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21.1 CHAPTER 21 MOTIONS TO SUPPRESS EYEWITNESS IDENTIFICATION

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21.1 CHAPTER 21 MOTIONS TO SUPPRESS EYEWITNESS IDENTIFICATION Powered By Docstoc
					                                                                                                   21.1

                                           CHAPTER 21

       MOTIONS TO SUPPRESS EYEWITNESS IDENTIFICATION TESTIMONY

Identification of the defendant as the perpetrator of the crime is an element of every criminal
case. Most often, identifications are made when a witness testifies that the person seated next to
defense counsel is the one who committed the crime. Frequently, in addition to this in-court
identification, the witness will testify to an out-of-court identification of the defendant through
a photographic array, lineup, or police-arranged one-on-one ‘‘showup.’’
The lay public generally perceives eyewitness identifications to be reliable, and the witness’ identifi-
cation of the defendant will often prove to be the primary factor resulting in a conviction. Yet,
as studies have repeatedly shown, eyewitness identifications are fraught with errors of perception
and memory. See Elizabeth F. Loftus and James M. Doyle, Eyewitness Testimony: Civil and
Criminal (2d Ed. 1992); see generally Elizabeth Loftus, Eyewitness Testimony (1979). Interracial
eyewitness identifications are particularly problematic. See Sheri Lynn Johnson, Cross-Racial
Identification Errors in Criminal Cases, 69 Cornell L. Rev. 934 (1984). Indeed, the Supreme Court
decisions establishing constitutional restrictions on the use of eyewitness testimony arose from
‘‘the Court’s concern with the problems of eyewitness identification,’’ and in particular, the Court’s
recognition that a ‘‘witness’ recollection of the stranger can be distorted easily by the circumstances
or by later actions of the police.’’ Manson v. Brathwaite, 432 U.S. 98, 112 (1977); see also United
States v. Wade, 388 U.S. 218 (1967); Gilbert v. California, 388 U.S. 263 (1967); Stovall v. Denno,
388 U.S 293 (1967). One need look no further than case law in the District of Columbia to find
examples of misidentifications that resulted in the incarceration of possibly innocent individuals.
See United States v. Greer, 538 F.2d 437 (D.C. Cir. 1976). See also ‘‘Nightmare: Indicted for
Crimes They Didn’t Commit,’’ Washington Post, November 27, 1981, at A1-A2.
There are two types of identification evidence: testimony regarding out-of-court and in-court
identification. Out-of-court identification evidence may be, for example, testimony from an eyewit-
ness that she saw the crime charged and identified the client in a lineup, photo array, or showup.
In-court identification evidence is generally testimony that a witness recognizes the client, as he
sits in court, as the person who she saw commit the crime. Frequently, the government attempts
to introduce an eyewitness’ out-of-court identification as well as an in-court identification.

      I. CONSTITUTIONAL AND EVIDENTIARY GROUNDS FOR EXCLUSION

There are three basic legal arguments that counsel can assert in an attempt to suppress or exclude
out-of-court and in-court identifications. Each argument shares one common theme: the out-of-
court identification was so unreliable that any testimony regarding it, as well as any subsequent
in-court identification, should be suppressed. The first argument is based on the Due Process
Clause. In making the argument, counsel asserts that undue suggestivity surrounding an out-of-
court identification procedure led to an impermissibly unreliable identification. The due process
violation lies in illegal state action, i.e., suggestivity by the police or prosecutor. The second
argument is also based on the due process clause, but does not require state action. Counsel
asserts that the identification was unreliable as a matter of due process, regardless of any conduct
by the police or government. Finally, the third argument states that the identification may be so
insufficiently reliable as an evidentiary matter that it should be excluded.
21.2

                       A. The Basic Due Process Claim—Police Suggestivity

‘‘It is the reliability of identification evidence that primarily determines its admissibility.’’ Watkins
v. Sowders, 449 U.S. 341, 347 (1981) (citing Brathwaite, 432 U.S. at 113-14). Government use of
an impermissibly suggestive out-of-court identification procedure triggers due process protection.
Once some suggestivity is shown, the reliability of the identification is determined by weighing
‘‘the corrupting effect of the suggestive identification’’ against factors relating to its reliability.
Brathwaite, 432 U.S. at 114. These factors include the witness’ opportunity to observe the perpetra-
tor and degree of attention paid at the time of the offense, accuracy of prior descriptions, level
of certainty at the time of the confrontation, and the time between the crime and the identification.
See id.
In Stovall, the Supreme Court recognized that due process prohibits the use of identification
evidence resulting from procedures that were ‘‘unnecessarily suggestive and conducive to irrepara-
ble mistaken identification.’’ 388 U.S. at 302; see also Neil v. Biggers, 409 U.S. 188, 197 (1972)
(ruling that identification admissible unless procedure created a ‘‘very substantial likelihood of
misidentification’’). Consequently, there can be no testimony regarding an out-of-court identifica-
tion where that identification was unduly suggestive. Simmons v. United States, 390 U.S. 377
(1968), analyzed the circumstances in which a suggestive out-of-court identification also requires
suppression of an in-court identification by the same witness. Simmons held that an in-court
identification is inadmissible ‘‘if the [out-of-court] identification procedure was so impermissibly
suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’’ Id. at 384.
An unnecessarily suggestive identification procedure, however, does not require a court to exclude
subsequent testimony regarding the identification. Even where there was an impermissibly sugges-
tive identification, a trial court might find it admissible if the government can establish sufficient
reliability. See In re L.G.T., 735 A.2d 957 (D.C. 1999). Furthermore, the Supreme Court rejected
the argument that a per se rule of exclusion is required to deter use of unnecessarily suggestive
identification procedures. Brathwaite, 432 U.S. at 112. The Court concluded that the ‘‘totality of
the circumstances’’ approach of Biggers would sufficiently protect the defendant’s interest to
exclude testimony that is unreliable and of limited ‘‘evidentiary interest,’’ while effectively deterring
improper police conduct that might fatally taint the government’s case:
       We . . . conclude that reliability is the linchpin in determining the admissibility of
       identification testimony. . . . The factors to be considered . . . include the opportunity
       of the witness to view the criminal at the time of the crime, the witness’ degree of
       attention, the accuracy of his prior description of the criminal, the level of certainty
       demonstrated at the confrontation, and the time between the crime and the confronta-
       tion. Against these factors is to be weighed the corrupting effect of the suggestive
       identification itself.
432 U.S. at 114 (citing Biggers, 409 U.S. at 199-200); See also L.G.T., 735 A.2d at 959. These
are essentially the same factors applied in Simmons, 390 U.S. at 385.
Therefore, under Biggers and Brathwaite, suppression appears to be virtually an all-or-nothing
proposition. Either the out-of-court identification is suggestive and unreliable and consequently,
in almost all cases, the subsequent identification is inadmissible; or it is reliable and ‘‘testimony
as to it and any identification in its wake is admissible.’’ Brathwaite, 432 U.S. at 110 n.10.
                                                                                                              21.3

