Suppressing an Eyewitness Identification

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.silvermanthompson.comillustrates this point.

I recently represented a client charged in an armed carjacking in a Maryland Circuit Court. In that case, a female was assaulted by a black male, about 5’7, 160-80 lbs., wearing a white tank top and blue jeans. He had corn rows in his hair and carried a large black gun. He grabbed her and demanded that she give him her car keys. The assailant ran away without the victim’s car keys after a witness yelled at the attacker.

Police came to the victim’s house and were taking down information about the attacker. About 15 minutes later, police received a report of a second and similar carjacking about 2 miles away. The attackers fled in a car. Police had stopped the car and discovered a person about 5’7 with corn rows and wearing a white tank top sitting in the back seat. The capture of the carjackers was broadcast on police radios and the victim and witness in the first robbery attempt were brought to the scene where they positively identified our client as the person who had attempted the carjacking.

Prior to the suppresion hearing, we had subpoenaed documents from the local detention center showing that the client was wearing kahaki shorts at the time of arrest and had a large visible tatoo on the neck. We also subpoenaed jail guards to confirm that the client was wearing flip flops at the time of arrest as well as a black hat and prescription glasses. We retrieved medical records showing that the client needed glasses constantly and could not clearly see an object on the ground without glasses. Most importantly, we obtained police radio transmission data reflecting the broadcast of the second attempted carjacking within 15 minutes of the first.

At the suppresison hearing, the police officer testified that he told the victim and witness that they “may” see the attacker, but to be 100% sure before making an identification. He elaborated that the victim and witness made separate identifications and each person was absolutely certain that the client was in fact the attacker.

On cross examination, the police officer admitted (reluctantly) that the radio transmission data was accurate and that his radio did broadcast the events of the second carjacking while he was inside the victim’s house,. He added that the victims may have heard his radio. He also admitted to being “elated” at hearing that the suspects in the second attempted carjacking had been caught so quickly and that he mentioned to the victim and witness that “it looks like we might have your guy.”

The victim and witness both testified and admitted that they had heard the radio transmission and that they knew that the person that were going to see had just been arrested in connection with the second attempted carjacking. They admitted that police officer told them that this may be the person who atacked them. They continued in their positive identification of our client and stressed that nothing that the police officer did influenced them in any way.

We succesfully convinced the Judge to suppress the evidence. The argument was based on the fact that the identification was, under the totality of the circumstances, unreliable. Because of this unreliability, we convinced the Judge that the police procedures had to have been improper. The Judge agreed, noting that the stark differences in the color of the pants, coupled with the evidence about the tatoo and the eyeglasses was enough to let the court infer that the police procedures were impermissibly suggestive.

In this case, the primary way we could show that the police procedures were improper was to show that the identification was, in the end, unreliable. Attacking the reliability of an identification is often the only way for a defense attorney to convince a Judge that the police procedures were inappropriate. After all, if an identification is made under completely proper circumstances, it should not be palpably unreliable. In this case, our criminal defense attorneys out-worked and out-prepared the prosecutors. Through very thorough and skilled work both inside and outside the courtroom, we were able to have all charges dropped against our client. Our work prevented an innocent person from going to jail.

If you have any questions about this type of evidence or about criminal trial defense work, please contact me at STSW. We are skilld criminal defense attorneys familiar with all aspects of criminal investigation and courtroom litigation.

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