Using Expert Witnesses to Mitigate the Prejudice to Defendants In Regard to Identification Procedures

There are many prejudicial effects that a criminal defendant can encounter throughout his proceedings.  One of the most prejudicial effects, and currently in hot contest, revolves around eyewitness identifications.  In-court identifications are very prejudicial and detrimental to a defendant's case, but there are also problems with any extra-judicial identification procedures.  Many jurisdictions are now taking measures to heighten the accuracy of identification procedures, but this still might not be enough to outweigh the innate obstacles that come with eyewitness identification.  This issue has been on the back burner of the judicial system since the early 1900’s.  As early as 1907, Hugo Munsterberg published “On the Witness Stand,” where he questioned the reliability of eyewitness identification. Yale Professor Edwin Borchard later wrote “Convicting the Innocent,” after he studied sixty five wrongful conviction cases and found that eyewitness misidentification was the leading cause of wrongful convictions.  Now it is finally time to bring the issue into the spotlight.  

No Cheating Allowed: Prince George’s County Adopts the Double-Blind Method of Eyewitness Photo Identification

On February 9, 2014, the Prince George’s County Police Department (MD) announced that it will start conducting photo lineups using the “double-blind” method.  The new changes will require police officers to institute two safeguards when showing eyewitnesses a photo lineup: (1) police officers must show the witness the photos one at a time, rather than all at once; and (2) the police officer showing the photos must be unfamiliar with the case.  The change is part of an effort to minimize false identifications and subsequently, wrongful convictions.  The accuracy of photo lineups has been a hot topic over the past decade as DNA evidence has been used more frequently to overturn convictions.  A recent study by the innocence project found that eyewitness misidentification plays a role in over 75% of convictions overturned by DNA testing, making it the single greatest cause of wrongful convictions nationwide.

In-Court Identification: Is It Inherently Prejudicial?

There is a hotly contested battle between the prosecution and the defendant on the reliability of various types of identification procedures.  Anyone in the criminal field will have heard about a photo array or a lineup.  However, there is one type of procedure that seems to fly under the radar: the in-court identification.  This presents a real due process concern because even though eyewitness testimony is unreliable and open to post experience suggestion, it is still very persuasive to juries.  Further, an in-court identification is much more dramatic than a pretrial identification procedure and thus has the potential to compound the persuasiveness to juries.

          

The issue with any identification procedure is whether it is unduly suggestive and would violate the defendant’s due process rights.  The United States Supreme Court has laid out the process for assessing a violation of such rights in Neil v. Biggers.  The burden rests on the defendant to show why the identification was unduly suggestive.  If the burden is proven, the prosecution has the opportunity to argue the credibility of the identification by balancing the five factors the Court has outlined under the totality of the circumstances.  The factors are: (1) the witness's opportunity to view the criminal at the time of the crime; (2) the witness's degree of attention at the time of the crime; (3) the accuracy of the witness's prior description of the defendant; (4) the witness's level of certainty when identifying the suspect at the confrontation; and (5) the length of time that has elapsed between the crime and the confrontation.

           

The Biggers test has been primarily used for out of court identifications, but is there an argument to be made that an in-court identification is unduly suggestive on its face?  The United States Supreme Court has declined to hear the case, but there are several theories that have developed in differing jurisdictions.^[1]  United States v. Archibald, a second circuit bank robbery case, analyzes the issue and recognizes there is a due process concern with the defendant sitting alone at the counsel table.  The court realizes that this type of in-court identification could easily amount to a show up lineup, which is generally inadmissible.  It ruled that in this case, the identification was “so clearly suggestive as to be impermissible.”

           

Both the sixth and eighth circuits have addressed the issue to a degree.  Both jurisdictions seemed to have sidestepped the in-court identification issue by the same means.  The eighth circuit recognized in United States v. Rundell that the witness’s knowledge that it was the defendant sitting at the counsel table made the in-court identification inherently impermissibly suggestive.  However, the court applied the Biggers test to the case and ruled that the five factors together with the totality of the circumstances outweighed any prejudice and the identification was sufficiently reliable.  The sixth circuit similarly recognized the potential for prejudice in an unduly suggestive in-court identification.  In United States v. Hill, the court ruled that the analysis of any in-court identification would essentially be the same as pretrial identification procedures.  Thus, they would be governed by the same Biggers totality of the circumstances test.

           

These beliefs are in sharp contrast to the other side of the coin.  Other jurisdictions have denied hearings to suppress in-court identifications.  Maryland is an example of the thought pattern of this argument.  The court in Green v. State has ruled that a taint hearing applies only to extrajudicial identifications and not in-court identifications.  The court outlined the correct way to deal with a purportedly tainted in-court identification properly was through cross-examination.  The court pointed out that effectually, an in-court identification is no different than any other piece of evidence and cross-examination is the appropriate way to alleviate any due process concerns.  Note that Green was later reversed and declared a mistrial because the prosecutor committed error after specifically agreeing not to ask any questions about an in-court identification but did so anyway.

           

So is there a stick caught in the cog of due process?  It seems to at least some degree there is.  While even the more reserved courts recognize that it could be a problem, they have allowed old remedies such as cross-examination to deal with the issue.  However, it seems that many jurisdictions view the in-court identification procedure either on par with other extrajudicial identification procedures, or even more prejudicial.  Practitioners should check the case law in their jurisdiction to see what methods are available to them for suppressing any in-court identification.

Michael Bayern

Junior Staffer, Criminal Law Practitioner

Image from Wikimedia Commons.

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^[1]United States v. Ravich, 421 F.2d 1196, 1202 (2d Cir.) cert. denied, 400 U.S. 834 (1970).

