensive claim is mistaken identification? In light of the recent clear proof in DNA cases that numerous innocent persons have been convicted based on faulty eyewitness identification, one would think that courts, as watchdogs of justice, would be particularly sensitive to the specter of eyewitness misidentification. Indeed, some courts will give specific cautionary instructions regarding the identification issue. Such instructions may emphasize the inherent dangers of eyewitness identification, the necessity of evaluating such evidence with caution, and the requirement that the circumstances of the identification convince the jurors on the identity issue beyond a reasonable doubt. See United States v. Telfarie, 469 F2d 552,558 (D.C. Cir. 1972) (1) (2 - text of Telfaire instruction). See also the pattern instructions used in California in CALJIC 2.91 and 2.92. Judges in what some might characterize as less-enlightened jurisdictions refuse to give instructions on identification. See Roberson v. State, 852 S.W.2d 508 (Tex. Crim. App. 1993) and Moore v. State, 700 S.W.2d 193 (Tex. Crim . App. 1985) where the state high court of views such instructions as illegal comments on the weight of the evidence.
Certain vagaries of eyewitness identification will have more meaning when they are underscored by cautionary jury instructions that inform the jury that eyewitness opinion is not always reliable and should be evaluated with great care. If you think about it, eyewitness identification is nothing more than opinion testimony. It is simply the witness' opinion that a person he saw engaged in a crime is the same person he sees at a later time in court. It is nothing more than an an expression of belief by the witness. The value and credibility of that opinion depends on many factors such as the witness' capacity and adequacy of the opportunity for viewing the perpetrator. The accuracy of the identification also depends on the fairness of the post-offense identification process and the procedures followed at showups, photo displays, and line-ups when the authorities present the defendant to the witness for identification.
Some trial judges may give instructions that approximate the following example:
- " (Emphasis added) In deciding what testimony to believe, consider the witness' intelligence, the opportunity the witness had to have seen or heard the things s/he testified about, the witness' memory, any motives that the witness may have for testifying a certain way, the manner of the witness while testifying, whether the witness said something different at an earlier time, the general reasonableness of the testimony, and the extent to which the testimony is consistent with any evidence that you believe." Think of how you can use your cross-examination of the eye-witness to develop arguments based on each of the emphasized factors.
In California, jurors are instructed concerning the factors to consider in proving identity by eyewitness testimony as follows:
- "(Emphasis added) Eye witness testimony has been received in this trial for the purpose of identifying the defendant as the perpetrator of the crimes charged. In determining the weight to be given eye witness identification testimony, you should consider the believability of the eye witness as well as other factors which bear upon the accuracy of the witness' identification of the defendant, including, but not limited to, any of the following: (1) The opportunity of the witness to observe the alleged criminal act and the perpetrator of the act; (2) The stress, if any, to which the witness was subjected at the time of the observation; (3) The witness' ability, following the observation, to provide a description of the perpetrator of the act; (4) The extent to which the defendant either fits or does not fit the description of the perpetrator previously given by the witness; (5) The cross-racial or ethnic nature of the identification; (6) The witness' capacity to make an identification; (7) Evidence relating to the witness ability to identify other alleged perpetrators of the criminal act; (8) Whether the witness was able to identify the alleged perpetrator in a photographic or physical lineup; (9) The period of time between the alleged criminal act and the witness' identification; (10) Whether the witness had prior contacts with the alleged perpetrator; (11) The extent to which the witness is either certain or uncertain [Moses' Note: The research literature suggests that this factor is of dubious relevance to the reliability of the identification.] of the identification; (12) Whether the witness' identification is in fact the product of his (her) own recollection; (13) (Any other evidence relating to the witness' ability to make an identification.) "
United States v. Telfaire, 469 F.2d 552 (D.Co. Cir. 1972), see above, provides a basis for the following Requested Instruction on Identification:
- One of the most important issues in this case is the identification of the defendant as the perpetrator of the crime. The prosecution has the burden of providing identity, beyond a reasonable doubt. It is not essential that the witness himself be free from doubt as to the correctness of his statement. However, you, the jury, must be satisfied beyond a reasonable doubt of the accuracy of the identification of the defendant before you may convict him. If you are not convinced beyond a reasonable doubt that the defendant was the person who committed the crime, you must find the defendant not guilty. Identification testimony is an expression of belief or impression by the witness. Its value depends on the opportunity the witness had to observe the offender at the time of the offense and to make a reliable identification later. In appraising the identification testimony of a witness, you