In-court identification Essay Example for Free

In-court identification Essay In a criminal prosecution, the positive identification of the accused would most likely result in conviction. The likelihood that the defense would contest or suppress in-court identification by prosecution witnesses is therefore high. Over the years, our courts have formulated rules regarding the propriety of suppressing in-court identification by witnesses. The accuracy of eyewitness identification depends on factors personal to the witness such as: (1) perception; (2) memory; (3) communication; and (4) candor. (Moses, 2001) However, the suppression of in-court identification testimony largely depends upon the admissibility of the out-of-court identification, which preceded it. Such admissibility can be challenged principally on two grounds: first, that it violated the right to counsel of the accused under the Sixth Amendment or, second, that it violated due process. For purposes of this paper, the former will not be discussed since what is involved in the issue at hand is a photographic identification and therefore the accused cannot invoke his right to counsel, be it pre-indictment or post-indictment, since there is no adversarial confrontation involved. (United States vs. Ash, 1973) The case most applicable is Manson vs. Brathwaite, 432 U. S. 98 (1977). The facts of the case are: Glover, a trained undercover state police officer purchased heroin from a seller through the open doorway of an apartment while standing for two or three minutes within two feet of the seller in a hallway illuminated by natural light. A few minutes later Glover described the seller to another police officer as being a colored man, approximately five feet eleven inches tall, dark complexion, black hair, short Afro style, and having high cheekbones, and of heavy build. The other police officer, suspecting from the description that respondent might be the seller, left a police photograph of respondent at the office of Glover, who viewed it two days later and identified it as the picture of the seller. (Manson vs. Brathwaite, 1977) The court identified two issues. First, whether the police used an impermissibly suggestive procedure in obtaining the out-of-court identification. Second, whether, under all the circumstances, that suggestive procedure gave rise to a substantial likelihood of â€Å"irreparable misidentification. † (Manson vs. Brathwaite, 1977) As to the first inquiry, the court held that the photographic identification was â€Å"impermissibly suggestive† and â€Å"unnecessarily so. † (Manson vs. Brathwaite, 1977) However, the court ultimately ruled in favor of the admissibility of the photographic identification and did not take a per se exclusion route as what happened in the case of Stovall vs.Deno, 388 U. S. 293 (1967), which declared that the evidence of an out-of-court identification is inadmissible if the evidence revealed that the out-of-court confrontation was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law. The court declared that â€Å"reliability is the linchpin in determining the admissibility of identification testimony† (Manson vs. Brathwaite, 1977) The Court relied upon several factors, the â€Å"Biggers factors† (George, 2005, p. 9), that provide the basis in determining whether the witness had a picture of the perpetrator in his or her mind before the police suggestiveness occurred: 1) the amount of time or opportunity to view the suspect during the crime; 2) the witness’s degree of attention while viewing the suspect (casual observer or victim); 3) the accuracy of the description given prior to the identification procedure; 4) the witness’ level of certainty; and 5) the time between the offense and the identification. (Neil vs. Biggers, 1972) In the issue at hand before us, it must be determined: first, whether or not the photographic identification procedure was â€Å"impermissibly suggestive† and â€Å"unnecessarily so†; second, whether or not the â€Å"totality of the circumstances† (Manson vs. Brathwaite, 1977) would show that the identification made was indeed reliable. First, it is submitted that the out-of-court identification by the tellers are impermissibly suggestive and unnecessarily so. According to the cases of Manson v. Brathwaite, 432 U. S. 98 (1977) and Mason v. United States, 414 F. 2d 1176 (D. C. Cir.1969), showing a single photograph is highly suggestive and the suggestivity is unnecessary unless there are compelling circumstances which would show otherwise. The act of the police officer in showing to one of the tellers the photograph of the defendant is considered unnecessarily suggestive as laid down by jurisprudence. The inquiry therefore which needs to be addressed is, whether or not the out-of-court identification by the tellers is reliable, regardless of the impermissible and unnecessary suggestive procedure conducted by the police officer a few day after their statements were noted. It is submitted that the out-of-court identification by the tellers are not reliable for the following reasons. First, there are no facts which suggest the amount of time or opportunity the tellers had in viewing the suspect during the commission of the robbery nor the witnesses’ degree of attention while viewing the suspect. Second, the level of certainty of the tellers as to the identity of the accused is highly contentious. That one of the tellers called up the police station and identified the defendant as the robber is not reliable because of the fact that she had seen a report on television the previous night regarding the arrest of the defendant. Such circumstance can be regarded as â€Å"suggestive. † Her â€Å"belief† that the arrested person is the robber is not a sufficient indicia of reliability and certainty on the part of the witness. Also, the identification by the other teller of the defendant as the robber by pointing to a picture of him in a newspaper article about the arrest is suggestive and highly suspect for the same reason. Moreover, the police officer conducting the investigation could have tested the assertions of the witnesses by conducting a line-up or photographic array identification subsequent to the taking of statements. But he did not. It is therefore concluded that the in-court identification by the witnesses should be suppressed for being made under impermissible and unnecessary suggestive procedure and for being unreliable considering the totality of all circumstances. WORKS CITED: George, A. (March, 2005). â€Å"That’s the man who did it! † Identification Evidence Under the 5th and 6th Amendments. † Retrieved November 2, 2006, from http://www.fd. org/pdf_lib/Due%20Process%20Under%205th%20Amendment. pdf Moses, R. (2001). Misidentification: The Caprices of Eyewitness Testimony in Criminal Cases. Retrieved November 2, 2006, from http://www. criminaldefense. homestead. com/eyewitnessmisidentification. html Motions to Suppress Eyewitness Identification Testimony. Retrieved November 2, 2006, from http://www. pdsdc. org/Cpi/CH_21. pdf. LEGAL SOURCES: Manson vs. Brathwaite, 432 U. S. 98 (1977). Mason v. United States, 414 F. 2d 1176 (D. C. Cir. 1969). Neil vs. Biggers, 409 U. S. 188 (1972). Stovall vs. Deno, 388 U. S. 293 (1967). United States vs. Ash, 413 U. S. 300 (1973).