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         Wm. Reagan Wynn

         The Kearney Law Firm
        505 Main Street, Suite 220
        Fort Worth, Texas 76102
             (817) 336-5600
          (817) 336-5600 (fax)

    Criminal Defense Lawyer’s Project
  Developing the Theory of the Case
                                            EYEWITNESS IDENTIFICATIONS: THE LEGAL FRAMEWORK
                                                                                       PAGE 1

I.     Introduction                                 U.S. 51, 72 n.8 (1988) (Brennan, J.,
                                                    dissenting) (quoting ELIZABETH LOFTUS ,
       The vagaries of eyewitness                   EYEWITNESS TESTIMONY 29 (1979)).
       identification are
       well-known; the annals of                            This paper will set out the legal
       criminal law are rife with                   frame work for analysis of three issues
       instances of mistaken                        arising with eyewitness identification
       identification. Mr. Justice                  testimony: (1) the right to counsel during
       Frankfurter once said: “What                 identification procedures, (2) the due
       is the worth of identification               process requirement that identification
       testimony even when                          procedures not be suggestive, and (3) the
       uncontradicted? The                          evidentiary rules and statutes applicable to
       identification of strangers is               testimony concerning out-of-court
       proverbially untrustworthy.                  identifications.
       The hazards of such
       testimony are established by                 II.    Right to Counsel at Identification
       a formidable number of                              Procedure
       instances in the records of
       English and American trials.                        A. “In all criminal prosecutions,
       These instances are recent --                       the accused shall enjoy the right . . .
       not due to the brutalities of                       to have the assistance of counsel for
       ancient criminal procedure.”                        his defence.” U.S. CONST. amend.
                                                           VI.       Further, “today’s law
United States v. Wade, 388 U.S. 218, 228                   enforcement machinery involves
(1967) (quoting H O N .           F ELIX                   critical confrontations of the
FRANKFURTER, THE CASE OF SACCO AND                         accused by the prosecution at
VANZETTI 30 (1927)).                                       pretrial proceedings where the
                                                           results might well settle the
        Despite these “well-known vagaries”                accused’s fate and reduce the trial
and the fact that such testimony is                        itself to a mere formality.” See
“proverbially untrustworthy”, eyewitnesses                 Wade, 3 8 8 U . S . a t 2 2 4 .
get on the stand in courtrooms all across                  Consequently, the Sixth Amendment
this country and, with all the attendant                   guarantees the right to counsel at all
drama, point at the defendant in open court                “critical stages” of the criminal
and say “that’s the man.” Such testimony is                proceedings. See id. An out-of-
particularly damning because, “there is                    court identification line-up is a
almost nothing more convincing than a live                 “critical stage” of the proceedings.
human being who takes the stand, points a                  See Wade, 388 U.S. at 236-37;
finger at the defendant, and says, ‘That's the             Gilbert v. California, 388 U.S. 263,
one!’” See Arizona v. Youngblood, 488                      272 (1967). Therefore, under the
                                                                              PAGE 2