should consider the following: (1) Are you convinced that the witness had the capacity and an adequate opportunity to observe the offender? Whether the witness had an adequate opportunity to observe the offender at the time of the offense will be affected by such matters as how long or short a time was available, how far or close the witness was, how good were lighting conditions, whether the witness had had occasion to see or know the person in the past. [In general, a witness bases any identification he makes on his perception through the use of his senses. Usually the witness identifies an offender by the sense of sight-but this is not necessarily so, and he may use other senses.] (2) Are you satisfied that the identification made by the witness after the offense was the product of his own recollection? You may take into account both the strength of the identification (Note: This preceding factor is questionable. I would omit it frommy requested instruction.), and the circumstances under which the identification was made. If the identification by the witness may have been influenced by the circumstances under which the defendant was presented to him for identification, you should scrutinize the identification with great care. (3) You may also consider the length of time that lapsed between the occurrence of the crime and the next opportunity of the witness to see defendant, as a factor bearing on the reliability of the identification. [You may also take into account that an identification made by picking the defendant out of a group of similar individuals is generally more reliable than one which results from the presentation of the defendant alone to the witness.] [You make take into account any occasions in which the witness failed to make an identification of defendant, or made an identification that was inconsistent with his identification at trial.] (4) Finally, you must consider the credibility of each identification witness in the same way as any other witness, consider whether he is truthful, and consider whether he had the capacity and opportunity to make a reliable observation on the matter covered in his testimony. I again emphasize that the burden of proof on the prosecutor extends to every element of the crime charged, and this specifically includes the burden of proving beyond a reasonable doubt the identity of the defendant as the perpetrator of the crime with which he stands charged. If after examining the testimony, you have a reasonable doubt as to the accuracy of the identification, you must find the defendant not guilty.
Concerning the issue of cross-racial identification, should the defense be allowed a jury instruction allowing the jury to consider the vagaries of a eyewitness identifying a member of a different race as a perpetrator? The court in State v. Cromedy, 727 A.2d 457 (N. J. 1999) held that it was reversible error under the circumstances of the case to refuse the defendant's requested instruction to this effect:
- You know that the identifying witness is of a different race than the defendant. When a witness who is a member of one race identifies a member who is of another race we say there has been a cross-racial identification. You may consider, if you think it is appropriate to do so, whether the cross-racial nature of the identification has affected the accuracy of the witness's original perception and/or accuracy of a subsequent identification. or In this case, the defendant is of a different race than, the witness who has identified him/her. You may consider, if you think it is appropriate to do so, whether the fact that the defendant is of a different race than the witness has affected the accuracy of the witness’ original perception or the accuracy of a later identification. You should consider that in ordinary human experience, some people may have greater difficulty in accurately identifying members of a different race than they do in identifying members of their own race. You may also consider whether there are other factors present in this case which overcome any such difficulty of identification. (1 - This latter instruction was the product of an ABA committee.)
See also Smith v. State, 880 A.2d 288 (Md. 2005) where the court reversed the conviction because the trial court refused to allow the defense to argue cross-racial identification; the appellate court did not reach the issue of whether it was error to deny the defense's requested instruction on cross-racial identification.
TIP: Defenders in eyewitness identification cases should always ask for an instruction cautioning the jurors on the vagaries of eyewitness identification. Write your own instruction making sure that it is fair in tone. If the trial judge refuses to give your requested instruction, ask the judge to give one of his own. If the judge comes up with an instruction, object to any parts of that are unfair. Make sure that you don't waive your objection either to the court's refusal to give your instruction and or the refusal to give one of its own construction. Also, in cases where eyewitness identification is an important part of the prosecution's case, ask for a jury instruction requiring that the eyewitness testimony be corroborated by other evidence before it can be considered.
REASONABLE DOUBT RE IDENTIFICATION
Misidentification is a "reasonable doubt" defense. In effect, you are contending that there is at least a reasonable doubt as to whether your client committed the alleged crime. Most often, it is your cross-examination of the eyewitness' identification that provides the reasonable doubt that you are seeking. There may be other sources of reasonable doubt, such as the government investigators who prepare and conduct a photo spread or line-up or who stage a one-participant show-up.
