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Eyewitness Identification

Prosecutors and defenders will scrutinize any case where police investigators recommend the criminal prosecution of a suspect based on an out-of-court identification provided by a witness to a crime. Sometimes impermissibly suggestive procedures lead to an incriminating out-of-court identification of a suspect. Those errors can taint an in-court identification of a defendant during trial. Sometimes a defendant merely resembles the actual perpetrator. A random eyewitness during a brief encounter between strangers “in the heat of the moment” can incorrectly point the finger of guilt at the wrong person.

The accused has a right to have his or her lawyer present, whenever the police conduct a lineup after a felony charge has been filed and an arrest warrant has been issued. A lawyer can help prevent improper eyewitness suggestion. Pressure to “find the perp” that sometimes arises, especially when the nature of the misconduct enrages a community. A defendant is best protected by Gulfport defense lawyer Rufus Alldredge whose knowledge and experience can prevent the “framing” of someone with similar appearance or a bystander. Our mission in such cases is helping people who were “in the wrong place at the wrong time.”

Two Part Test for Admissibility

The Supreme Court of Mississippi applies a two-part test to determine the admissibility of a pretrial out-of-court identification: “A court must first determine whether the identification process was unduly suggestive. And even if it was, the court has the right to admit the identification if it determines that the out-of-court identification was nevertheless so reliable that no substantial likelihood of misidentification existed.” See Latiker v. State, 918 So.2d 68, 74 (Miss. 2005) (citing Neil v. Biggers, 409 U.S. 188, 198 (1972)).

An effective defender can move to exclude unreliable identifications obtained through impermissibly suggestive out-of-court identification procedures utilized by investigators. Examples include the in person lineup, the photo lineup, and the much criticized “show up,” which is the police “practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, [that] has been widely condemned.” See Stovall v. Denno, 388 U.S. 293, 302 (1967); York v. State, 413 So. 2d 1372, 1381 (Miss. 1982). However, it is well-settled that “[s]uch identification is admissible if, considering the totality of the circumstances surrounding the identification procedure, the identification did not give rise to a very substantial likelihood of misidentification.” See Roche v. State, 913 So. 2d 306, 311 (Miss. 2005); accord Outerbridge v. State, 947 So. 2d 279, 282 (Miss. 2006) (suggestive procedures are upheld if, “under the totality of the circumstances, the identification was reliable”). It takes an experienced and skilled lawyer to persuade a judge to exclude testimony.

Mississippi Courts put a Heavy Burden on the Defendant

“In practice, Mississippi tends to place a heavy burden on defendants who are contesting the propriety of a pretrial identification procedure.” Jones v. State, 993 So. 2d 386, 393 (Miss. Ct. App. 2008) (Court concluded that photo lineup was not impermissibly suggestive even though the accused was only person wearing a coat, which was included in an eyewitness’ description of the armed robber); see also Corrothers v. State, 148 So. 3d 278, 299 (Miss. 2014) (Court found that photo lineup was not impermissibly suggestive even though accused was the only person wearing a white t-shirt, matching the previous descriptions of the shooter, and his photo was brighter than the other 5 photos); Stewart v. State, 131 So. 3d 569, 574 (Miss. 2014) (Court concluded that photo lineup was not impermissibly suggestive even though the defendant was the only person in the lineup with facial tattoos); Butler v. State, 102 So. 3d 260, 264-266 (Miss. 2012) (Court concluded that pretrial identification was reliable even though photo lineup was impermissibly suggestive because each of the photos had a height ruler beside the person pictured, and defendant was the only suspect who was within six inches of the previously given height description); White v. State, 507 So. 2d 98, 99-101 (Miss. 1987) (Court upheld identification even though defendant was only person in the lineup with plaited hair and forehead tattoo, matching description given by witness); and Foster v. State, 493 So. 2d 1304, 1305-06 (Miss. 1986) (Court upheld identifications even though defendant was only person in the lineup wearing a fishing hat, where robber had worn a fishing hat).

A lineup or a photo array is impermissibly suggestive if “the accused, when compared with the others, is conspicuously singled out in some manner from the others, either from appearance or statements by an officer.” Butler, 102 So. 3d at 264. However, Mississippi courts have been lenient with investigators and prosecutors, sometimes allowing suggestive out-of-court identifications in to evidence. An experienced lawyer can challenge a wrongful conviction based upon an unreliable trial identification tainted by a suggestive pretrial identification.

The Five Factor Test

There are five factors to consider in assessing whether or not an identification is reliable: “(1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation.” Latiker, 918 So. 2d at 74 (citing Biggers, 409 U.S. at 199-200). The Supreme Court of Mississippi adopted the five Biggers factors in York v. State, 413 So. 2d 1372 (Miss.1982), and it held that even an unnecessarily suggestive pretrial identification may still be admissible if it is found to be reliable under the Biggers test. Id. at 1382. Therefore, a defense lawyer must be prepared and able to effectively challenge the reliability of an eyewitness’ identification of a defendant as “the perp.”

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If eyewitness identification is a factor in your charge, call Gulfport defense lawyer Rufus.