One of the most difficult areas of the law facing criminal trial lawyers is handling eyewitness identifications, both in and out of the courtroom. There is no doubt that eyewitness identifications are often one of the most powerful pieces of evidence against a criminal defendant. They are also extremely unreliable, especially when the identification is the result of a police “show-up” — a procedure where a single criminal suspect is paraded before a witness who is then asked to make an identification. More often than not, the witness is brought by police to see the single criminal suspect being held by the police and under circumstances suggesting that the police have captured the right man. There is often a palpable pressure on the victim to identify the suspect simply because it will please the police.
Unfortunately, Maryland courts have made it extremely difficult for defendants to suppress bad eyewitness identifications. In 2006, the Maryland Court of Appeals in Jones v. State, 395 Md. 97 (2006) ruled that judges must evaluate eyewitness identifications in two stages. The first is whether the police procedures used in the identification were “impermissibly suggestive.” If it is not, then judges must end the inquiry and cannot consider whether the identification itself was reliable. The burden lies with the defendant to establish a “prima facie” case that the procedures were police procedures were fatally flawed. If the defense can show that the police procedures were inappropriate, then the burden shifts to the prosecutor to show by clear and convincing evidence that the identification was reliable.
The job of convincing a Judge that the police procedures were improper is even more difficult given that police officers will rarely admit to doing anything wrong.
But skilled defense lawyers can often convince judges to look at unreliability of the identification as an indicator that the identification procedures had to have been flawed. A recent case handled by the Maryland criminal defense attorneys at Silverman, Thompson, Slutkin & White (“STSW”) https://www.mdattorney.comillustrates this point.
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