Even where an out-of-court identification was unnecessarily suggestive and thus suppressed, the
government may still be permitted to elicit an in-court identification. Under the Stovall and
Simmons ‘‘independent source’’ test, the defense can sometimes obtain suppression of an out-of-
court identification but not of the in-court identification by the same witness. The defense is then
entitled, should it choose to do so, ‘‘to bring out the pre-trial confrontation itself, hoping that it
can thus detract from the weight the jury might otherwise accord the in-court identification.’’
Clemons v. United States, 408 F.2d 1230, 1237 (D.C. Cir. 1968); see also In re W.A.F., 407
A.2d 1062, 1066 (D.C. 1979) (trial court erred in not permitting questions on prior out-of-court
identification after witness made an in-court identification); Hampton v. United States, 318 A.2d
598, 600-01 (D.C. 1974) (even absent due process violation, accused has right at trial to show
suggestive police conduct to impeach identification). Moreover, the defense may attempt to call
an expert to testify about the unreliability of eyewitness identification, but such testimony is
admissible at the trial court’s discretion. See Green v. United States, 718 A.2d 1042, 1051 (D.C.
1998). Should defense counsel elicit testimony regarding a suppressed out-of-court identification,
the prosecution would then be entitled to bring out the full circumstances of that prior identifica-
tion. See Clemons, 408 F.2d at 1246; see also United States v. Holiday, 482 F.2d 729, 734 (D.C.
Cir. 1973) (applying same principles to violations of Sixth Amendment right to counsel at lineups).
Although Brathwaite, 432 U.S. at 114, balances suggestivity against reliability, D.C. cases have
hinted at a different approach. Wilkerson v. United States, 427 A.2d 926 (D.C. 1981), and
Patterson v. United States, 384 A.2d 666 (D.C. 1978), seem to treat the inquiry as a two-stage
process, focusing first on suggestivity and then ultimately on reliability. See also Greenwood v.
United States, 659 A.2d 825, 828 (D.C. 1995) (‘‘[I]f the identification procedures are not unduly
suggestive, the details of those procedures are admissible and no reliability finding is necessary.’’);
Henderson v. United States, 527 A.2d 1262 (D.C. 1987). More recent cases have clearly delineated
the two prongs of suggestivity and reliability. See United States v. Hunter, 692 A.2d 1370, 1376
(D.C. 1997) (‘‘If the trial court finds undue suggestivity, it must then determine whether the
identification was nonetheless reliable.’’); Williams v. United States, 696 A.2d 1085, 1086 (D.C.
1997) (proposing that trial court should rule on the reliability of an identification even when it
does not find undue suggestivity). United States v. Brown, 700 A.2d 760, 761 (D.C. 1997),
confirmed that trial courts must apply a two-part test to determine suggestivity and reliability.
On the other hand, the Court of Appeals has previously treated the inquiry as a one-step balancing
test. See United States v. Walton, 411 A.2d 333 (D.C. 1979); Middleton v. United States, 401
A.2d 109 (D.C. 1979); Cureton v. United States, 386 A.2d 278 (D.C. 1978). Nevertheless, it is in
the best interest of all parties for a trial court to rule on reliability even where the court finds no
suggestivity. See Williams v. United States, 696 A.2d 1085 (D.C. 1997).

                            B. Due Process Reliability1 —Sheffield Motions

An identification may be ‘‘so unduly suggestive as to deprive that identification of probative
value’’ even without police suggestivity.2 Sheffield v. United States, 397 A.2d 963, 967 n.4 (D.C.

1
  Defense counsel might consider calling an expert witness to testify about the unreliability of eyewitness
identification. Counsel must note, however, that where the trial court finds that the expert’s proposed
testimony is not beyond the ken of the average juror, the court may properly exclude such testimony. See
Green v. United States, 718 A.2d 1042 (D.C. 1998).
2
  See infra Section 1.D. for the principles used to determine whether an identification is the result of government
action or merely accidental.
21.4

1979). Identification testimony lacking probative value may be inadmissible on purely evidentiary
grounds.3 Sheffield makes clear that the evidentiary violation can, in certain circumstances, rise
to the level of constitutional error. The due process principle of Sheffield is the same as that
which the Supreme Court has invoked in other contexts: an error, although technically only a
violation of the rules of evidence, can be so prejudicial to the defendant’s ability to have a fair
trial as to violate due process. Cf. Green v. Georgia, 442 U.S. 95 (1979) (evidentiary ruling on
hearsay). It is also a logical corollary of the Supreme Court’s repeated observation that ‘‘reliability
is the linchpin in determining the admissibility of identification testimony.’’ Brathwaite, 432 U.S.
at 114; accord Watkins, 449 U.S. at 347 (‘‘It is the reliability of identification evidence that
primarily determines its admissibility.’’).
The issue is appropriately raised in a pretrial motion. See Sheffield, 397 A.2d at 967 (stating that
defense can raise due process issue in pretrial hearing and, if it fails, raise the purely evidentiary
issue at trial). Sheffield’s direction that a judicial determination of admissibility be made outside
the hearing of the jury is consistent with procedural requirements for other types of evidence
whose potential for prejudicing the jury is profound. Cf., e.g., Jefferson v. United States, 463
A.2d 681, 685 (D.C. 1983) (asserting that jury cannot hear evidence of defendant’s other crimes
until judge has ruled it admissible).
Although Sheffield specifically refers to a constitutional challenge to pretrial identifications, such
as second sightings, its rationale applies equally to in-court identification evidence lacking in
probative value.

                           C. Evidentiary Inadmissibility Based on Unreliability

Separate and apart from the due process analysis, the rules of evidence may preclude identification
testimony where, in the totality of the circumstances, the identification is not sufficiently reliable.
This challenge is essentially one of simple relevance—an inherently weak or unreliable identifica-
tion lacks probative value. See Sheffield, 397 A.2d at 967 (‘‘A defendant may challenge the
admission of [identification] testimony by raising a timely objection to its admissibility at trial
on the ground that under the law of evidence testimony is so inherently weak or unreliable as to
lack probative value.’’). Since all evidence must be relevant, both out-of-court and in-court
identifications are subject to this evidentiary challenge. See also Reavis v. United States, 395 A.2d
75, 78-79 (D.C. 1978) (holding that in-court identification must be relevant and probative in order
to be admissible).
Out-of-court identification evidence is also subject to an additional, albeit similar, evidentiary
requirement of reliability. To be admissible under the prior identification exception to the hearsay
rule, two criteria must be met: the declarant must be available at trial for cross-examination, and
the out-of-court identification must be reliable. See Beatty v. United States, 544 A.2d 699, 701-
02 (D.C. 1988); In re L.D.O., 400 A.2d 1055, 1057 (D.C. 1979). Thus, Beatty made clear that
reliability is a separate evidentiary requirement for admissibility, based on all the surrounding
circumstances. 544 A.2d at 702-03. In L.D.O., the prior identification was rendered unreliable,
and thus inadmissible, because the identifying witness testified that he was not certain of his prior
identification either at the time it was made or at trial. See 400 A.2d at 1056-58. Cf. Scales v.



3
    See infra Section I.C. for discussion of evidentiary challenges to admission of identification evidence.
                                                                                               21.5

United States, 687 A.2d 927, 931-32 (D.C. 1996) (ruling that out-of-court identification of defen-
dant admissible as substantive evidence where witness recants prior identification during redirect
examination, after making in-court identification and affirming prior identification during direct
examination); see also United States v. Bamiduro, 718 A.2d 547 (D.C. 1998) (ruling that witness’
failure to identify defendant in photo array, but ability to identify defendant at second sighting
19 days later, admissible).
Beatty is a powerful tool for excluding testimony that might be admissible under the Brathwaite
due process analysis. On judicial economy grounds, Beatty urges pretrial determination of the
evidentiary issue, suggesting two methods to resolve the question of admissibility. If there is a
motion to suppress on due process grounds, the court may allow additional testimony as necessary
to determine admissibility on an evidentiary basis. If no motion is pending, the court may entertain
a motion in limine to exclude the testimony. See Beatty, 544 A.2d at 703 n.6. For example,
Jackson v. United States, 623 A.2d 571, 588-90 (D.C. 1993), examined a purely evidentiary
challenge to out-of-court and in-court identification evidence. Although finding no plain error in
admitting any of the identifications, the Court made clear the separate evidentiary basis for
challenging admission of identification evidence.