       Sixth Amendment, both the                 C. The Sixth Amendment right to
       suspect and his or her                    counsel attaches “only at or after the
       attorney should be notified               time that adversary judicial
       of an impending line-up                   proceedings have been initiated.”
       procedure, and presence of                See Kirby v. Illinois, 406 U.S. 682,
       the attorney at the line-up is            688 (1972). Thus, there is no right
       mandatory. See Wade, 388                  to have counsel present at an
       U.S. at 237.                              identification procedure conducted
                                                 before the “start of adversarial
       ! The policy behind the                   proceedings.” See id. at 689-90.
       Wade and Gilbert decisions
       is that having an attorney                       ! Initiation of “adversary
       present will often “avert                        judicial proceedings” can
       prejudice and assure a                           occur several ways: by
       meaningful confrontation at                      formal charges being filed, a
       trial.” See Wade, 388 U.S.                       preliminary hearing being
       at 237. In other word, the                       conducted, indictment,
       attorney will be there to                        information, or arraignment
       witness the procedures                           of the accused. See Texas v.
       utilized by the police and to                    Cobb, 121 S. Ct. 1335, 1340
       provide helpful advice to the                    (2001) (quoting McNeil v.
       police to insure that those                      Wisconsin, 501 U.S. 171,
       procedures are not unduly                        175 (1991)).
       suggestive. As the Court
       noted, “[i]n our view counsel                    ! There has been no “start of
       can hardly impedelegitimate                      adversarial proceedings”
       law enforcement . . . .”                         simply because a person has
       Wade, 388 U.S. at 238                            been detained by the police
       (emphasis added).                                who intend to file charges
                                                        against him. See Griffith v.
B. The Fifth Amendment privilege                        State, No. 1957-98, slip op.
against self-incrimination is NOT                       at      , 2001 WL 1090773
implicated by identification                            at *3 (Tex. Crim. App.
procedures because forcing the                          September 19, 2001) (citing
accused to stand in a line-up “is                       United States v. Gouveia,
compulsion of the accused to                            467 U.S. 180, 187-90
exhibit his physical characteristics,                   (1984)).
not compulsion to disclose any
knowledge he might have.” See                    D. Despite the policy concerns
Wade, 388 U.S. at 222-23.                        justifying the presence of counsel at
                                     EYEWITNESS IDENTIFICATIONS: THE LEGAL FRAMEWORK
                                                                                PAGE 3

       a lineup articulated in Wade,                      any identification prior to
       there is no right to have                          lineup of another person, (4)
       counsel present for                                the identification by picture
       identification procedures                          of the defendant prior to the
       that do not require the                            lineup, (5) failure to identify
       presence of the accused, i.e.                      the defendant on a prior
       photo spreads. See United                          occasion, (6) the lapse of
       States v. Ash, 413 U.S. 300,                       time between the alleged act
       321 (1975).                                        and the lineup identification,
                                                          and (7) “those facts which,
E. If there was a Sixth Amendment                         despite the absence of
violation under Wade/Gilbert and                          counsel, are disclosed
their progeny, evidence of the                            concerning the conduct of
tainted out-of-court identification is                    the lineup”. See Wade, 388
per se inadmissible. See Moore v.                         U.S. at 241.
Illinois, 434 U.S. 220, 231 (1977);
Gilbert, 388 U.S. at 272-73.                              ! The prosecution carries
However, even in light of a                               the burden of proving by
Wade/Gilbert violation, a witness’                        clear and convincing
in-court identification is admissible                     evidence that an in-court
if the prosecution can show that the                      identification is derived
in-court identification was derived                       from an independent source.
from sources independent of the                           See Wade, 388 U.S. at 240;
illegal identification procedure, i.e.,                   Lucas v. Texas, 451 F.2d
that the in-court identification is not                   390, 391 (5th Cir. 1971),
“fruit of the poisonous tree”. See                        cert. denied, 406 U.S. 949
Wade, 388 U.S. at 241 (quoting                            (1972); Martinez v. State,
Wong Sun v. United States, 371                            437 S.W.2d 842, 849 (Tex.
U.S. 471, 487-88 (1963)).                                 Crim. App. 1969).

       ! Several factors are                       F. A suspect may waive his right to
       considered in determining if                have counsel present for a lineup
       the in-court identification is              under the Wade/Gilbert rule. See
       derived from an independent                 Wade, 388 U.S. at 237. However,
       source: (1) the witness’                    that waiver is only valid if it
       prior opportunity to observe                constitutes an “intentional
       the alleged criminal act, (2)               relinquishment or abandonment of a
       the existence of any                        known right or privilege.” See
       discrepancy between any                     Johnson v. Zerbst, 304 U.S. 458,
       pre-lineup description, (3)                 464 (1938).
                                           EYEWITNESS IDENTIFICATIONS: THE LEGAL FRAMEWORK
                                                                                      PAGE 4

