Eyewitness Identifications – Credible or Problematic?

In the American criminal justice system, a critical component that helps to promote fair and orderly trials, and to prevent convictions based upon such errors or procedural defects as mistaken eyewitness identification, is the right of criminal defense lawyers to file motions to suppress “suggestive” eyewitness identifications. The term suggestive in criminal-law refers to procedures or conduct by law enforcement officials that unfairly influences a witness to reach a desired conclusion.

A motion to suppress is a request to the court to prevent evidence from being admitted at trial on the basis that it was obtained improperly. These motions are typically filed by criminal defense attorneys in order to keep certain unfairly or illegally obtained evidence from being presented at trial. A motion to suppress must be supported by arguments or facts that demonstrate the unreliability of the evidence or violations of due process under the Fifth and Fourteenth Amendments. For example, a lawyer may file a motion to suppress statements that the police obtained from a defendant during an interrogation, before which the defendant was not properly informed of his constitutional rights. This procedure may also be used to exclude improper witness-identification evidence.

A pre-trial identification procedure by a witness of a crime violates one’s due process rights when the procedure is excessively suggestive and the suggestiveness of the procedure creates a risk of mis-identification. In cases where the identification procedures used by governmental agents are so impermissibly suggestive, the Supreme Court has held that the prosecution had denied the accused the due process of law. Where identity is at issue in a case, an accused may move to suppress any in-court identification testimony that is tainted by out-of-court error by the prosecution. For instance, in a case in which an out-of-court photographic display was overly suggestive or unfair, the defense may file a motion to suppress in-court identification that is the result of that out-of-court identification, on the basis that suggestive pretrial photo-display procedures improperly taint in-court identifications, sufficient to deny the accused his Constitutionally protected right to due process of law.

Some examples of unduly suggestive pre-trial identification procedures include:

• An officer makes comments prior to, during, or following the identification procedure that suggests that the suspect is “the one”;
• The suspect stands apart from the others in a lineup or photographic array based on any uniquely identifying characteristic or he/she is the only one fitting the description that was previously provided;
• The suspect is shown alone to the witness in an identification procedure (called a “show up”);
• The police indicate to the witness that they had other evidence that implicated the suspect or that they had the suspect in custody;
• Several witnesses jointly participate in the identification procedure;
• The police influence an uncertain witness’s identification by repeating the procedure or by asking for a more definite answer.

An identification may also be suppressed on the ground of fundamental fairness, even where there has been no procedural violations by law enforcement. Therefore, just on the basis of fairness alone, if the identification is so unreliable that it would be fundamentally inequitable to admit it, the identification may also be suppressed.

Before admitting an in-court identification into evidence, the prosecution must demonstrate, by clear and convincing evidence, that the in-court identification has an independent basis from the unlawful out-of-court identification. In determining whether an in-court identification procedure is independent, the court considers factors, including the witness’s degree of attention and perception; the witness’s opportunity to visualize the suspect at the time of the alleged crime; the witness’s degree of certainty of the accuracy of the identification; the consistency between the witness’s prior description of the suspect and the appearance of the identified suspect; and the time elapsed between the alleged crime and the in-court identification.

If you or a loved one has been charged with a crime, contact the attorneys at Tanner Law Offices at (717) 731-8114 to discuss your rights and if a motion to suppress may be appropriate in your case