Eyewitness Identification

Eyewitness identification of a defendant as the perpetrator of a crime is subject to scrutiny by the court, but that does not necessarily implicate constitutional protections. Let’s break it down in simple terms. There are two situations where identification is an issue: where the witness identifies the person on their own, without a police staging of suspects, and then where there is a police staging of suspect. Each situation triggers a different issue.

When the Witness comes forward on his/her own

Let’s set the stage: Jane Doe witnesses a person breaking  into her house, she recognizes that person as her neighbor. She calls the police and tells them to come to her home and when they get there she points them in the direction of her neighbor. Joe Schmoe is arrested based on her identification and goes to trial.

When the witness identifies a suspect on his or her own, the issue is one of credibility. In this situation, the jury gets to decide whether the identification is correct and how much weight to give that eyewitness’s identification. The witness’s testimony is cross examined by the defendant, and, as is described in the confrontation clause blog post, the defendant attempts to put the jury in doubt as to the witness’s credibility.

For example, an attorney might say, “Ms. Doe, isn’t it true that you’ve hated Mr. Schmoe since he accidentally chopped off the top of your prized peony with his lawn mower?” or “Ms. Doe, isn’t it true that you have extraordinarily bad eyesight and you weren’t wearing your glasses?” This cross examination acts as a safeguard; the defendant can show the jury that the eyewitness is not reliable.

In the end though, when the eyewitness identifies the person on their own, without police assistance, the issue is entirely up to the jury as to whether the person got the identification right.         The judge has no right to preview the issue and prevent the testimony, even if the eyewitness is completely blind and deaf.

When the Police Use Identification Procedure

Let’s give a new example: Victor Vitim is robbed at gunpoint. He saw the person’s face, and gives a description to the police, but he does not know the suspect by name. The police arrest Danny Defendant, who vaguely fits Victor’s description. Then they set up a line-up and Victor identifies Danny as the person who robbed him. Danny goes to trial.

When the police are involved in getting the identification of the accused, the protection for the defendant becomes a two-step question: was the identification tainted by police arrangement, and did the jury find the eyewitness credible. When the government is involved in identification, the courts must ensure that the defendant’s due process was protected.

Police arranged identification procedures cannot be suggestive or unnecessary. Suggestive circumstances occur when the defendant is the only person who even comes close to fitting a physical description, for example. Unnecessary circumstances occur when the eyewitness says he or she saw nothing, and yet the police insist on getting identification from the witness, for example. Either situation, alone, would be enough to cast doubt on the due process protections given to the defendant.

However, being suggestive or unnecessary is not enough to violate due process sufficiently to get the identification suppressed. If the identification was shown to be unnecessary or suggestive, the court then looks at the facts around the case, and make a determination of whether the police conduct created a “substantial likelihood of misidentification.” The process must have been (1) suggestive or unnecessary, AND (2) gives a substantial likelihood of misidentification.

Where indication that the witness could make an accurate identification are outweighed by the police’s corrupting effect, then the identification should be suppressed.

If that standard cannot be met, the issue continues to trial where the jury gets to make the same credibility determination as was described above. The attorney for the defendant may question the witness on the police’s conduct

What is a Seizure under the Fourth Amendment?

The Fourth Amendment protects Americans from unreasonable search and seizure. Article I, Section 8 of the Pennsylvania Constitution mimics this protection. We have discussed the basic tenants of what comprises a search, but what is a seizure?

The most basic definition of a seizure is when government meaningfully interferes with an individual’s possessory property rights or liberty. So in order to have a seizure of a person or property, there must be a meaningful interference with a person’s property or with their liberty.

What constitutes a “meaningful” interference is a fact based question. Each case which challenges the interference with property rights will have to look at cases with similar fact patterns and determine whether the court would find that interference meaningful.

