Saturday, May 13, 2006

Criminal Defense: The Show-Up Identification

Most people are familiar with the "line-up" process used by police, where a witness is brought in to identify the suspect. Six people who generally fit the description are lined up. One is the suspect. The witness is not told which one. The witness views all six, and attempts to identify which one is the person he/she observed at the crime scene. That's what you see on TV.

There's another process. I was completely unaware of this until my current case. So it's probably new to most of you.

It's called the show-up identification. If a suspect is caught near the crime scene, the witness is brought from the crime scene to the scene of the arrest.

There's a lot of cases on this. They always start off talking about how this method is disfavored because it is so much more unreliable than the line-up. And then almost all of the cases say "but in this case it's okay because ...." There's so many excuses that, in lawyer's parlance, the exceptions have eaten the rule.

I'd be rolling on the ground laughing if my client wasn't facing a potential life sentence.

One reasonable thing about it is the supposed purpose - in case the police have the wrong guy, the show-up identification allows that person to be released quickly, and allows the officers to continue searching for the real perpetrator. Conversely, a positive ID allows the police to call off their search.

All of which would be fine and dandy if that was the real purpose of the show-up identification. Since the real purpose is to avoid having to do a line-up, and to get a positive ID on the suspect regardless of actual guilt (the show-up is so suggestive that the witness will almost always say "that's the guy"), I think the process is total bunk.

And since many criminal court judges seem to bend over backward to let the police and prosecution do whatever they want (I'm a little biased here), they get away with it.

Why is the show-up suggestive?

In a line-up the witness is asked if they can identify the perp from a group of six similar looking people.

In a show-up, the witness is shown the suspect, generally in cuffs and surrounded by police, and asked "That's him, isn't it?"

Anyway, there are a lot of cases on this. A recent case with a defendant named "Brisco" went on appeal all the way to NY's Court of Appeals, which affirmed. Then Mr. Brisco filed for habeas in federal court, and was let out by the federal judge. The federal judge analyzed and discussed the process in extremely thorough detail, to a far greater extent than the appellate courts did. The case is Brisco v. Phillips, 376 F.Supp.2d 306 (EDNY 2005). Every criminal defense lawyer should read it. It would be nice if judges, police and prosecutors read it too, especially if they care about protecting constitutional rights.

Constitution Schmonstitution. :-)
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