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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.

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