Admissibility of Unreliable Identification Evidence
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
According to the New York-based Innocence Project, 75 percent of the nation’s 273 DNA exonerations involved eyewitness misidentification—and according to Harris County state senator Rodney Ellis, a longtime advocate of eyewitness identification reform, 86 percent of Texas’ 45 DNA exonerations (the most in the nation) involved eyewitness misidentification. Eyewitness misidentification, and its link to wrongful convictions, has been explored several times by us on this site (here, here and here).
To say that the nation’s criminal justice system has a festering constitutional problem with eyewitness misidentification is putting the issue mildly. More than four decades ago the U.S. Supreme Court in a pair of cases, Wade v. United States and Gilbert v. California, announced the groundbreaking rule that post-indictment lineups are a “critical stage” of the criminal proceedings at which a defendant enjoys the right to counsel. The following year the Supreme Court in Simmons v. United Stateslineup evidence is inadmissible if it was unduly influenced by an improper pre-trial photo array and that the test for determining whether such a photo array was “impermissibly suggestive,” trial court would be guided by the “totality of the circumstances” surrounding the lineup. Four years later the Supreme Court, in Neil v. Biggers, once again entered the lineup fray by establishing five non-exclusive factors which should be “weighed against the corrupting effect of any suggestive identification procedure in assessing [the] reliability [of a police lineup] under the totality of the circumstances.” Those factors are:
- The opportunity of the witness to view the criminal at the time of the crime;
- The witness’ degree of attention;
- The accuracy of the witness’ prior description of the criminal;
- The level of certainty demonstrated by the witness at the confrontation; and
- The length of time between the crime and the confrontation.
In decades following the pronouncement of the Biggers factors, state and federal courts have carved out differing application of those factors. Some federal courts of appeal have held that due process is violated in all identifications made under suggestive circumstances while other courts, especially state courts, have held that due process is violated only if the suggestive circumstances were orchestrated by the police. The U.S. Supreme Court recently accepted a case from New Hampshire, Perry v. New Hampshire, to resolve this conflict among the courts. The facts and circumstances surrounding the identification procedures used in the Perry case were sufficiently outlined by his counsel in his brief before the New Hampshire Supreme Court who summarily denied Perry’s appeal without oral arguments relying solely on the Biggers factors. Perry sought, and secured, certiorari review before the U.S. Supreme Court on the question listed below:
Subscribe