                                  D. Case Law on Suggestivity

Suggestivity is evaluated in light of the totality of the circumstances. See, e.g., Harley v. United
States, 373 A.2d 898, 901 (D.C. 1977). Each identification procedure carries its own dangers,
discussed below. Suggestivity may also result when more than one witness views a suspect simulta-
neously, because each may influence the others and thereby ‘‘shore up’’ the degree of ‘‘certainty,’’
making it unclear whether any witness would have made an identification separately. See United
States v. McBride, 499 F.2d 525 (D.C. Cir. 1974) (photo array); Clemons v. United States, 408
F.2d 1230, 1241 (D.C. Cir. 1968) (showup). Cf. Sheffield, 397 A.2d at 963. For a useful analysis
of other factors that may cause undue suggestivity, see United States v. O’Connor, 282 F. Supp.
963 (D.C..D.C. 1968).
The police should not tell the witness that a suspect is in the showup, array or lineup. See Byrd
v. United States, 502 A.2d 451 (D.C. 1985); Hampton v. United States, 318 A.2d 598, 601 (D.C.
1974); United States v. Gambrill, 449 F.2d 1148, 1151 n.3 (D.C. Cir. 1971). Similarly, it is also
suggestive for the police to tell the witness that the suspect has a special characteristic. See
Anderson v. United States, 364 A.2d 143 (D.C. 1976) (finding that police told witness the suspect
was tall, but lineup not impermissibly suggestive where review of photo revealed nothing unduly
suggestive); Holt v. United States, 675 A.2d 474, 482 (D.C. 1996) (finding no suggestivity where
before the showup police did not inform witness that physical appearance and clothing of the
suspect he was about to see matched the witness’ earlier description). Suggestive remarks by the
police after an identification may taint an in-court identification. See Scott v. United States, 619
A.2d 917, 929-30 (D.C. 1993) (‘‘somewhat suggestive’’ for police to advise witness that she selected
wrong person in lineup); In re W.A.F., 407 A.2d 1062, 1066 (D.C. 1979). But see Jackson v.
United States, 420 A.2d 1202 (D.C. 1979) (en banc) (finding that, after witness identified defendant
in a photo array, police officer’s remarks that witness selected the man arrested, ‘‘although
inadvisable and better left unsaid, were not so impermissibly suggestive as to give rise to a
substantial likelihood of irreparable misidentification.’’)
21.6

                                            1. Showups

A ‘‘showup’’ is a one-on-one confrontation between a witness and a suspect. These confrontations
most frequently occur when the police, responding to a radio run for a recent incident, apprehend
a suspect ‘‘matching’’ the description broadcast, and take the suspect to the witness for an
identification. ‘‘[C]onfrontations in which a single suspect is viewed in the custody of the police
are highly suggestive.’’ Russell v. United States, 408 F.2d 1280, 1284 (D.C. Cir. 1969); see also
Hollingsworth v. United States, 531 A.2d 973, 977 (D.C. 1987). Yet showups are not per se
inadmissible, see, e.g. Turner v. United States, 622 A.2d 667, 672 (D.C. 1993), and the results
may be admitted into evidence on the rationale that necessity justifies their suggestivity, that a
prompt showup enhances the reliability of an identification, and that a showup may quickly
exonerate an innocent person who has been mistakenly apprehended.
These justifications suggest their own limitations. First, ‘‘[a]t some point the nexus of time and
place between offense and identification must become too attenuated to outweigh the admitted
dangers of presenting suspects singly to witnesses.’’ United States v. Perry, 449 F.2d 1026, 1036-
37 (D.C. Cir. 1971) (quoting McRae v. United States, 420 F.2d 1283, 1290 (D.C. Cir. 1969)); see
also Garris v. United States, 559 A.2d 323, 327 (D.C. 1989). Second, even confrontations ‘‘manage-
able freshly after criminal episodes’’ must be limited to situations where the need to promptly
resolve doubts as to the identification outweighs the inherent suggestivity of the showup. Perry,
449 F.2d at 1037.
As to the temporal and spatial nexus, the courts eschew any hard and fast rules. See Garris, 559
A.2d at 327. Holt approved a showup held ‘‘a little over a half hour’’ after the crime. See 675
A.2d at 483. Perry approved a showup held ninety minutes after the crime. See 449 F.2d at 1028-
29. McRae, 420 F.2d at 1290, found excludable a showup conducted some four hours after the
offense. MPD General Order 304.7 authorizes showups only within sixty minutes after either a
crime or second sighting, except that if the complainant or the suspect has been admitted to the
hospital in critical condition, the showup is authorized at any time. However, in Zanders v. United
States, 678 A.2d 556, 567 (D.C. 1996), a show-up procedure where five or six suspects were
presented one at a time to two separate witnesses two-and a-half hours after commission of the
crime was deemed reliable. Counsel may argue that police misconduct in violating the General
Order requires suppression of the identification. But see United States v. Caceres, 440 U.S. 741
(1979) (finding evidence obtained in violation of IRS rule on electronic surveillance, not mandated
by constitution or statute, not subject to suppression).
Indicia of custody may heighten suggestivity. But see, e.g., Holt, 675 A.2d at 482 (ruling no
suggestivity where identification included suspect lying on hospital gurney without restraint);
Fields v. United States, 484 A.2d 570, 574 (D.C. 1984) (finding that suspect in handcuffs; but no
substantial likelihood of misidentification); Jones v. United States, 277 A.2d 95, 97-98 (D.C. 1971)
(ruling that although suspect in handcuffs and seated in police car, promptness of identification
outweighed suggestivity). Indicia of custody accompanied by ‘‘special elements of unfairness’’
may establish a due process violation. See Turner, 622 A.2d at 672 (quoting Russell, 408 F.2d at
1284). But see Gregg v. United States, slip op 96-cf-246 (D.C. 2000) (neither custodial appearance
and officers’ statements that the suspects ‘‘matched the description’’ given by the witnesses rendered
identifications unduly suggestive).
                                                                                                          21.7

                                        2. Accidental Encounters

The government may not purposefully arrange an ‘‘accidental’’ confrontation, e.g., having the
witness present when the defendant is arraigned on other charges. See United States v. York, 426
F.2d 1191 (D.C. Cir. 1969). However, truly accidental encounters even while the suspect is in
custody do not generally give rise to impermissible suggestivity under the Due Process Clause.
For example, Cureton v. United States, 386 A.2d 278, 288 (D.C. 1978), found no due process
violation in a spontaneous identification when the witness encountered the defendant in the
police station after a presumably untainted lineup. Cureton established the following criteria for
admissibility: (1) the confrontation is inadvertent, accidental or unplanned; (2) the identification
is spontaneous and positive; (3) the police and prosecution did not intend that an identification
be attempted; (4) no one pointed out the accused to the witness; and (5) the witness is subject to
full cross-examination at trial concerning the basis of the identification. Harvey v. United States,
395 A.2d 92 (D.C. 1978), applied the Cureton analysis where no identification had occurred
before the inadvertent, arguably suggestive encounter. McCall v. United States, 596 A.2d 948,
952 n.9 (D.C. 1991), upheld an in-court identification resulting from a witness seeing the defendant
in the courthouse before the witness testified.4 Even if an encounter is purely accidental under
Cureton, it may still be so unduly suggestive as to lack probative value and violate due process
and evidentiary rules under Sheffield and Beatty. See supra Sections B, C.