How do you achieve your goal of developing reasonable doubt when there has been a positive identification of your client as the perpetrator. You do it by focusing on the factors that weaken the credibility of the eyewitness' opinion. Here are a few suggestions:
The eyewitness: Was the perpetrator someone that the eyewitness knew before the offense, i.e., was he a stranger or a familiar face? Did the eyewitness have only a brief period of time in which to view the perpetrator? Were the eyewitness and the perpetrator of different races? What were the relative positions of the perpetrator and the eyewitness during the event? How far away was the perpetrator when the eyewitness was allegedly able to view him/her? Did the viewing opportunity occur during daytime or at night? If night, what were the lighting conditions? Did the perpetrator use or display a deadly weapon that might excite a fear of violence and distract the eyewitness' attention from the perp's features? How good is the eyewitness' unaided vision? Does the eyewitness wear glasses? How good is the witness' vision with glasses? Had the eyewitness been drinking or taking drugs? Did the eyewitness give an immediate physical description of the perpetrator? If yes, to whom was the description given? What was that initial description? Was the eyewitness interviewed again concerning the physical description of the perpetrator? Did the eyewitness ever change his/her initial description? If so, when? What caused the change in description? Were the physical descriptions consistent? Did the perpetrator allegedly say anything to the eyewitness? What? How much time elapsed between the event and the initial description? Did the eyewitness identify the client as the perpetrator at any time prior to trial? If yes, how was the client displayed, e.g., showup. line-up. or photo display (spread)? Did the authorities allow eyewitnesses to discuss the event and share recollections with one another before the identification was made and, thus, make it possible for the witnesses to buttress and reinforce each others certainty of identification? Did the authorities have the witness look through books of mug shots? Did the witness identify a photo from the mug shot books as the perpetrator? How long after the event was the pretrial identification made? Was it possible that the pretrial and trial identification were the result of unfairly suggestive procedures used by the investigative authorities at the pretrial identification proceedings?
The perpetrator: Was the perpetrator in disguise? Did the perpetrator have any obvious distinguishing characteristics, e.g., tattoos, scars, moles, missing fingers, unusual hair, pierced ear, chipped teeth, gap between teeth, birthmark, etc.? What characteristics, if any, did the perpetrator have that would make him or her distinguishable from others? Does the client share these features? Does the client had distinguishing features that the perpetrator did not have?
The client: Did the client have any passing contact with the eyewitness prior to or after the event that could cause the eyewitness to transfer and confuse this innocent contact with the criminal event?
The investigators: Was there anything that the investigators did that would unduly and improperly influence the eyewitness' identification of your client as the perpetrator? The investigators working to build a case can influence the eyewitness. If there is a photospread (array or display) , showup, or line-up, the investigating authority and the eyewitness will have conversations with one another by phone or in person. The eyewitness doesn't magically appear to view the photo display, showup, or line-up. There has to be contact and social discourse between the investigator and the eyewitness. You would like to know what was said. Some sort of instructions will always be given to the eyewitness by the investigator. In some jurisdictions the instructions will be in writing. If so, get a copy of them. In other jurisdictions, the officers conducting the photo array, showup, or line-up will be allowed to issue impromptu or extemporaneous instructions to the eyewitness. These off-the-cuff instructions are rarely recorded. Also, in cases where there has been an identification, find out whether the investigators without comment allow the identifying eyewitness who has viewed the lineup or photospread to immediately make a clear written statement as to the level of his/her level of certainty that the person identified is the culprit.