       G. PROCEDURAL WARNING!!!                          factor contributing to the
       — In federal court, a pretrial                    high incidence of
       Motion to Suppress must be filed to               miscarriage of justice from
       preserve the right to complain about              mistaken identification has
       identification testimony. See FED.                been the degree of
       R. CRIM. P. 12(b)(3). Failure to file             suggestion inherent in the
       a pretrial Motion to Suppress                     manner in which the
       constitutes waiver of the right to                prosecution presents the
       raise the issue at trial. See, e.g.,              suspect to witnesses for
       FED. R. CRIM. P. 12(f); United                    pretrial identification.
       States v. Chavez-Valencia, 116
       F.3d 127, 129-31 (5 th Cir.), cert.         Wade, 388 U.S. at 228.
       denied, 522 U.S. 926 (1997). In
       state court, on the other hand, a                 A. A criminal defendant may claim
       timely objection at trial is sufficient           that a identification procedure
       to preserve the right to complain                 conducted was “so unnecessarily
       about identification testimony. See,              suggestive and conducive to
       e.g., Roberts v. State, 545 S.W.2d                irreparable mistaken identification
       157, 158 (Tex. Crim. App. 1977)                   that he was denied due process of
       (“The defendant’s counsel may                     law.” See Stovall v. Denno, 388
       either file a pretrial motion to                  U.S. 293, 301-02 (1967). However,
       suppress evidence or he may wait                  “[c]onvictions based on eyewitness
       until the trial on the merits and                 identification at trial following a
       object when the alleged unlawfully                pretrial identification [procedure]
       obtained evidence is offered.”).                  will be set aside on that ground only
                                                         if the . . . procedure was so
III.   Suggestiveness of Identification                  impermissibly suggestive as to give
       Procedures                                        rise to a very substantial likelihood
                                                         of irreparable misidentification.”
       [T]he confrontation                               See Simmons v. United States, 390
       compelled by the State                            U.S. 377, 384 (1968). In other
       between the accused and the                       words, there is no per se rule of
       victim or witnesses to a                          exclusion for identifications
       crime to elicit identification                    stemming from suggestive
       evidence is peculiarly                            identification procedures.        See
       riddled with innumerable                          Manson v. Brathwaite, 432 U.S.
       dangers and variable factors                      98, 109-14 (1977)
       which might seriously, even
       crucially, derogate from a                        B. “[R]eliability is the linchpin in
       fair trial. . . . . A major                       determining the admissibility of
                                                                       PAGE 5

identification testimony.”                       or photospreads and did not
Manson, 432 U.S. at 114. A                       misidentify anyone. See
totality of the circumstances                    Neil, 409 U.S. at 201.
test is utilized to determine
if an identification is                          ! The danger of
“reliable” even though it was                    misidentification is
based upon a suggestive                          increased if the
identification procedure.                        identification procedure is
See Manson, 432 U.S. at                          such that the witness is only
114; Neil v. Biggers, 409                        shown one suspect or if one
U.S. 188, 199-200 (1972).                        subject sticks out among the
Under this test, several                         others in the identification
factors are weighed against                      procedure. See Simmons,
the corrupting effect of the                     390 U.S. at 383 (danger of
suggestive identification                        misidentification increased
procedure: (1) the                               where “police display to the
opportunity of the witness to                    witness only the picture of a
view the criminal at the time                    single individual who
of the crime, (2) the witness’                   generally resembles the
degree of attention, (3) the                     person he saw, or if they
accuracy of the witness’                         show him the pictures of
prior description of the                         several persons among which
criminal, (4) the level of                       the photograph of a single
certainty demonstrated by                        such individual recurs or is
the witness at the                               in some way emphasized”);
identification procedure, and                    Stovall, 388 U.S. at 302
(5) the length of time                           (“The practice of showing
between the crime and the                        suspects singly to persons
confrontation. See Manson,                       for the purpose of
432 U.S. at 114; Neil, 409                       identification, and not as part
U.S. at 199-200; Garza v.                        of a lineup, has been widely
State, 633 S.W.2d 508, 512-                      condemned.”).
13 (Tex. Crim. App. 1982)
(panel op.).                                     ! Think about this in terms
                                                 of a situation where there
! The length of time can be                      was no pretrial identification
overcome if the witness has                      — wouldn’t the in-court
a track record of reliability,                   identification be essentially
i.e., if the witness has been                    a one-man “show-up”? See
shown several other line-ups                     Johnson v. McCaughtry, 92
                                                                PAGE 6