                                     3. Photographic Identifications

There is no right to the presence of counsel at a photographic display. See United States v. Ash,
413 U.S. 300 (1973) (array of photographs of individual suspects); Turner v. United States, 443
A.2d 542 (D.C. 1982) (array of mug shots and photograph of lineup); Williams v. United States,
379 A.2d 698 (D.C. 1977) (photograph of lineup).
Showing a single photograph is highly suggestive and the suggestivity is unnecessary absent
compelling circumstances. See Manson v. Brathwaite, 432 U.S. 98 (1977); Mason v. United States,
414 F.2d 1176 (D.C. Cir. 1969). But see Green v. United States, 580 A.2d 1325 (D.C. 1990) (not
unduly suggestive or untrustworthy to display single photo to witness who had lived with suspect
for six months and had already identified suspect by name); Patterson v. United States, 384 A.2d
663 (D.C. 1978) (showing single photo to witness just before trial to ‘‘refresh’’ witness’ memory,
while unnecessarily suggestive, not conducive to irreparable misidentification where there had been
a previous, unequivocal, unsuggestive and otherwise constitutionally permissible identification);


4
  Compare United States v. Greene, 429 F.2d 193 (D.C. Cir. 1970) (finding that police arranged encounter
between witnesses and suspect by use of summons to appear at same location; resulting identification violated
defendant’s right to have counsel present at post-arrest confrontations); Mason v. United States, 414 F.2d
1176 (D.C. Cir. 1969) (police told witness to observe preliminary hearings when suspect was to appear; right
to counsel violated); Gregory v. United States, 410 F.2d 1016, 1020-24 (D.C. Cir. 1969) (testimony regarding
unnecessarily suggestive encounter in detective’s office did not require reversal); Miles v. United States, 483
A.2d 649 (D.C. 1984) (complainant, who had been unable to identify defendant, recognized him at counsel
table during voir dire; prosecutor had told complainant to be alert to see if she recognized anyone and had
oriented her to defense counsel’s table; not ‘‘intentionally suggestive’’); United States v. Neverson, 463 F.2d
1224 (D.C. Cir. 1972) (complainant observed defendant being taken from jail to courthouse for a lineup;
no violation); United States v. Conner, 462 F.2d 296 (D.C. Cir. 1972) (complainant waiting to speak to
officer at police station saw defendant being taken into another room; no violation).
21.8

United States v. Washington, 12 F.3d 1128, 1134 (D.C. Cir. 1994) (totality of circumstances
established that the reliability of the single photo identification outweighed its suggestivity); United
States v. Brannon, 404 A.2d 926, 928-29 (D.C. 1979).
An array in which the suspect’s picture is the only one matching the description given by the
complainant is unnecessarily suggestive.5 See United States v. Sanders, 479 F.2d 1193 (D.C. Cir.
1973) (only defendant had facial hair similar to witness’s description); cf. Simmons v. United
States, 390 U.S. 377, 383 (1968). But see Banton v. United States, 411 A.2d 975, 979 (D.C. 1980)
(not suggestive where picture of defendant, who was three quarters white and one quarter Cherokee,
was placed in album of black males, the Court finding ‘‘[a]t least three other pictures in the album
. . . similar to appellant in complexion and hairstyle’’); Dang v. United States, 741 A.2d 1039
(D.C. 1999) (photo array not unduly suggestive even if there were no other photos of people, like
defendant, of African-American and Asian descent, included in arrays; also not unduly suggestive
that array included a photo of defendant’s brother who resembled defendant) Harley v. United
States, 373 A.2d 898 (D.C. 1977) (defendant alone was wearing coat similar to that described by
complainant; admissible because witness recognized defendant’s face, not coat); Davis v. United
States, 367 A.2d 1254, 1265 (D.C. 1976) (not unnecessarily suggestive even though defendant was
only person wearing dashiki, which complainant had stated was worn by her attacker; she was
positive of her identification and at trial was unable to recall whether man in photograph was
wearing dashiki); Herbert v. United States, 340 A.2d 802, 803 (D.C. 1975) (not impermissibly
suggestive although defendant’s clothing in photo resembled that which witness had said robber
was wearing, ‘‘in view of the total number of pictures observed (150) and the number of men of
comparable age and appearance in the array’’).6
The distinctive format or nature of a defendant’s photograph can contribute to suggestivity. See,
e.g., Henderson v. United States, 527 A.2d 1262, 1268 (1987) (poor quality of photo taken together
with fact that defendant’s picture had newest date and he was the only bald, bearded person
depicted rendered array unduly suggestive); Parks v. United States, 451 A.2d 591, 605-06 (D.C.
1982) (faded quality of defendant’s photograph contributed to showing of suggestivity). Distinctive
format alone, however, has often not resulted in suppression. See United States v. Sherry, 318
A.2d 903 (D.C. 1974) (array not so suggestive as to violate due process even though defendant’s
was the only full face photograph); Harley, 373 A.2d at 898 (identification admissible although
defendant was pictured in Polaroid snapshot while the other photos were mug shots).
The picture of one suspect should not be repeated in multiple arrays. See Simmons, 390 U.S. at 383
(danger of misidentification increases if witness sees ‘‘pictures of several persons among which the
photograph of a single such individual recurs or is in some way emphasized’’).7 See infra Section 5.

5
  On the suggestivity of the array itself, the appellate court’s own examination of that array is decisive. See
United States v. Smallwood, 473 F.2d 98, 100 (D.C. Cir. 1972).
6
  Harley, Davis and Banton indicate that suggestivity will not be found unless the witness at least admits
having noticed the aspect of the photographs which the defense argues is suggestive. See also Stewart v.
United States, 490 A.2d 619, 623 (D.C. 1985).
7
  A similar procedure was criticized in Ellis v. United States, 395 A.2d 404 (D.C. 1978). Police first showed
the witness an array containing nine photographs of men named Michael Barnes; she selected one. Two
weeks later she was shown the same array, with a new suspect’s picture replacing the one she had picked
earlier. The Court held that this procedure did not require suppression of the identification of the newly
included suspect, but criticized the procedure, noting that the use of ‘‘an essentially identified photo array’’
might be unduly suggestive in some instances. Id. at 411 n.10. See Harris v. United States, 375 A.2d 505,
509 (D.C. 1977).
                                                                                                         21.9