For example, an additional barrel of chemicals loaded onto your truck is not a meaningful interference with your property rights. However, a stop of your vehicle without any reasonable suspicion or probable cause of wrongdoing is a meaningful interference. Any restraint on a person’s liberty by a person of authority is a seizure, and sometimes that’s lawful, and sometimes its not.

Just being a seizure isn’t enough to be objectionable in court. The protection extends only to unreasonable seizures. So the question really is: what makes a seizure unreasonable? There is a three part test the United States Supreme Court developed to evaluate reasonableness.

  1. The gravity of the public interest which will be served by the seizure
  2. The degree to which the seizure advances public interest
  3. How greatly the seizure interferes with personal liberties

Again, this is a fact based test. Each case is going to be looked at individually, although both Pennsylvania and the Supreme Court have stated that in order to pass the test, the seizure must begin with a minimum of reasonable suspicion. That is, the officers must have a reasonable suspicion that illegal activity is taking place. This suspicion must be particularized such that it can be spoken by an officer and must be individualized such that the officer can point to one or maybe two people or objects that are suspicious.

This is a general idea of the law defining your right against unreasonable seizure. Talk to your attorney today about the evidence against you, and whether it may have been a product of an unreasonable search or seizure.  Even if you have challenged the evidence at trial for being unreasonably seized, there still may be an opportunity to appeal and get the evidence removed in a new trial.

You deserve every opportunity for a great defense.

What is a “Search” Under the Fourth Amendment?

The broad rules for what a “search”is are determined by whether a person has a privacy interest. Searches can be a physical search of items or a person, and can also be of conversations. Any evidence which could be considered incriminating can be discovered by a search, whether tangible or intangible. When a search is “reasonable” the evidence will be permitted in court. When a search is deemed unreasonable, the evidence will probably be excluded (there are exceptions to this rule).

The appropriateness of a search is determined by the nature of the privacy interest, the scope, conduct, and duration of the search. Therefore, beyond a few generalizations, the “reasonableness” of a search is an inquiry into the facts around the search.

I promised some broad generalizations. So here they are, but take them with a grain of salt. The law is filled with exceptions and that holds true for the rules for a reasonable search.

  1. Generally privacy interests exist:
  • Where a person has an expectation that his words or actions are private. (This includes the home or where conversations being held are otherwise intended to be kept private, such as a phone booth.)
  • Where a person is invited or temporarily residing.
  1. Generally privacy interests do not exist/ are lessened:
  • Where and item is in plain view and the criminality of the item is immediately apparent.
  • In public places holding a conversation which others could reasonably overhear.
  • In registered vehicles on public highways or vehicles capable of moving on public highways (including RV’s).
  • Where a police or peace officer’s safety is in question.
  • At a person’s place of business has a lesser expectation of privacy
  • In a field surrounding a home or in an area around a home which is in plain view from the street.

A search is generally reasonably begun in 2 situations: when there is a warrant for the search, and when there is probable cause and exigent circumstances allowing a peace officer to avoid getting a warrant.

  1. A warrant requires an affidavit of probable cause (a sworn statement that shows why there is probable cause to believe criminal activity or criminal paraphernalia exists) and a precise description of the persons, places, and items to be search and what can be expected to be found. Having a warrant generally means the search will be reasonable.
  2. Alternatively, a search can be reasonable at its inception when the is probable cause and exigent circumstances. Again probable cause refers to the probability that criminal activity is taking/has taken place and/or that criminal paraphernalia will be found on location. This probable cause must be combined with an exigent circumstance. There is a long list of court cited exigent circumstances, including officer safety, a need for immediate response to a situation, community safety, invitation to search, and others. The inquiry of reasonableness of this search is always fact based.

However, even a search that is “lawful at its inception can violate the Fourth Amendment if its execution unreasonably infringes interests protected by the Constitution.” (Illinois v. Caballes, United States Supreme Court) Therefore, even when there is a warrant or probable cause combined with exigent circumstances, if the search goes beyond a reasonable scope, duration or if conduct of the officers involved is unreasonable, then the search may not be reasonable.