There is a hotly
contested battle between the prosecution and the defendant on the reliability
of various types of identification procedures.
Anyone in the criminal field will have heard about a photo array or a
lineup. However, there is one type of
procedure that seems to fly under the radar: the in-court identification. This presents a real due process concern
because even though eyewitness testimony is unreliable and open to post
experience suggestion, it is still very persuasive to juries. Further, an in-court identification is much more dramatic than a pretrial identification procedure and thus has the
potential to compound the persuasiveness to juries.
The issue with any
identification procedure is whether it is unduly suggestive and would violate
the defendant’s due process rights. The
United States Supreme Court has laid out the process for assessing a violation
of such rights in Neil v. Biggers. The burden rests on the defendant to show why
the identification was unduly suggestive.
If the burden is proven, the prosecution has the opportunity to argue
the credibility of the identification by balancing the five factors the Court
has outlined under the totality of the circumstances. The factors are: (1) the witness's
opportunity to view the criminal at the time of the crime; (2) the witness's
degree of attention at the time of the crime; (3) the accuracy of the witness's
prior description of the defendant; (4) the witness's level of certainty when
identifying the suspect at the confrontation; and (5) the length of time that
has elapsed between the crime and the confrontation.
The
Biggers test has been primarily used for out of court identifications, but is
there an argument to be made that an in-court identification is unduly
suggestive on its face? The United
States Supreme Court has declined to hear the case, but there are several
theories that have developed in differing jurisdictions.[1] United States v. Archibald, a second circuit bank robbery case, analyzes the issue and
recognizes there is a due process concern with the defendant sitting alone at
the counsel table. The court realizes that this type of in-court
identification could easily amount to a show up lineup, which is generally
inadmissible. It ruled that in this
case, the identification was “so clearly suggestive as to be impermissible.”
Both the sixth and
eighth circuits have addressed the issue to a degree. Both jurisdictions seemed to have sidestepped
the in-court identification issue by the same means. The eighth circuit recognized in United States v. Rundell that the witness’s knowledge that it was the defendant
sitting at the counsel table made the in-court identification inherently
impermissibly suggestive. However, the court applied the Biggers test
to the case and ruled that the five factors together with the totality of the
circumstances outweighed any prejudice and the identification was sufficiently
reliable. The sixth circuit similarly recognized the
potential for prejudice in an unduly suggestive in-court identification. In United States v. Hill, the court ruled
that the analysis of any in-court identification would essentially be the same
as pretrial identification procedures. Thus, they would be governed by the same
Biggers totality of the circumstances test.
These beliefs are in
sharp contrast to the other side of the coin.
Other jurisdictions have denied hearings to suppress in-court
identifications. Maryland is an example
of the thought pattern of this argument.
The court in Green v. State has ruled that a taint hearing applies only
to extrajudicial identifications and not in-court identifications. The court outlined the correct way to deal
with a purportedly tainted in-court identification properly was through
cross-examination. The court pointed out
that effectually, an in-court identification is no different than any other
piece of evidence and cross-examination is the appropriate way to alleviate any
due process concerns. Note that Green was later reversed and
declared a mistrial because the prosecutor committed error after specifically
agreeing not to ask any questions about an in-court identification but did so
anyway.
So is there a stick
caught in the cog of due process? It
seems to at least some degree there is.
While even the more reserved courts recognize that it could be a
problem, they have allowed old remedies such as cross-examination to deal with
the issue. However, it seems that many
jurisdictions view the in-court identification procedure either on par with
other extrajudicial identification procedures, or even more prejudicial. Practitioners should check the case law in their
jurisdiction to see what methods are available to them for suppressing any
in-court identification.
Michael Bayern
Junior Staffer, Criminal Law Practitioner
It will be interesting to see if the Supreme Court ever decides to decide this murky area. Since you suggest that circuit courts are split on how much scrutiny to apply to in-court identifications.
ReplyDeleteI agree. I think personally think they are prejudicial and would very much like to know how the supreme court views it. Obviously there are two sides to the story and merits on both. Hopefully we will be able to see the day this happens.
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