‘‘The chance of misidentification is also heightened if the police indicate to the witness that they
have other evidence that one of the persons pictured committed the crime.’’ Id. at 383. But unless
the police say more than that the suspect is in the array, the procedure generally will not be found
impermissibly suggestive. See Jackson v. United States, 420 A.2d 1202 (D.C. 1979) (en banc);
Harley, 373 A.2d at 900-01; Crawley v. United States, 328 A.2d 777 (D.C. 1974) (array not
impermissibly suggestive although police told complainant that suspect was included; suggestivity,
if any, did not require suppression because procedure was largely ineffective, as witness was only
able to pick two pictures as resembling robber and was unable to make lineup identification).
One rationale for this result is that showing a witness an array or lineup (as opposed to a mug
book) implicitly suggests that the police suspect someone in the array or lineup. Gambrill, 449
F.2d at 1151 n.3.8
Providing information from which the witness can ‘‘proceed backward’’ to deduce who ‘‘should’’
be identified is suggestive.9 For example, if the photos reveal dates, a witness might be able to
figure out who is no longer in the relevant age group. See also United States v. McBride, 499
F.2d 525 (D.C. Cir. 1974) (witness knew perpetrator’s name and, having tentatively identified
picture, located name in index to mug book; but independent source found). MPD General Order
304.7 now directs that the index not be available to the witness.
Given the number of photographs in police files, the police should be able to formulate a fair
array. Thus, except where quick action is required, as where photos are used in a rapidly unfolding
criminal investigation, see Simmons, 390 U.S. at 384-85, less suggestivity should be permitted in
an array than in any other type of identification procedure. See United States v. Logan, 104
Wash. D.L. Rptr. 1817, n.1 (D.C. Super. Ct. Oct. 19, 1976) (Murphy, J.).
The police have a duty to preserve, and the defense has a right to discover, all arrays from which
an identification is made. Washington v. United States, 377 A.2d 1348, 1351 (D.C. 1977); United
States v. Bryant, 439 F.2d 642 (D.C. Cir.), aff’d after remand, 448 F.2d 1182 (1971); see also
MPD General Order 304.7. The government need not preserve arrays from which no identification
was made. Washington, 377 A.2d at 1351. But see Fields v. United States, 698 A.2d 485, 489
(D.C. 1997) (holding that defendant’s right to fair trial not violated by loss of photo array after
jury started deliberating). If the witness identifies someone other than the defendant or provides
other exculpatory information during the array, the government has an obligation to disclose
that information and to preserve the array pursuant to Brady v. Maryland, 373 U.S. 83 (1963).
See, e.g., Grant v. Alldredge, 498 F.2d 376, 382 (2nd Cir. 1974) (due process violation where
government failed to disclose information that witness selected another person’s photograph
until middle of trial, notwithstanding pretrial disclosure of witness failure to select defendant’s
photograph).


8
  It is, of course, impermissibly suggestive to direct the witness’s attention to a particular photograph. See
United States v. Trivette, 284 F. Supp. 720 (D.D.C. 1968) (detective asked, ‘‘Is that the man?’’). But see
Taylor v. United States, 451 A.2d 859, 862-63 (D.C. 1982) (1983) (witness viewed photo array which included
appellant’s photograph three or four times, and each time settled on two photographs including appellant’s
photo; detective pointed at appellant’s photograph and asked ‘‘what about this photograph?’’).
9
  See Johnson v. United States, 585 A.2d 766, 768 n.2 (D.C. 1991) (array not unduly suggestive without
evidence that witness saw initials on backs of photographs); McBride v. United States, 393 A.2d 123 (D.C.
1978) (no inherent suggestivity in showing appellant’s picture last in a series of 100 where there was no
evidence witness knew the photo he identified was to be the last shown).
21.10

The factors used in determining appropriate sanctions for failure to comply with the Jencks Act
may also apply to failure to preserve discoverable arrays: the degree of negligence or bad faith
involved; the importance of the evidence lost; and the evidence of guilt adduced at trial. See
Cotton v. United States, 388 A.2d 865, 869 (D.C. 1978). In affirming the trial court’s decision
not to impose sanctions and assessing the element of prejudice, Cotton noted that inability to
regroup the array does not preclude a finding that the procedure was not suggestive. Id. at 870.
See also Sheffield, 397 A.2d at 968 (failure to impose sanctions sua sponte will be reversed only
if plain error).

                                                  4. Lineups

Lineups are conducted at MPD Headquarters, 300 Indiana Avenue, N.W. They are videotaped
and photographed. Counsel can interpose objections before the lineup begins. Sometimes the
lineup detectives will make changes, such as altering the clothing or positions of those in the line,
based on such objections. The police usually will not proceed with a lineup with fewer than eight
persons in the line, although the courts have occasionally permitted smaller lineups. United States
v. Hines, 455 F.2d 1317 (D.C. Cir. 1971) (six-person line); Patton v. United States, 403 F.2d 923
(D.C. Cir. 1968) (five-person line). Counsel should make sure that the client wears appropriate
clothes (i.e., not jail suits or clothes matching the description given by government witnesses).10
As with photographic identifications, uniqueness, especially if it corresponds with a feature of a
prior identification or description, is the primary source of suggestivity in lineups. But see United
States v. Jackson, 509 F.2d 499 (D.C. Cir. 1974) (identification admissible, although only suspect
wore ‘‘bush’’ haircut, because complainant had good opportunity to observe culprit and had
given detailed description). As with photographic identifications, the suggestivity of the actual
lineup is determined primarily by the court’s examination of the photograph of that line, see
supra note 5. See also McClain v. United States, 460 A.2d 562 (D.C. 1983) (prison garb in lineup
may be suggestive, but identification admissible as reliable).
In re L.W., 390 A.2d 435 (D.C. 1978), disapproved MPD’s practice of making it appear that all
persons in the line are the same height by having some participants stand on boxes. The lineup
was found to be unnecessarily suggestive when appellant’s physical frame and apparent lack of
maturity were compared with that of others in the line who appeared substantially older and
larger. Id. at 438; see also Herbert v. United States, 340 A.2d 802 (D.C. 1975).11



10
   Hearing commissioners in courtrooms C-10 and 115 routinely grant oral motions to allow an incarcerated
client to change into clothing provided by counsel, and will sign an order prepared by counsel. Counsel
must present the order and clothing at the lineup room an hour before the lineup is to be held. The lineup
detectives do provide clothing and try to match all the people in the line, so counsel may wish to wait to
see the line before providing clothing to the client.
11
   One study found that false identifications in lineups could be reduced by as much as fifty percent if witnesses
viewed the suspects one at a time instead of as a group. Participants viewed a videotape depicting a staged
robbery, and were then asked to identify the robber from a videotaped lineup. Of those who viewed a
standard six-person lineup, 39 percent identified an innocent person as the perpetrator; for those who viewed
the suspects one by one, the rate of mistaken identifications was 19 percent. Cutler and Penrod, Improving
the Reliability of Eyewitness Identification: Lineup Construction and Presentation, 73 J. Applied Psychol.
281 (1988).
                                                                                                         21.11

Violation of the right to counsel at a lineup requires automatic suppression of the identification.12
Erroneous admission of the identification must result in reversal unless it can be found harmless
beyond a reasonable doubt. See Gilbert v. California, 388 U.S. 263 (1967). Cf. Washington, 377
A.2d at 1350 (identification was made after counsel left based on erroneous information that
neither defendant nor any witnesses were present; harmless based on reliability of identification,
appearance of lineup photo, and fact that counsel argued suggestivity to jury); Graham v. United
States, 377 A.2d 1138 (D.C. 1977) (no right to counsel during post-lineup interview in which
witness who had selected no one told police that lineup included perpetrator).
Although a lineup is generally considered more reliable than a photographic display, the govern-
ment may choose a pictorial presentation instead. See United States v. Jackson, 509 F.2d 499
(D.C. Cir. 1974); see also United States v. Hamilton, 420 F.2d 1292, 1294-95 n.11 (D.C. Cir.
1969). The defense may, however, request a lineup, see infra Section III.B.

