7.1 - Preliminary Hearings7.2 - Pretrial Conferences7.3 - Pretrial Motions Processs7.4 - Use of Statements7.5 - Use of Seized Evidence7.6 - Eyewitness Identification Procedures7.7 - Interlocutory Appeals7.8 - Sentencing7.9 - Boulder Integrated Treatment Court


There is often no more dramatic a moment in a trial than when the victim of a crime points to the defendant and says “That’s the one who did it.” Many people believe that eyewitness identification testimony is both reliable and persuasive. Some studies have shown that eyewitness identification is not nearly as reliable as most people believe. Everyone agrees that only those identifications that are reliable and trustworthy should be permitted as evidence on a trial. Various court decisions, based on the constitution and general notions of due process, have established a method for making this determination.

Identification of the accused as the perpetrator of the crime is an element in every criminal prosecution that must be proven by the prosecution beyond a reasonable doubt. The reliability of the identification is ordinarily an issue of fact for the jury to decide. Therefore, for example, a victim’s inability to identify a defendant positively as the assailant goes to the weight of the evidence, not its admissibility. However, constitutional principles sometimes determine whether, as a matter of law, testimony by a witness identifying the accused as the perpetrator is even admissible at trial in the first place.

Generally, identification evidence of the defendant as the perpetrator of the crime can be offered by the prosecution at trial in two ways: identification of the defendant by an eyewitness at trial, and/or testimony by a witness that there has been a pretrial identification of the defendant as the perpetrator by an eyewitness. A witness will be allowed at trial to identify the defendant as the perpetrator of the offense, unless the court determines that the witness’ identification has been made unreliable by an impermissibly suggestive pretrial lineup procedure. Even if the court determines that the pre-trial lineup procedure was impermissibly suggestive, the court may still allow an in-court identification of the defendant if the court determines that the witness has an independent basis for the identification; that is, that the witness could reliably identify the defendant even in the absence of the improper pretrial identification procedure. A witness will also be allowed to testify about the pretrial identification itself unless the court makes the same finding about impermissible suggestiveness.

Whenever the prosecution intends to offer eyewitness identification at trial, the defense is entitled to an evidentiary hearing to determine the circumstances of any pretrial identification and to challenge the admissibility of both the pretrial and the in-trial identification. A Motion to Suppress Identification asks the court to rule whether the identification testimony should be allowed. The defendant has the burden of proof of establishing that the identification procedures were impermissibly suggestive and have tainted the reliability of the identification. Counsel can compel disclosure of photographs and other circumstances surrounding pretrial identification procedures in order to help resolve the issue of admissibility.

Identification testimony that is independent of the observations made at the time of the crime is usually the product of 1) a formal in-person lineup of an array of persons; 2) a formal photographic line up; 3) an informal one-on-one showup, usually at the scene; 4) an informal photographic identification, usually at the police department while looking through a series of photographs; 5) an accidental encounter; or 6) a confrontation at a pretrial hearing.

A post-charging pretrial lineup at which the accused is exhibited to identifying witnesses is a “critical stage” of the criminal prosecution and if the police conduct such a lineup in the absence of defense counsel, the accused’s Sixth Amendment right to counsel may have been violated. This rules applies whether or not the confrontation is unduly suggestive; however, the right to counsel applies only to those identification procedures conducted after the accused has been formally charged in adversary judicial proceedings. A post-charging display of photographs, unlike a lineup, is not a crucial stage of the prosecution at which the accused is constitutionally entitled to the presence of counsel. A pre-charging identification procedure, whether photographic or in-person, does not implicate the right to counsel.

Regardless of the stage of the criminal prosecution and whether or not the right to counsel attaches, and regardless of the presence or absence of counsel, a pretrial identification procedure is unconstitutional if it is “unnecessarily suggestive and conducive to irreparable mistaken identification.” Lineups should be conducted in a manner that does not draw attention to the defendant or pressure the witness to make an identification. The trial court should consider the totality of the circumstances in determining whether the pretrial lineup procedure was unnecessarily suggestive, and whether that suggestiveness renders the identification itself unreliable. Identification testimony should be excluded if the circumstances give rise to a “substantial possibility” of misidentification.

Even if the pretrial identification was unconstitutionally suggestive, the witness may still identify the defendant at trial if the trial judge determines that the in-court identification would be “independent” of the pretrial identification, i.e. the identification at trial is based upon the witness’ observation of the perpetrator during the commission of the crime rather than upon the observation of the defendant at the unconstitutional pretrial confrontation. If the defense establishes that the pretrial identification was unconstitutional, the prosecution must prove by clear and convincing evidence that any subsequent identification has an “independent” source and is not the product of the previous unduly suggestive procedure.

In determining the existence of an independent sources of identification, the trial court should consider: (1) the witness’ opportunity to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation with the defendant; and (5) the length of time between the crime and the confrontation.

At a preliminary hearing, the prosecution has the burden of presenting enough evidence to the judge to establish to the satisfaction of the judge that there is probable cause to believe the defendant committed the crime. Probable cause is established when the evidence is sufficient to induce a person of ordinary prudence and caution conscientiously to entertain a reasonable belief that the defendant may have committed the crime charged. If the court is satisfied that probable cause exists, the court will bind over the case for arraignment. If the court is not persuaded that probable cause exists, the court will dismiss the case.

There is a fairly large body of scientific evidence dealing with the reliability of eyewitness identification. Eyewitness identification is generally viewed by the public as very reliable, but many studies suggest otherwise. Reliability is particularly suspect in cases of cross-racial identification. In the right case, it may be possible to persuade the court to provide an expert in eyewitness identification to assist the defense in presenting identification issues to the jury.

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