Jerry Lee Jenkins: Wrongfully Convicted, Never Gave Up

June 7, 2013 is a day Jerry Lee Jenkins will always remember.  It was the day he joined over three hundred other men and women who were exonerated with the use of post-conviction DNA testing.  Mr. Jenkins had been fighting to prove his innocence since he was wrongfully convicted in 1987 for the brutal rape of a young woman in Waldorf, Maryland.  On the evening of February 6, 1986 the woman, a real estate agent, was at a model home when a man came in, concealed his face with a stocking and pulled a knife on her.  The man covered the woman’s face and proceeded to rape her.  The woman was able to get a partial glance at his face.  The woman would later admit at a photo lineup with Mr. Jenkins and to the jury that Mr. Jenkins looked like the man who attacked her but she was not sure it was him.  An expert from the FBI testified at trial that Mr. Jenkins was within four percent of the population that could have contributed to the biological material left at the crime, which is still a large pool of possible offenders.  Mr. Jenkins was convicted regardless. 

Before Mr. Jenkins was convicted, a detective noticed that the 1986 rape was very similar to another rape committed over a year prior, in 1984, and only a few miles from the 1986 rape.  That rape involved a similar victim, location, and offender characteristics.  The police even contacted the FBI to conduct a profile of a potential serial rapist.  Mr. Jenkins, only twenty-five at the time, had recently been arrested on an unrelated crime when the police decided to interview him.  Mr. Jenkins was tested against the evidence from the 1984 rape and he was excluded as the suspect.  However, the police continued to try to build a case against Mr. Jenkins for the 1986 rape.  They showed the victim an outdated picture of Mr. Jenkins in a photo line-up. She said Mr. Jenkins and her attacker looked similar but admitted she could not be certain they were the same.

Eyewitness misidentification has been found in seventy-five percent of wrongful conviction cases and is the leading contributor of wrongful convictions.  There has been a considerable amount of research conducted to determine why such misidentification occurs so frequently and methods to prevent it.  People often think their memory is better than it actually is, especially in stressful situations.  The woman in the 1986 rape admitted that she was not sure that Mr. Jenkins was her attacker; however, the jury was likely influenced by her testifying that they looked similar. 

Eyewitness misidentifications can also be caused by suggestive techniques during a line-up.  This may include the suspect wearing a different colored shirt than the rest of the people in a line-up or a police officer telling the witness to take another look at the suspect.  A successful method to diminish the risk of eyewitness misidentifications is to administer a “double-blind” line-up in which neither the person conducting the line-up nor the witness knows the suspect.  Researchers suggest that the line-up should be administered with photographs presented to the witness in sequential order, having the witness look at each photo, determine if it is the offender and move on to the next photo.  Defense attorneys should fight for this kind of photo line-up or ensure that traditional line-ups are not overly suggestive.  Prosecutors and police ought to be just as concerned with the high percentage of eyewitness misidentifications that seem to occur in wrongful conviction cases.      

After Mr. Jenkins was convicted, he sought to have DNA testing done but because DNA profiling was in its early stages, the test was inconclusive.  Mr. Jenkins was sentenced to life in prison.  He continued to file unsuccessful appeals as the process of DNA profiling advanced.  In 2000 when it seemed more likely that Mr. Jenkins could get another trial after the Maryland Court of Appeals ruled that evidence of another perpetrator could be permitted at trial, the prosecution offered to vacate Mr. Jenkins’ conviction if he took an Alford plea, a guilty plea that acknowledges the prosecution has sufficient evidence to convict him on the 1986 rape but allows him to maintain his innocence.  In return, the prosecution would recommend a shorter sentence with the possibility of release in 2010 on probation.  He accepted.

In 2004 the DNA from the 1984 rape was run through CODIS, the FBI’s DNA database.  The DNA belonged to Norman Derr, who was serving a life sentence in Virginia for a 1988 rape that was very similar to the Maryland rapes.  Mr. Derr was suspected of multiple rapes in Virginia.  In 2007 the Mid Atlantic Innocence Project joined Mr. Jenkins’ fight, accepting him as a non-DNA case since it was believed that there was no more evidence from the 1986 rape that could be tested.

In 2010 Mr. Jenkins was released, but he was not finished with his fight to clear his name.  A year later, the big break came when a box of evidence from the 1986 rape was found and DNA testing was conducted.  Not only was Mr. Jenkins excluded by the DNA in the 1986 rape but the DNA evidence matched Mr. Derr’s DNA.  On June 7, 2013 Mr. Jenkins finally won his motion for a new trial, filed previously in February and supported by the State, the case was dismissed. 

Mr. Jenkins’ story is one of many in which post-conviction DNA testing was used to right a terrible wrong.  As of May 24, 2013, all 50 states have laws for access to post-conviction DNA testing.  These laws are extremely important in overturning wrongful convictions, enabling the true perpetrators to be incarcerated and ensuring that the innocent are freed. 

Unfortunately, there are cases of wrongful convictions that do not contain any DNA evidence that can be tested.  Those battles for the truth can be much more difficult.  It is essential that the public and especially members of the criminal justice system are aware of wrongful convictions and their characteristics, as well as the measures that can be taken to implement change to correct and prevent them, such as DNA Access laws or non-suggestive photo line-ups.  The adage that it is better to let 1,000 guilty men go free than convict an innocent man may one day be unnecessary.  Relatively simple measures can be taken to prevent those guilty men from going free and that innocent person from being wrongfully convicted in the first place.       

Raleigh Mark

Blog Editor, Criminal Law Brief