MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001
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Part V. Evidence - Part V(A) 2  Admissibility: Identification Testimony

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part V(A) 2    Admissibility: Identification Testimony -- General Principles

CAVEAT: See Publication Preface and Caveats.

Related FORECITE National™ Links

Chapter 31: Identification: Eyewitness (Mistaken Identity)

Identification testimony is admissible provided that any pretrial identification procedure was not impermissibly suggestive or, if impermissibly suggestive, did not create a substantial risk of misidentification.

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

Determining the admissibility of identification testimony is a two-step process:

1. The court must decide whether the out-of-court identification procedure was unnecessarily
     suggestive.

2. If the procedure is found to have been unnecessarily suggestive, the court must then determine
    whether, considering the totality of circumstances, the suggestive procedure created a
    substantial risk of misidentification.

If the answer to either of these inquiries is negative, testimony as to the identification is admissible.

Neil v. Biggers, 409 U.S. 188 (1972)
Manson v. Brathwaite, 432 U.S. 98 (1971)
United States v. Gidley, 527 F.2d 1345 (5th Cir. 1976)
United States v. Freie, 545 F.2d 1217 (9th Cir. 1976)
United States v. Milhollan, 599 F.2d 518 (3d Cir. 1979)
United States v. Hadley, 671 F.2d 1112 (8th Cir. 1982)
United States v. Hamilton, 684 F.2d 380 (6th Cir. 1982)
United States v. Briley, 726 F.2d 1301 (8th Cir. 1984)

In assessing the reliability of the identification testimony in light of the suggestive identification procedure, the court must consider

1. the opportunity of the witness to observe the criminal at the time of the crime;

2. the degree of attention of the witness at the time of the crime;

3. the accuracy of the witness's prior description of the criminal;

4. the level of certainty demonstrated by the witness at pretrial confrontation; and

5. the length of time between the crime and the pretrial confrontation.

Manson v. Brathaite, 432 U.S. 98 (1977)
United States v. Barrett, 703 F.2d 1076 (9th Cir. 1983)
Velez v. Schmer, 724 F.2d 249 (1st Cir. 1984)
United States v. Woolerly, 735 F.2d 818 (5th Cir. 1984)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

A lineup is the preferable means of identification.

United States v. Gidley, 527 F.2d 1345 (5th Cir. 1976)

The defendant may be compelled by force, if necessary, to attend a lineup.

Appeal of Maguire, 571 F.2d 675 (1st Cir. 1978)

Even though there is no constitutional right to compel the government to conduct a lineup, the court can and should compel the government to do so if the interests of justice and fair play require it.

United States v. Key, 717 F.2d 1206 (8th Cir. 1983)

A defendant does not, however, have a right to demand a lineup.

United States v. ex rel. Clark v. Fike, 538 F.2d 750 (7th Cir. 1976)
United States v. Marchand, 564 F.2d 983 (2d Cir. 1977)
Branch v. Estelle, 631 F.2d 1229 (5th Cir. 1980)

The decision whether to grant a defendant's motion for a lineup is within the discretion of the trial judge.

United States v. Robertson, 606 F.2d 853 (9th Cir. 1979)
United States v. Harvey, 756 F.2d 636 (8th Cir. 1985)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

An in-court identification can itself be impermissibly suggestive, for ex ample, if a defendant is the only black person in the courtroom and is seated next to defense counsel at trial.

United States v. Archibald, 734 F.2d 938 (2d Cir. 1984)
United States v. Rogers, 126 F.3d 655 (5th Cir. 1997)

When informed that identification is a critical issue in a case, the court would be well-advised to direct the government to conduct an out-of-court lineup.

United States v. Brown, 699 F.2d 585 (2d Cir. 1983)

Defense counsel may seek court permission to seat two or more persons at counsel's table, to have no one at counsel's table, or to have a number of individuals resembling the defendant in court.

United States v. Thoreen, 653 F.2d 1332 (9th Cir. 1981)

There is no constitutional entitlement to an in-court lineup or other particular method of lessening the suggestiveness of in-court identification, such as seating the defendant elsewhere in the room. Such matters are within the discretion of the trial court.

To ensure the accuracy and reliability of an in-court identification by an eyewitness, procedures such as placing the defendant in the courtroom audience or staging an in-court lineup should be employed wherever necessary.

United States v. Sebetich, 776 F.2d 412 (3d Cir. 1985)

Prior to a proposed in-court identification, the court may permit the defendant to sit in the back of the courtroom with other persons of similar appearance.

Government of Virgin Islands v. Petersen, 507 F.2d 898 (3d Cir. 1975)

The substitution of another person for the defendant at counsel's table prior to an in-court identification is unethical.

United States v. Thoreen, 653 F.2d 1332 (9th Cir. 1981)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

31.3.7 Eyewitness Identification: Single Or One-Witness Identification

Display of a single photograph of the suspect alone is one of the most suggestive and therefore most objectionable methods of pretrial identification.

Manson v. Brathwaite, 432 U.S. 98 (1977)
Israel v. Odom, 521 F.2d 1370 (7th Cir. 1975)
United States v. Kimbrough, 528 F.2d 1242 (7th Cir. 1976)

Testimony relative to a single-person show-up immediately after a crime occurs may be admissible.