                                           5. Multiple Procedures

Witnesses may be asked to make more than one identification—for example, at a showup and
again at a lineup, or in multiple photo arrays. Repetition itself may be suggestive, leading the
witness to recognize the person from the previous viewings rather than from the crime scene. See
Foster v. California, 394 U.S. 440 (1969) (procedure unduly suggestive where suspect was presented
at a showup, and was the only person who participated in two different lineups); Jennings v.
United States, 431 A.2d 552 (D.C. 1981) (procedures suggestive where police showed lineup photo
with defendant as shield number four and then showed lineup with defendant’s brother, who
looked similar, in the same position); Towles v. United States, 428 A.2d 836, 845-46 (D.C. 1981)
(‘‘There is, of course, a degree of suggestivity in such a progression of pretrial events,’’ and ‘‘the
combined circumstances may give rise to a degree of impermissible suggestivity which is violative
of due process’’); United States v. Walton, 411 A.2d 333, 338 (D.C. 1979) (suggestive for police
to pressure witness who cannot make an identification by showing repeated arrays and suggesting
that witness, rather than defendant, is prime suspect and ought to take polygraph test); United
States v. Sanders, 479 F.2d 1193 (D.C. Cir. 1973). But see Christian v. United States, 394 A.2d
1, 27-28 (D.C. 1978) (court held exhibition of appellant to witness a total of five times—once in
a lineup, three times in photograph of lineup combined with his presence in courtroom—did not
constitute cummatively an unnecessarily suggestive identification procedure).
A related threat to the independent integrity of the second procedure arises where the witness is
told beforehand that a previous selection of the suspect was ‘‘correct.’’ However, that fact alone
may not require suppression of the second procedure. See Harley, 373 A.2d at 900-01; Marshall
v. United States, 340 A.2d 805 (D.C. 1975); Allen v. United States, 697 A.2d 1 (D.C. 1997)
(finding witness’ failure to identify defendant in array did not render previous showup identification
unduly suggestive). Similarly, telling a witness that an identification was incorrect injects suggesti-
vity into a subsequent procedure. That suggestivity may not taint a subsequent in-court identifica-
tion, however, if the witness initially identified the defendant during a constitutionally acceptable
procedure. See Scott v. United States, 619 A.2d 917, 929-30 (D.C. 1993) (where initial positive
identification occurred during constitutionally acceptable photo array, suggestivity of police telling
witness that she identified wrong person in subsequent lineup did not require suppression of in-
court identification).


12
     Use of substitute counsel is permissible. See Shelton v. United States, 388 A.2d 859 (D.C. 1978).
21.12

                                     6. In-court Identifications

Admissibility of an in-court identification does not hinge on the existence of a previous out-of-court
identification. See Middleton v. United States, 401 A.2d 109 (D.C. 1979). While acknowledging the
inherent suggestivity of an in-court identification, the Court held that ‘‘the mere exposure of the
accused to a witness in the suggestive setting of a criminal trial does not implicate the Due Process
Clause.’’ Id. at 132. Indeed, the in-court identification is admissible in part because its suggestivity
is obvious. See In re W.K., 323 A.2d 442, 444 (D.C. 1974) (‘‘juries are inclined to be skeptical of
courtroom identifications’’); See also Brown v. United States, 327 A.2d 539 (D.C. 1974). Neverthe-
less, the defense may challenge such identifications on purely evidentiary grounds, see supra
Sections I.B and C.
The constitutional and evidentiary concerns involved in a ‘‘surprise’’ in-court identification by a
witness who had previously been unable to identify the defendant are discussed in Reavis v.
United States, 395 A.2d 75 (D.C. 1978).
Counsel should be alert to potentially prejudicial information being included in any in-court
identification. In Gordon v. United States, 582 A.2d 944, 947 (D.C. 1990), a police officer
repeatedly identified Gordon by referring to her jail arm band. While a defendant cannot be
compelled to wear prison clothing in front of a jury, because that appearance would erode the
presumption of innocence, e.g. Estelle v. Williams, 425 U.S. 501 (1976), the arm band created
little incremental danger of prejudice because Gordon had worn prison clothing before the jury
the previous day, without objection. See Gordon, 582 A.2d at 947.

                          E. Litigating Admissibility of the Identification

                                  1. The Contours of the Hearing

The scope of the constitutional right to a pretrial hearing outside the presence of the jury is not
fully resolved. While there is no ‘‘per se rule compelling such a procedure in every case . . . [i]n
some circumstances . . . a determination [outside the presence of the jury] may be constitutionally
necessary.’’ Watkins v. Sowders, 449 U.S. 341, 349 (1981). Watkins did not indicate what types
of cases might come within this requirement.
Regardless of the constitutional law, long-established local case law confers a right to a pretrial
hearing. See Clemons, 408 F.2d at 1237. Watkins approvingly cited Clemons and similar decisions
from other federal circuits, commenting that apart from the question of a constitutional right, it
is both ‘‘prudent’’ and ‘‘advisable’’ to require pretrial hearings as a matter of local procedure.
Watkins, 449 U.S. at 349.
The Court of Appeals has invoked its supervisory powers to ‘‘hold that every defendant is entitled
to an evidentiary hearing on a motion to suppress a showup identification unless it clearly appears
from informal discovery that the defendant is seeking a hearing in bad faith.’’ In re F.G., 576
A.2d 724, 725 (D.C. 1990) (en banc). Since counsel is never present at a showup identification,
the defendant usually cannot discern what is happening during a showup, and since specific
information regarding the showup is not available unless the prosecutor provides it informally,
the defense is unlikely to have enough information about the showup procedure to allege specific
facts that would justify a hearing under the standard used for other types of suppression motions.
See id. at 726-27 (distinguishing Jackson v. United States, 420 A.2d 1202 (D.C. 1979) (en banc)
                                                                                                       21.13

(no hearing required unless motion to suppress lineup states facts that if proven would warrant
relief) and Duddles v. United States, 399 A.2d 59 (D.C. 1979) (same, regarding Fourth Amend-
ment motions)).
The defense motion should, to the extent possible, allege specific facts which, if true, constitute
suggestivity or unreliability creating a substantial likelihood of misidentification. Accordingly,
counsel should attempt to discover from the government as much detail as possible about the
identification procedures used. ‘‘[T]he defense is entitled to know, through disclosure by the
prosecution or by evidentiary hearing outside the presence of the jury,’’ the circumstances of any
pretrial identification. Clemons, 408 F.2d at 1237; see also Cantizano v. United States, 614 A.2d
870, 873-74 (D.C. 1992) (failure to disclose identification did not mandate mistrial where court
immediately instructed jury to disregard it, identification was not intentionally elicited but was
volunteered during cross-examination, and jury was also presented with evidence of witness’s
failure to identify appellant during a lineup); Arnold v. United States, 511 A.2d 399 (D.C. 1986)
(finding prosecutorial misconduct in failing to disclose identification testimony on request). If the
court refuses to hold a hearing, counsel should place the efforts to obtain information through
discovery on the record.
The hearing is generally held immediately before trial. If the government is ready on the day of
trial only with its motions witnesses and not its trial witnesses, or the judge has time only for the
motion and not the entire trial, the hearing may be held days or even weeks before trial.
From the defense perspective, the goal of the hearing may be either (1) to suppress the unconstitu-
tional identification, or (2) to preview the government’s case on identification. Each goal requires
a somewhat different strategy. Where the primary goal is suppression, and there has been adequate
discovery, cross-examination should be carefully framed to elicit only the testimony desired. Where
the primary purpose is to preview the government’s case, counsel may, as in preliminary hearings,
ask open-ended questions that allow the witness to discourse at will, reverting to narrow leading
questions to pin the witness down on specific helpful testimony. The purposes and questions must
be adapted to the specific case and developments in the hearing.
Counsel may encounter judicial resistance to calling the identifying witness13 and to an inquiry
into reliability,14 based on the assumption that other witnesses can testify about suggestivity and
that reliability need not be shown absent a preliminary showing of suggestivity. That assumption
is flawed in a number of ways. First, the witness’s testimony is material to both suggestivity and
reliability. The suggestivity inquiry is not whether the police intended to suggest an identification,