A BIG EVIDENTIARY BONE FOR THE PROSECUTION: Out-of-Court Statements of Identification by a Witness Admissible in Court on Direct Examination of the Witness and Others Who Heard the Witness' Statement of Identification
Normally a witness is not allowed to bolster his testimony on direct examination by pointing to previous out-of-court statements that are consistent with his in-court testimony. Nor are other witnesses typically allowed to bolster the testimony of a witness by referring to the witness' out-of-court statements that lend credence to what the witness said in court. However, when a witness has made an out-of-court statement of identification, e.g., the witness identifies a suspected criminal at a lineup or showup, the witness and others who heard the identification witness' statement of identification are allowed to testify in court to the out-of-court identification. This statement of identification scenario comes up most commonly when a victim of crime has made a pretrial identification of the defendant as the perpetrator and is called to testify as an ID witness at the defendant's trial. It can also occur when another person who was present at the witness' pretrial identification of the perpetrator, e.g., the cop who conducted the lineup or showup, is called to testify to the witness' pretrial ID of the defendant, either to bolster the ID witness' in-court ID or, if the witness is not able to make an in-court ID of the defendant, to show that the witness made a positive pretrial identification of the defendant. Although the out-of-court statement of identification typically comes up in connection with eyewitness identification, it is not limited to visual identification. So an out-of-court statement of identification based on the sound of the perpetrator's voice would also be encompassed by the rule of evidence we are discussing here.
The admissibility of a witness' prior statement of identification is governed under the FRE and TRE by
- FRE 801(d)(1)(C) which states, "A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is one of identification of a person made after perceiving the person."
- TRE 801(e)(1)(C) which also states, "A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is one of identification of a person made after perceiving the person."
The admissibility of the witness' out-of-court statement of identification of a person made after perceiving the person hinges on whether the declarant testifies as a witness. If the witness who made the out-of-court ID does not testify, third party witness testimony of the declarant's statement of identification is hearsay and not admissible. If the declarant does testify, he may testify to the out-of- court ID and anyone who heard the out-of-court ID may testify to it. Notice also that the rule declaring statements of identification as non-hearsay does not limit the proof of the declarant's out-of-court statement of identification to situations when the out-of-court statement of identification by the witness is consistent with his in-court ID. The rule refers to "statements of identification." Thus, in the event that an ID witness can swear to his out-of-court identification but is unable to make an in-court ID, a third party who heard the out-of-court ID could testify that that person whom the declarant ID'ed out-of-court is the same person now on trial. See United States v. Owens, 484 U.S.554 (1988) making it clear under the FRE that the out-of-court statement of identification is admissible even though the declarant can no longer identify the defendant as the wrongdoer, provided that the declarant testifies and is subject to cross. Remember that since the out-of-court statement of identification is not hearsay, it comes in as probative evidence for the truth of the matter asserted in it, e.g., "That's the guy who robbed me."
[Caution: These cites are no in Bluebook form. So before you use them in a brief or academic article, check this Bluebook for form. You may findnumerous other articles, particularly current aticles by behaviorial psychologists, in the Guide to Current Law review Content.]
+ Flowe et al., The Role of Eyewitness Identification Evidence in Felony Case Dispositions, 17 Psychology, Public Policy and Law 140 (2011).
+ Joffee, Long Overdue: Utah's Incompetence Approach to Eyewitness Identification and Suggestions for Reform, 2010 Utah Law Review 443.
+ Raban, On Suggestive and Necessary Identification Procedures, 37 American Journal of Criminal Law 53 (2009-2010).
+ Dahl et al., Investigating Investigators: How Presentation Order Influences Participant-Investigators' Interpretation of Eyewitness Identification and Alibi Evidence, 33 Law & Human Behavior 368 (2009).
+ Douglas, "That's What She Said": Why Limiting the Use of Uncorroborated Eyewitness Identification Testimony Would Prevent Wrongful Convictions in Texas, 41 Texas Tech Law Review 561 (2009).
+ Gee, Cross-Racial Eyewitness Identification, Jury Instruction and Justice, 11 Rutgers Race and the Law Review 70 (2009).
+ Hasel & Kassin, On the Presumption of Evidentiary Independence: Can Confessions Corrupt Eyewitness Identifications?, 20 Psychological Science 122 (2009).
+ Koosed, Reforming Eyewitness Identification Law and Practices to Protect the Innocent, 42 Creighton Law Review 595 (2009).
+ Wells et al, Suggestive Eyewitness Identification Procedures and the Supreme Court’s Reliability Test in Light of Eyewitness Science: 30 Years Later, 33 Law & Human Behavior 1 (2009).
+ Garrett, Judging Innocence, Columbia Law Review, Vol. 108, page 55 (2008).