United States v. Williams, 626 F.2d 697 (9th Cir. 1980)
United States v. Rice, 652 F.2d 521 (5th Cir. 1981)
United States v. Bagley, 772 F.2d 482 (9th Cir. 1985)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

According to FRE 801(d)(1)(C), an identifying statement is not hearsay if the declarant testifies at trial to an identification that he or she has previously made, after perceiving the person identified, and is subject to cross-examination concerning the testimony.

A witness may be permitted to testify that he or she previously identified a photograph of the defendant and may be allowed to identify at trial the particular photograph he or she identified during the pretrial investigation.

Anderson v. Maggio, 555 F.2d 447 (5th Cir. 1977)

A witness may testify to a pretrial photo-spread identification even though he or she is unable to make a positive in-court identification at trial.

Government of Virgin Islands v. Petersen, 507 F.2d 898 (3d Cir. 1975)
United States v. Keller, 512 F.2d 182 (3d Cir. 1975)
Adail v. Wyrick, 711 F.2d 99 (8th Cir. 1983)

A witness who has identified a defendant from a photo spread is properly permitted to identify the defendant in court at trial.

United States v. Givens, 767 F.2d 574 (9th Cir. 1985)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

A witness is permitted to identify a certain photograph of the defendant in court at trial and testify to selecting that photograph from a photo spread as "resembling" the perpetrator of the crime. Although a prior identification may be equivocal, the jury is entitled to give it such weight as it will after hearing the testimony of the witness under direct and cross-examination.

United States v. Famulari, 447 F.2d 1377 (2d Cir. 1971)
United States v. Hudson, 564 F.2d 1377 (9th Cir. 1977)

The fact that an identification in court is less than positive does not render it inadmissible.

United States v. Malatesta, 583 F.2d 748 (5th Cir. 1978)
Frank v. Blackburn, 605 F.2d 910 (5th Cir. 1979), rev'd on other grounds, 646 F.2d 873 (5th Cir. 1980)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

25.15.1 Mugshots/Police Photos Of Defendant: Cautionary Instruction

Admission of mug shots is in conflict with rules of evidence prohibiting the introduction of testimony regarding a defendant's bad character or past criminal record.

United States v. Sawyer, 504 F.2d 878 (5th Cir. 1974)
United States ex rel. Bleimehl v. Cannon, 525 F.2d 414 (7th Cir. 1975)
United States v. Rixner, 548 F.2d 1224 (5th Cir. 1977)

If the introduction of mug shots is unavoidable, steps must be taken to minimize the prejudicial impact on the defendant.

United States v. Carrillo-Figueroa, 34 F.3d 33 (1st Cir. 1994)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part V(A) 2h    Admissibility: Identification Testimony: Defendant Entitled To Cautionary Jury Instruction Relative To Identification Testimony

CAVEAT: See Publication Preface and Caveats.

FORECITE National™ Materials Related To This Issue:

Chapter 31: Identification: Eyewitness (Mistaken Identity)

Upon request, the defendant is entitled to a special instruction to the jury on the issue of identification, which emphasizes the dangers inherent in identification testimony, the need to scrutinize such evidence with care, and the need to find the circumstances of the identification convincing beyond a reasonable doubt before returning a verdict of guilty.

United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972)
United States v. Marchand, 564 F.2d 983 (2d Cir. 1977)
United States v. Kavanagh, 572 F.2d 9 (1st Cir. 1978)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

31.2.3 Expert Witnesses

31.2.4 Expert Witness Instruction In Place Of Expert Testimony

The trial court has discretion to admit identification testimony by an expert witness if the expert proposes to testify as to identification features not within the everyday experience of laypersons.

United States v. Burke, 506 F.2d 1165 (9th Cir. 1974)
United States v. Green, 525 F.2d 386 (8th Cir. 1975)
United States v. Collins, 559 F.2d 561 (9th Cir. 1977)
United States v. Sellers, 566 F.2d 884 (4th Cir. 1977)(held, contrary to general rule, that expert could point out similarities and differences between features of defendant and those of person shown in photograph)

United States v. Dorsey, 45 F.3d 809 (4th Cir. 1995)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

United States v. La Pierre, 998 F.2d 1460 (9th Cir. 1993)
United States v. Jackman, 48 F.3d 1 (1st Cir. 1995)
United States v. Ellis, 121 F.3d 908 (4th Cir. 1997)
United States v. Pierce, 136 F.3d 770 (11th Cir. 1998)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

Identification of the defendant by a police officer or by a parole officer to be avoided, if possible, because those individuals cannot be fully cross-examined without the risk of eliciting prior criminal activity of the defendant.

United States v. Butcher, 557 F.2d 666 (9th Cir. 1977)
United States v. Farnsworth, 729 F.2d 1158 (8th Cir. 1984)
But see United States v. Henderson, 68 F.3d 323 (9th Cir. 1995)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

In every criminal case, the government is required to prove the identity of the person who committed the crime. To support a conviction, the government must present evidence at trial that the defendant was the perpetrator of the charged crime. This is generally provided by an in-court identification of the accused; however, it can also be inferred from other evidence.

United States v. Darrell, 629 F.2d 1089 (5th Cir. 1980)
United States v. Weed, 689 F.2d 752 (7th Cir. 1982)
United States v. Alexander, 48 F.3d 1477 (9th Cir. 1995)

For example, it is not necessary to have an in-court identification if there is testimony of a pretrial identification of the defendant as the perpetrator of the crime.

United States v. Singleton, 702 F.2d 1159 (D.C. Cir. 1983)