13
   For example in Minor v. United States, 647 A.2d 770 (D.C. 1994), the court of appeals upheld the trial
court’s decision to bar the defense from calling the identification witness at the pretrial identification
suppression hearing on the issue of suggestivity. The court reasoned that there was no error because the
identifying witness’ testimony at trial was consistent with the testimony of the arresting officer who saw the
showup and who was the only government witness at the pretrial hearing.
14
   For example in Greenwood v. United States, 659 A.2d 825 (D.C. 1995), the appellant was convicted of
first degree burglary, two counts of sodomy and assault with intent to rape. The motions judge rejected
appellant’s claim that a photo array and subsequent lineup were unduly suggestive. The government requested
that the reliability finding be made after the complaining witness’ trial testimony to ‘‘spare her the ordeal
of having to testify twice about the unpleasant events she would have to relate.’’ Id. at 828. The Court held
that in granting this request the motions judge did not abuse his discretion because there is no requirement
that, absent suggestivity, a trial court make a reliability finding.
21.14

but whether the effect of the procedures was suggestive, a question the identifying witness alone
can answer. Some judges may require that counsel subpoena the identifying witnesses, call them
to the stand, and question them through direct examination.
Second (and regardless of whether the identifying witness testifies), appellate resolution of all
issues is facilitated by a full record on both suggestivity and reliability. The Court of Appeals
has ‘‘frequently encouraged trial judges, even when finding there was no suggestivity, to make
explicit reliability findings.’’ Greenwood, 659 A.2d at 828 (citing Henderson v. United States, 527
A.2d 1262, 1269 (D.C. 1987)); Johnson v. United States, 470 A.2d 756, 759 n.1 (D.C. 1983);15 see
also the pre-Brathwaite cases, e.g., United States v. Holiday, 482 F.2d 729, 734 (D.C. Cir. 1973);
Clemons, 408 F.2d at 1237. The doctrine of judicial economy is even more compelling under
current law, where suggestivity must be examined for all purposes in the context of reliability
and the effect of suggestivity can be gauged only in relation to the strength of the factors supporting
the identification. Thus, given a minimal showing of suggestivity—a determination which itself
under United States v. Sanders, 479 F.2d 1193 (D.C. Cir. 1973), and United States v. Perry, 449
F.2d 1026 (D.C. Cir. 1971), requires knowledge of the circumstances of the initial crime scene
sighting—the appellate court will be unable, without full exploration of the ‘‘independent source’’
issue, to make the requisite analysis.
Third, reliability is relevant regardless of suggestivity, if the motion asserts Sheffield or Beatty as
well as Brathwaite-Biggers grounds. And the Supreme Court’s recognition of the factors critical
to reliability strongly support the right of the defense to explore fully the witness’s ability to
observe (eyesight, influence of alcohol or drugs, emotional state, etc.) as well as the conditions
under which the observations took place (lighting, distance, duration of incident, etc.).
Finally, the circumstances of the crime scene are inextricably intertwined with the issue of suggesti-
vity. See Sanders, 479 F.2d 1193 (witness’s description of perpetrator is critical to issue of suggesti-
vity because it may reveal that some aspect of suspect’s appearance at later identification uniquely
or unfairly corresponded with some feature noticed by witness); Perry, 449 F.2d at 1037 (‘‘the
ability of the witness to observe the offender in the first instance’’ should be considered ‘‘in
determining the fairness of the confrontation’’).
The defense is also entitled to cross-examine on any discrepancy between prior descriptions and
the defendant’s actual appearance. See Thomas v. United States, 382 A.2d 24, 28 (D.C. 1978).
Biggers makes previous identifications ‘‘at any . . . showups, lineups or photographic showings’’
similarly relevant. 409 U.S. at 201.




15
  See also Patterson v. United States, 384 A.2d 663, 668 n.7 (D.C. 1978) (usual two-step inquiry encouraged
where ‘‘there is some evidence that initial identification may have been equivocal or suggested’’); Jackson
v. United States, 623 A.2d 571, 589 n.13 (D.C. 1993) (‘‘We reiterate, as we have so many times, that it is
important for the trial court to make the second inquiry, i.e., if unduly suggestive whether the resulting
identification is reliable’’); Johnson, 470 A.2d at 759 n.1:
         Even where the trial court finds that a pretrial identification procedure was not unduly
         suggestive and consequently could not taint a subsequent identification, it is helpful to
         this court for the trial judge to go on to make findings regarding independent sources
         that support the reliability of the subsequent identification.
                                                                                                          21.15

                                  2. Waiving the Defendant’s Presence

It is important that identifying witnesses not see the defendant during the motions hearing. Thus,
the defendant generally should waive the right to be present during those witnesses’ testimony.16
‘‘[T]he defendant does have a right to waive his presence at a pretrial suppression hearing . . . in
which no legitimate interests of the government or of the defendant would [be] prejudiced by the
defendant’s absence.’’ Singletary v. United States, 383 A.2d 1064, 1070 (D.C. 1978). The defendant
should execute a written waiver, acknowledging a knowing, voluntary and intelligent waiver of
the right to be present. If identification is seriously contested, and especially if the defendant
waives his presence at the hearing, counsel must take care to avoid chance encounters between
the defendant and the witnesses, discussed supra Section I.D.2.

                              II. OTHER CONSTITUTIONAL ISSUES

                      A. Sixth Amendment Issues: Right to Counsel at Lineup

The Sixth Amendment right to counsel applies to any lineup that occurs ‘‘at or after the initiation
of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing,
indictment, information, or arraignment.’’ Kirby v. Illinois, 406 U.S. 682, 689 (1972); see also
United States v. Wade, 388 U.S. 218, 237 (1967); Poole v. United States, 630 A.2d 1109, 1125
(D.C. 1993). Evidence of a lineup held without counsel must be suppressed. See Moore v. Illinois,
434 U.S. 220 (1977); Wade, 388 U.S. at 218; Gilbert v. California, 388 U.S. 263 (1967). Where
a lineup is held without counsel present, an in-court identification by the same witness can be
received into evidence only if the government shows by clear and convincing evidence that the
in-court identification is based on observations of the defendant independent of the tainted
confrontation—that is, has an ‘‘independent source.’’ Wade, 388 U.S. at 239-40.17
There is no right to counsel at identification procedures other than lineups. See, e.g., United
States v. Ash, 413 U.S. 300, 312 (1973). Furthermore, identifications made from a photograph
of a lineup have been admitted, notwithstanding counsel’s absence at the actual lineup. See Poole,
630 A.2d at 1126.

            B. Fourth Amendment Issues: Identification Resulting from Illegal Seizure

An out-of-court identification can be suppressed as the fruit of an illegal seizure. See, e.g., Bryant
v. United States, 599 A.2d 1107 (D.C. 1991) (unlawful entry led to evidence of defendant’s presence
that contributed to identification being suppressed); Gatlin v. United States, 326 F.2d. 666, 672
(D.C. Cir. 1963); compare United States v. Crews, 445 U.S. 463, 474, 477 (1980) (leaving question
open and declining to suppress in-court identification because police knowledge of defendant’s
identity and complainant’s ‘‘independent recollections’’ of defendant antedated unlawful arrest).
See also Cantizano, 614 A.2d at 872-73 (recognizing identification as potential fruit of Fourth
Amendment violation, but finding seizure lawful). The police only need to establish that they had



16
   The witness need not identify the defendant at the hearing before making an in-court identification before
the jury. See Allen v. United States, 580 A.2d 653, 657 (D.C. 1990).
17
   An appellate court may still, of course, apply a harmless error test. See Gilbert, 388 U.S. at 274 (conviction
might be affirmed if error could be found harmless beyond a reasonable doubt).
21.16

a reasonable, articulate suspicion to stop a suspect before conducting a showup identification.
See In re T.L.L., 729 A.2.d 334 (D.C. 1999).