+ Mourer, Reforming Eyewitness Identification Procedures Under the Fourth Amendment, 2 Duke Journal of Constitutional Law & Public Policy 49 (2008).
+ Schacter et al., Policy Forum: Studying Eyewitness Investigations in the Field, 32 Law & Human Behavior 3 (2008).
+ Thompson, What Price Justice? The Importance of Costs to Eyewitness Identification Reform, 41 Texas Tech Law Review 33 (2008).
+ Clements, Flipping a Coin: A Solution for the Inherent Unreliability of Eyewitness Identification Testimony, 40 Indiana Law Review 271 (2007).
+ Duke, Lee & Pager, A Picture's Worth a Thousand Words: Conversational Versus Eyewitness Testimony in Criminal Convictions, American Criminal Law Review, Volume 44, No. 1, page 1 (2007).
+ Wise et al, A Tripartite Solution to Eyewitness Error, 97 Journal of Criminal Law & Criminology 807 (2007).
+ Benton et al., On the Admissibility of Expert Testing on Eyewitness Identification: A Legal and Scientific Evaluation, 2 Tennessee Journal of Law & Public Policy 392 (2006).
+ Douglass et al, Memory Distortion in Eyewitnesses: A Meta-Analysis of the Post-identification Feedback Effect, 20 Applied Cognitive Psychology 859 (2006).
+ O'Toole, et al., Manson v. Brathwaite Revisited: Towards a New Rule of Decision for Due Process Challenges to Eyewitness identification Procedures, 41 Valpariso University Law Review 109 (2006).
+ Symposium, Reforming Eyewitness identification: Convicting the Guilty, Protecting the Innocent, 4 Cardozo Public Law, Policy, and Ethics Journal 271 (2006).
+ Brimacombe, Jung, Garrioch, & Allison, Perceptions of Older Adult Eyewitnesses: Will You Believe Me When I'm 64?, 27 Law & Human Behavior 507 (2003).
+ Higgins & Skinner, Establishing the Relevance of Expert Testimony Regarding Eyewitness Identification: Comparing Forty Recent Cases with the Psychological Studies, Northern Kentucky Law Review. Volume 30, No. 4, page 471 (2003).
+ Henry & Gudjonsson, Eyewitness Memory, Suggestibility, and Repeated Recall Sessions in Children with Mild and Moderate Intellectual Disabilities, 27 Law & Human Behavior,481 (2003).
+ Koch, Process v. Outcome: The Proper Role of Corroborative Evidence in Due Process Analysis of Eyewitness Identification Testimony, 88 Cornell Law Review 1097 (2003).
+ Steblay, Dysart, Fulero, & Lindsay, Eyewitness Accuracy Rates in Police Showup and Lineup Presentations: A Meta-Analytic Comparison, 27 Law & Human Behavior 523 (2003).
+ Koosed, The Proposed Innocence Protection Act Won’t Work—Unless it also Curbs Mistaken Eyewitness Identification, 63 Ohio State Law Journal 263 (2002).
+ Sussman, Lineup Procedures and the Abdication of Judicial and Prosecutorial Responsibility for Improving the Criminal Justice System, New York University Review of Law & Social Change, Volume 27, No. 4 (2001-2002).
+ Behrman et al, Eyewitness Identification in Actual Criminal Cases: An Archival Analysis, 25 Law & Human Behavior 475 (2001).
+ Wells et al, Eyewitness Identification Procedures:Recommendations for Line-Ups and Photo Spreads, 22 Law & Human Behavior 603 (1998).
+ Shaw, Repeated Postevent Questioning Can Lead to Elevated Levels of Eyewitness Confidence, 20 Law & Human Behavior 629 (1996).
+ O'Hagan, When Seeing Is Not Believing: The Case for Eyewitness Expert Testimony, 81 Georgetown Law Journal 741 (1993).
+ Annot., ADMISSIBILITY, AT CRIMINAL PROSECUTION, OF EXPERT TESTIMONY ON RELIABLITY OF EYEWITNESS TESTIMONY, 46 A.L.R.4th 1047.
+ Annot., NECESSITY OF, AND PREJUDICIAL EFFECT OF OMITTING, CAUTIONARY INSTRUCTION TO JURY AS TO RELIABILITY OF, OR FACTORS TO BE CONSIDERED IN EVALUATING, EYEWITNESS IDENTIFICATION TESTIMONY - STATE CASES, 23 A.L.R.4th 1089.
