Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »

×

Showups and Cold Stands

I got done with an appeals brief last week in a murder case where the primary issue was the identification of the defendant.  "Primary issue," in this case, translates to "the only assignment of error I could come up with that didn't make me laugh out loud."  As most criminal lawyers know, there's a constitutional dimension to eyewitness testimony:  it's a due process violation if the police use a procedure that's unnecessarily suggestive and likely to lead to a mistaken identification at trial.  One of those procedures is a "showup," also called a "cold stand," where the cops arrest someone shortly after the crime and take him back to the scene to see if the witnesses can identify him. 

That's what I had in my case.  It's fairly obvious that such a procedure is suggestive, and the courts have usually admitted as much, but that doesn't make much difference in the outcome; the courts almost invariably find that, from the "totality of the circumstances," the witnesses had a sufficiently independent basis for observing the defendant that the showup didn't impair that.  (The 8th District's most recent discussion of that subject is in this case from January.)  In fact, in the hundred-some cases that I looked at, I could find exactly one where the appeals court threw out the ID, involving a 74-year-old woman who claimed to have initially identified the defendant in a lineup.  The reliability of her claim was somewhat undercut by the fact that the police officers testified that no lineup had been conducted.

So, if you've got a case involving this, file a motion to suppress and ask for a hearing, because it'll give you some free discovery.  But unless the witness shows up with a dog and a cane, don't get your hopes up.

Search

Recent Entries

  • July 24, 2017
    What's Up in the 8th
    Some things we knew, some things we didn't
  • July 21, 2017
    Friday Roundup
    Computers and sex offenders, civil forfeiture, and phrases that should be put out to pasture
  • July 20, 2017
    Case Update
    A look at the Ohio Supreme Court's decision in State v. Oles, and did you know that Justice Ginsburg has a .311 batting average with runners in scoring position? Oh, wait...
  • July 18, 2017
    What's Up in the 8th
    Judicial bias, RVO specs, 26(B) stuff, waivers of counsel... And more!
  • July 17, 2017
    No more Anders Briefs?
    I have a case now in the 8th District where I came close to filing an Anders brief the other week. It's an appeal from a plea and sentence. The plea hearing was flawless. The judge imposed consecutive sentences, and...
  • July 13, 2017
    Sex offenders and the First Amendment
    Analysis of the Supreme Court's decision in Packingham v. North Carolina
  • July 12, 2017
    Removing a retained attorney
    What does a judge do if he thinks a retained attorney in a criminal case isn't competent?
  • July 11, 2017
    What's Up in the 8th
    The court does good work on a juvenile bindover case, and the State finally figures out that it should have indicted someone in the first place
  • July 10, 2017
    Case Update
    SCOTUS ends its term; the Ohio Supreme Court issues another opinion, and likely the last one, on the trial tax
  • June 28, 2017
    Plea Bargaining -- The defendant's view
    A look at the Supreme Court's decision last week in Lee v. United States