        III. GROUNDS FOR REQUESTING AN IDENTIFICATION PROCEDURE

                                   A. Lineups at Government Request

The client may be ordered to stand in a lineup by any of three procedures. The first is an ‘‘Adams-
Anderson’’ order. See United States v. Anderson, 490 F.2d 785 (D.C. Cir. 1974); Adams v. United
States, 399 F.2d 574 (D.C. Cir. 1968); see also United States v. Eley, 287 A.2d 830 (D.C. 1972).
These cases authorize the court to order a lawfully detained defendant to stand in a lineup to be
viewed by witnesses to the charged crime and other crimes. There is some ambiguity in the
circumstances under which a defendant may be included in a lineup for ‘‘other crimes.’’18 See
United States v. Perry, 504 F.2d 180, 182-84 (D.C. Cir. 1974) (separate statement of McGowan, J.).
The second procedure is to obtain a lineup order issued by the Superior Court upon a showing
of reasonable suspicion that a person has committed an offense. See Wise v. Murphy, 275 A.2d
205 (D.C. 1971) (en banc). This procedure applies only to serious felonies involving grave personal
injuries or threats thereof, and requires a showing of ‘‘reasonableness.’’ The lineup is to be as
minimally intrusive on the defendant’s liberty and ‘‘as antiseptic as possible,’’ i.e., the other
participants may not be suspects or convicted criminals, ‘‘security safeguards and devices’’ are
not to be employed, no other use is to be made of the lineup or photographs of it,19 and the total
time for conducting the proceeding must be minimized. Id. at 208. A person ordered to stand in
such a lineup may challenge the order on the Fourth Amendment ground that the government
lacks sufficient information to warrant the intrusion on liberty.
Finally, the grand jury may issue a directive to stand in a lineup. The directive alone is not
sufficient to compel attendance, but if it relates to an on-going investigation the court may issue
an order enforcing it. The Court of Appeals has held under its supervisory powers that to secure
such an order the prosecutor must ‘‘make a minimal factual showing sufficient to permit the
judge to conclude that there is a reason for the lineup which is consistent with the legitimate
function of the grand jury’’— i.e., ‘‘a minimal showing of a legitimate basis for requiring the
particular lineup.’’ In re Kelley, 433 A.2d 704, 707, 710 (D.C. 1981) (en banc). That showing can
be made ‘‘by affidavit of a law enforcement officer or a formal representation of an Assistant
United States Attorney,’’ and the defense is not entitled to an adversary hearing on the issue. Id.
at 707-08, 710.
Brown v. United States, 518 A.2d 415 (D.C. 1986), held that no one may be subpoenaed to the
grand jury to receive a lineup directive without being informed of the Kelley rights. The Court
directed the government to develop an ‘‘advice of rights’’ form covering the following points:

18
   United States v. Allen, 408 F.2d 1287, 1288 (D.C. Cir. 1969), expressed the view that the government
could bring witnesses of other crimes to a lineup if the unrelated charges ‘‘involved a similar modus operandi.’’
See also Adams, 399 F.2d at 578. But compare Eley, 287 A.2d at 831 n.2 (dictum disapproving limitation
with Dublin v. United States, 388 A.2d 461, 465 (D.C. 1978) (citing Adams with apparent approval)).
19
   Dublin rejected appellant’s argument that language in the lineup order—‘‘[counsel] has approved this order
because it is for this offense only’’—barred the government from showing a photo of the lineup to a witness
in an unrelated case, where before the lineup the government had probable cause linking the defendant to
that crime and therefore could have obtained a lineup order in connection with it as well. 388 A.2d at 461.
                                                                                                 21.17

     a) The grand jury is conducting an investigation of possible violation of specific
        criminal laws;
     b) Under appropriate circumstances the grand jury may issue a directive ordering a
        person to appear in a lineup;
     c) The results of a lineup may be used in a subsequent legal proceeding, for or against
        anyone who appears in the lineup; and
     d) Anyone who receives a subpoena to appear before the grand jury to receive a lineup
        directive has a right to consult with a lawyer before complying with the directive,
        and to challenge the directive in court.
The form must be appended to the subpoena, and the prosecutor must repeat the statement of
rights to the suspect on the record before the grand jury and ask the suspect to affirm that he or
she understands them. Id. at 420.
Despite this advice, the suspect, if indigent, is not entitled to appointment of counsel to challenge
the lineup directive. Kelley rights can be enforced by contesting the directive in court before the
lineup, or by a suppression motion if the suspect is ultimately charged. See Brown, 518 A.2d at
421. Availability of the second alternative, the Court concluded, obviates the need for counsel
when the subpoena is issued. Of course, this holding does not undermine the Wade requirement
of counsel at the lineup.

                        B. Identification Procedures at Defense Request

The Court of Appeals has consistently affirmed the right of the defense to conduct a showup
before the jury at which a witness is asked to make an identification. Hollingsworth v. United
States, 531 A.2d 973 (D.C. 1987), found that the defendant should have been permitted to conduct
an in-court showup identification, by a defense witness, of the complainant as the person who
had threatened to ‘‘get’’ the defendant one day before the alleged robbery. Due process concerns
regarding suggestivity did not apply because the subject to be identified was not the defendant.
Noting that the entire defense case rested on a theory of the complainant’s fabrication, the Court
reversed the conviction. Id. at 977-79; see also Wilson v. United States, 558 A.2d 1135 (D.C.
1989) (trial court allowed defense, over government objection, to conduct in-court showup at
which two witnesses present under subpoena were shown to government witnesses during cross-
examination).
The trial court has authority to order a lineup at defense request. See United States v. Smith,
473 F.2d 1148 (D.C. Cir. 1972); United States v. Caldwell, 465 F.2d 669 (D.C. Cir. 1972); United
States v. Ash, 461 F.2d 92 (D.C. Cir. 1972), rev’d on other grounds, 413 U.S. 300 (1973). Indeed,
in some cases the identification procedures may be irreparably tainted absent such a lineup. See
United States v. Caldwell, 481 F.2d 487 (D.C. Cir. 1973).
     Generally, such a lineup may be appropriate where the defendant, on timely motion,
     makes a showing that eyewitness identification is materially at issue, and there exists,
     in the particular case, a reasonable likelihood of mistaken identification which a lineup
     would tend to resolve.
21.18

Berryman v. United States, 378 A.2d 1317, 1320 (D.C. 1977);20 see also Hollingsworth, 531 A.2d
at 973.
Berryman observed that the same principles would govern motions for an in-court lineup, but
suggested that in view of the superiority of police department facilities, in-court lineups should
be rare. The trial court may consider failure to seek an out-of-court lineup, absent exigent
circumstances, in denying a defense request for the disfavored in-court procedure. See 378 A.2d
at 1320 n.6.
Of course, defense counsel should be extremely cautious in requesting a lineup. If the witness
identifies the defendant, the lineup will strengthen the government’s case. Since it is such a high-
risk venture, it must be an especially informed one.




20
   While Jackson v. United States, 395 A.2d 99, 104-05 (D.C. 1978), did not find an abuse of discretion in
denying a defense request for a lineup, it did point out that where the government intends to have a witness
make an in-court identification, without having conducted a prior non-suggestive identification procedure,
denial of a defense request for a lineup is questionable even when the request is not made until near the
trial date.

				
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