F.3d 585, 597 (7th                        ! The danger of
Cir.), cert. denied,                      misidentification is likewise
519 U.S. 1034                             increased if the police
(1996) (where                             indicate to the witness that
witness was unable to                     they have other evidence
identify suspect’s                        linking a given suspect to the
photograph, but                           crime. See Simmons, 390
picked him out in                         U.S. at 383.
court, where he was
sitting next to his                       ! Some courts have adopted
attorney at the                           the strength of the other
defense table --                          evidence against the
“Obviously such                           defendant as another “factor”
identifications appear                    not enumerated in Neil that
much less reliable                        can be considered in
than fair line-ups and                    determining if an
photo arrays.”);                          identification is reliable.
United States v.                          Compare Gilday v.
Archibald, 734 F.2d                       Callahan, 59 F.3d 257, 270
938, 941-43 (2 nd                         (1st Cir. 1995), cert. denied,
Cir.), clarified on                       516 U.S. 1175 (1996)
reh’g, 756 F.2d 223                       (identification reliable
(2nd Cir. 1984) (in                       despite suggestiveness where
situation where                           defendant made admissions),
identity is in issue, a                   with United States v.
timely motion was                         Emanuele, 51 F.3d 1123,
filed addressing the                      1128 (3d Cir. 1995) (other
issue, and the witness                    evidence of guilt not
has not had the                           weighed in reliability
opportunity to view a                     calculus).
fair out-of-court
lineup or photospread                     ! In Foster v. California,
prior to testifying,                      394 U.S. 440, 443-44
court should allow                        (1969), the Court found a
some type of special                      due process violation on
identification                            suggestiveness grounds
procedure to insure                       where there were three
accurate in-court                         different identification
identification).                          procedures. During the first
                                          procedure, a suggestive
                                                                      PAGE 7

       lineup, the witness                      procedure               was
       failed to identify the                   impermissibly suggestive.
       suspect. During the                      Second, if the defendant
       second, a one man                        proves that the identification
       “show-up,” the                           procedures             were
       witness could only                       impermissibly suggestive,
       make a tentative                         the trial court must
       identification of                        determine whether, under the
       suspect. Undeterred,                     totality           of    the
       the police arranged a                    circumstances, the
       lineup at which the                      testimony was nevertheless
       witness finally was                      reliable.” See United States
       able to identify the                     v. Hill, 967 F.2d 226, 230
       suspect.                                 (6th Cir.), cert. denied, 506
                                                U.S. 964 (1992); see
! According to the Court of                     generally, Scott D. Joiner,
Criminal Appeals, the                           Identifications in Thirtieth
standard that the defendant                     Annual Review of Criminal
must meet to exclude an in-                     Procedure, 89 G EO. L.J.
court identification on due                     1051, 1189 (2001).
process grounds is high:
“unless it is shown by clear             D. PROCEDURAL WARNING!!!
and convincing evidence that             — In federal court, a pretrial
a complaining witness’ in                Motion to Suppress must be filed to
court identification of a                preserve the right to complain about
defendant as the assailant               identification testimony. See FED.
was tainted by improper pre-             R. CRIM. P. 12(b)(3). Failure to file
trial identification                     a pretrial Motion to Suppress
procedures              and              constitutes waiver of the right to
confrontations, the in court             raise the issue at trial. See, e.g.,
identification is always                 FED. R. CRIM. P. 12(f); United
admissible.” See Jackson v.              States v. Chavez-Valencia, 116
State, 628 S.W.2d 446, 448               F.3d 127, 129-31 (5th Cir.), cert.
(Tex. Crim. App. 1982)                   denied, 522 U.S. 926 (1997). In
(panel op.). The federal                 state court, on the other hand, a
courts handle the “burden of             timely objection at trial is sufficient
proof” issue slightly                    to preserve the right to complain
differently: “First, a                   about identification testimony. See,
defendant bears the burden               e.g., Roberts v. State, 545 S.W.2d
of proving the identification            157, 158 (Tex. Crim. App. 1977)
                                             EYEWITNESS IDENTIFICATIONS: THE LEGAL FRAMEWORK
                                                                                        PAGE 8