A SMATTERING OF INDENTIFICATION/LINEUP CASES
Here''s a smattering of cases re identification/lineups from various federal circuits: United States v. Garcia -Alvarez, 541 F.3d 8 (1st Cir 2008); Jenkins v. City of New York, 478 F.3d 76 (2nd 2007); United States v. Flenory, 619 F.2d 301 (3rd Cir. 1980); United States v. Anderson, 406 F.2d 719 (4th Cir. 1969); Coleman v. Quarterman, 456 F.3d 537 (5th Cir. 2006); Haliym v. Mitchell, 492 F.3d 680 (6th Cir. 2007); United States v. Williams, 522 F.3d 809 (7th Cir. 2008); United States v. Staples, 410 F.3d 484 (8th Cir. 2005); United States v. Bowman, 215 F.3d 951 (9th Cir. 2000); United States v. Holsey, 414 F.2d 458 (10th Cir. 1969); Meeks v. Moore, 216 F.3d 951 (11th Cir. 2000); United States v. Washington, 353 F.3d 42 (C.A.D.C. 2004).
WEB RESOURCES RE (MIS)IDENTIFICATION
+ Book: If you want to read a book on memory by a true expert rather than the folks who have made a cottage industry of eyewitness identification, buy a copy of The Seven Sins of Memory: How the Mind Forgets and Remembers (2001) by Daniel Schacter, former chair of Harvard University's Psychology Department and a leading memory researcher (ISBN 0-618-21919-6). No matter whether you are a prosecutor or defender, on the issue of identification this book will be a mind-opener. If you can find it, another good one is Memories Are Made of This: The Biological Building Blocks of Memory by Rusiko Bourtchouladze (2004).
+ Articles on the Internet: James Doyle, No Confidence: A Step Toward Accuracy in Eyewitness Trials (1998); Kassin, Saul et al, On the General Acceptance of Eyewitness Testimony Research (2001); Wells, Gary Mistaken Eyewitness Identification: Scientific Findings and the Case for Improvements in How Lineups Are Conducted; Wells, Gary, et al, Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads (1998) ; Wells, Gary & Olsen, Elisabeth, Eyewitness Identification (2003); Disputed Eyewitness Identification Evidence:Important Legal and Scientific Issues (1999); Errors in Eyewitness ID Procedure (2004); Eyewitness Identification: Systemic Reform (2006 Wisconsin Law Review article); Schacter, Daniel, et al, Studying Eyewitness Investigations in the Field, (2007); here is a panoply of papers on eyewitness identification collected by Professor Steven Penrod (1), (2) one of the outstanding researcher writers (1) in the field. Here are articles on The Use of Eyewitness Research in the Courts, A History of Eyewitness Behavior, and Eyewitness Memory Research:Probative v. Prejudicial; this forensic psychology editor's site contains pdf and html downloads. Fradella, Henry, Why Judges Should Admit Expert Testimony On the Unreliability of Eyewitness Testimony. Also check out the NACDL publication,The Champion, for free online articles (1 - What Do Jurors Understand About Eyewitness Reliability? (2005) and (2 -Trying Identification Cases: An Outline For Raising Eyewitness ID Issues) on the subject of eyewitness misidentification. See also (1), (2 - These actions of the Suffolk County, MA, public prosecutor in improving the fairness of the police eyewitness ID process should be a beacon for other prosecutors around the country.), (3), (4 - Wiki information on repressed memory), (5 - Wiki information on eyewitness identification), (6 - SSRN), (7 - pdf on cross-racial ID), (8 - cross-race effect), (9- cross-race bibliography) + If you are writing a brief in a post-conviction collateral attack on a conviction based on mistaken eyewitness identification, be sure to take a look at this amicus brief filed pro bono by the giant Cicago civil firm Jenner & Block. + Check out the New York public defender's eyewitness evidence hot topic page that discusses the acceptance by some courts and prosecutor's offices of the sequential lineup (In a sequential lineup or photospread the eyewitness views one line-up member or photograph at a time (sequentially) and makes a determination whether the person or photograph being viewed is or is not the perpetrator before viewing another member of the line-up or another photograph.) and the double-blind line-up. (The double-blind line-up or photospread is one in which the administrator who conducts the line-up or photospread does not know the identity of the true suspect and, therefore, cannot give unintentional cues to the witness who is viewing the line-up.) [Note: Eventually these two variations will be accepted in every community where fairness of the pretrial identification procedure is desired. It will not happen on its