EYEWITNESS IDENTIFICATIONS: THE LEGAL FRAMEWORK Wm. Reagan Wynn The Kearney Law Firm 505 Main Street, Suite 220 Fort Worth, Texas 76102 (817) 336-5600 (817) 336-5600 (fax) firstname.lastname@example.org Criminal Defense Lawyer’s Project Developing the Theory of the Case 2001-2002 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 EYEWITNESS IDENTIFICATIONS: THE LEGAL FRAMEWORK 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 EYEWITNESS IDENTIFICATIONS: THE LEGAL FRAMEWORK 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 EYEWITNESS IDENTIFICATIONS: THE LEGAL FRAMEWORK 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 EYEWITNESS IDENTIFICATIONS: THE LEGAL FRAMEWORK 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)) ref’d). 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 EYEWITNESS IDENTIFICATIONS: THE LEGAL FRAMEWORK 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. http://www.eyewitness.utep.edu TEX. CODE CRIM. P ROC. ANN. art. (Eyewitness Identification Research 38.23 (Vernon Pamph. 2001). Laboratory at UTEP) ! Article 38.23 does NOT http://psych-server.iastate.edu/faculty/g 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.