              (“The defendant’s counsel                           identification. See United
              may either file a pretrial                          States v. Owens, 484 U.S.
              motion to suppress evidence                         554, 561-64 (1988).
              or he may wait until the trial
              on the merits and object                            ! The rule applies to
              when the alleged unlawfully                         identifications made after
              obtained evidence is                                viewing a photo spread as
              offered.”).                                         well as after seeing the
                                                                  suspect in person.       See
IV.   Evidentiary Rules and Statutes                              United States v. Anglin, 169
                                                                  F.3d 154, 159 (1999);
      A. “A statement is not hearsay if . .                       Poullard v. State, 833
      . the declarant testifies at the trial or                   S.W.2d 273, 277-78 (Tex.
      hearing and is subject to cross-                            App.—Houston[1st Dist.],
      examination concerning the                                  pet. ref’d).
      statement, and the statement is . . .
      one of identification of a person                           ! So long as the declarant
      made after perceiving the person . .                        testifies and is subject to
      . .” FED. R. EVID. 801(d)(1)(C);                            cross-examination, a third
      TEX. R. EVID. 801(e)(1)(C).                                 party may testify about the
                                                                  declarant’s statement of
              ! The declarant need not                            identification under this rule.
              make an in-court                                    See Greene v. State, 928
              identification for evidence                         S.W.2d 119, 124-25 (Tex.
              of the out-of-court                                 App.—San Antonio 1996, no
              identification to be                                pet.) (wife’s testimony about
              admissible under this rule.                         husband’s previous out-of-
              See Rodriguez v. State, 975                         court identification
              S.W.2d 667, 682 (Tex.                               admissible under Rule
              App.—Texarkana 1998, pet.                           801(e)(1)(C))
                                                           B. Article 38.23 provides:
              !     A     defendant’s
              confrontation rights are not                         No evidence obtained
              violated by admission of a                   by an officer or other person
              prior out-of-court                           in violation of any provisions
              identification under this rule               of the Constitution or laws
              even if the declarant cannot                 of the State of Texas, or of
              remember the incident or                     the Constitution or laws of
              making the prior                             the United States of
                                                                             PAGE 9

        America, shall be                               State, 28 S.W.3d 72, 78-79
        admitted in evidence                            (Tex. App.—Texarkana 2000,
        against the accused                             no pet.).
        on the trial of any
        criminal case.                    V.    Resources
        In any case where the
legal evidence raises an                        Scott D. Joiner, Identifications in
issue hereunder, the jury                       Thirtieth Annual Review of
shall be instructed that if it                  Criminal Procedure, 89 GEO. L.J.
believes, or has a reasonable                   1051, 1185-93 (2001).
doubt, that the evidence was
obtained in violation of the                    ELIZABETH LOFTUS AND JAMES
provisions of this Article,                     DOYLE, EYEWITNESS TESTIMONY:
then and in such event, the                     CIVIL AND CRIMINAL (3rd ed. Lexis
jury shall disregard any such                   Law Publishing 1997)
evidence so obtained.
TEX. CODE CRIM. P ROC. ANN. art.                (Eyewitness Identification Research
38.23 (Vernon Pamph. 2001).                     Laboratory at UTEP)

       ! Article 38.23 does NOT       
       apply to i n - c o u r t                 wells/homepage.htm (website of Dr.
       identifications. See Allen v.            Gary L. Wells, Ph.D. — contains
       State, 511 S.W.2d 53, 54                 lots of good information about
       (Tex. Crim. App. 1974).                  eyewitness identification)

       ! Article 38.23 does NOT
       apply to allow submission of
       a special jury instruction
       allowing the jury to
       disregard an in-court
       identification if it resulted
       from an unfair or suggestive
       identification procedure or
       to disregard evidence of the
       out-of-court identification
       as impermissibly suggestive.
       See Andujo v. State, 755
       S.W.2d 138, 143 (Tex. Crim.
       App. 1988); McAllister v.

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