own. Local defenders or their organizations will have to make it occur formally by seeking approval and a mandate from the courts or by securing a legislative mandate or, informally, by working with the prosecutor's office and/or the local law enforcement authorities. Seattle and Boston have recently implemented reforms in their police identification procedures. Wisconsin and Illinois have made statewide efforts to reform their eyewitness identification process. Take a look at New Jersey's Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedure along with several other interesting articles on subject of misidentification on psychologist Fulero's site. In State v. Delgado, 902 A.2d 888 (N.J. 2006), New Jersey's Supreme Court used its rule making power to set up requuired foundations for prosecution proof with a witness who testifies to an out-of-court identification. North Carolina is aboard with a statewide NC eyewitness I. D. reform act. Suggestion to defenders: If you are a defender and have a case in which a line-up or photospread is scheduled, before the line-up or spread is held file a written motion with a court seeking an order requiring a sequential, double-blind line-up or spread, and, also, present a written request for the sequential, double-blind lineup or spread to the law enforcement authorities who will conduct the line-up of spread. Also, move that the eyewitnesses viewing a line-up or photo display be expressly informed that the suspected perpetrator may not be in the line-up or photo display and that the eyewitnesses should not assume that the administrator of the line-up or photo display knows which person is the perpetrator.] + Extensive bibliographies (1 - UTEP), (2), (3), (4), (5), (6 - NYSDA), (7 - NLADA), (8 - NACDL), (9 - American Psychology -Law Society) of source material re eyewitness identification. More articles on the web: (1 - mistaken id), (2 - use of experts re ID reliability), (3 - use of eyewitness research in the courts), (4 - eyewitness testimony and memory re the Kennedy assassination), (5 - - 6 - expert identification testimony), (7 - Tips on trying an identification case), (8 - some insights that make the sample transcript of direct and cross-examination of an expert on eyewitness testimony more useful), (9 - the prosecutor's view), (10 - The Eyewitness Consortium at UTEP), (11 - a prosecutor's view), (12), (13), (14 - eyewitness error/criminal justice course), (15 - re-cross of eyewitness), (16 - examples of blurred distance vision), (17 - 142 PowerPoint slides), (18 - effects of old age on memory citing Mark Twain's "...my faculties are decaying now, and soon I shall be so I cannot remember any but the things that never happened. It is sad to go to pieces like this, but we all have to do it." ), (VIDEO - testimony of repressed memory induced by hypnosis maybe inadmissible in some jurisdictions). + Folks, this one is fun! Psychology Professor Simons at the University of Illinois has filmed a group of scenes that graphically demonstrate the extent to which we humans experience inattentional blindness - the failure to notice unusual and salient events when our attention is otherwise engaged and the events are unexpected. Go to viscog page, read about the experiments, and look at the demos used for his experiments. They highlight errors in visual cognition, perception, etc. A DVD disc is available; price varies according to whether the proposed use is academic or commercial. It's amazing how weak perception may be. Could and would you use any of these demo clips as in-court experiments in connection with the testimony of an eyewitness identification expert ? Here is a VIDEO - 20-minute BBC test of memory - wouldn't it be interesting to give it to each eyewitness and each juror in an eyewitness case. Here's another online test of memory, vision and face recognition. + Information on the emerging field of facial recognition technology. (1), (2), (3 - face research), (4 - short-term memory for faces), (5 - facelab) + For a splendid bibliography of research in the field of false memories and eyewitness testimony, consult this site compiled by the False Memory Lab at the University of Arkansas. You will find summaries of the text of many relevant, fascinating articles on Professor Lampien's False Evidence Reading Group page. [These optical illusions (1), (2), (3), (4), (5 - VIDEO) (6 - VIDEO) (7- VIDEO -Hallucination) are proof that our eyes a can play tricks on us.] Here's a lecture on vision from an MIT psychology course.