Suppression of identification
In what is probably one of the Signs of the Apocalypse -- right between the beast out of the earth and the lamb on Mount Sion with the 144,000 -- the 8th District last week reversed a trial court and held that an in-court identification was impermissibly tainted by a suggestive out-of-court ID process, in State v. Williams. I'm not exaggerating the rarity of such an event. I had this as an issue in an appeal I did earlier this year, and researched over 100 cases on it. I found exactly one where the identification was tossed. It involved a 74-year-old woman who testified at the hearing that she'd identified the defendant in a lineup, a claim that was called into question when the police officer testified that no lineup had in fact been conducted.
In Williams, the victim had been robbed of three $100 bills at gunpoint late at night. He testified at trial that the robber had approached him from behind and placed a gun to his head, removed the bills, then fled in in a car. The victim gave the description of the car and the robber to the police, who apprehended the defendant a few hours later. They took him to the victim's house, and the victim stated that he was "100% certain" that this was the man who'd robbed him.
As most criminal lawyers know, showups or "cold stands," where the witness is shown a single person, are universally regarded as suggestive: as the court noted in this case, since the police had asked the victim, "If we get the guy, can we bring him by for you to look at," the victim could have concluded that since the police brought the defendant to his house, they indeed thought he was "the guy."
Whether the identification procedure is suggestive is only one aspect, though; the other is whether the circumstances surrounding the identification show that it's reliable, notwithstanding the suggestiveness. These are the Biggers factors, which are:
(1) the witness's opportunity to view the defendant at the time of the crime; (2) the witness's degree of attention at the time of the crime; (3) the accuracy of the witness's description of the defendant prior to the identification; (4) the witness's level of certainty when identifying the defendant at the confrontation; and (5) the length of time elapsed between the crime and the confrontation.
The court actually did a good job of sifting through these factors, rather than simply going along with the lower court's determination. There's not much sense in going into detail on the court's analysis; these types of cases are very fact-dependent, and the specific facts that the court found here aren't going to be of broad application to others. Suffice it to say that the court seems well-justified in its conclusion that only one of the Biggers factors -- the level of certainty -- was shown here, and that it was counterbalanced by the absence of other factors, especially the slim opportunity the victim had in actually seeing the robber. The discrepancies and lack of corroboration -- no gun was found, and although the officer testified at the suppression hearing that the police recovered three $100 bills from the defendant at the time of his arrest, at trial he testified that no bills were in fact recovered -- also played a large role. Williams does have some value in that context, simply because it gives you a case you can show a trial judge where the court threw out an identification. Those cases are few and far between.
But there are several other important aspects of the decision. It's been my experience that there is an increasing tendency among prosecutors, at least around here, to only call the police officers at the suppression hearing, rather than the witnesses themselves. The theory apparently is that this prevents the defense from getting a free shot at cross-examination of the state's witnesses. That's true, but as Williams points out, it's not without potential cost:
By producing only the arresting officer, and not the victim, at the suppression hearing, the State presented evidence only as to the fact that the policeman heard the victim state that he was "100% certain" of his identification (the fourth factor listed above). In short, if we analyze this suppression issue solely upon the evidence adduced at the suppression hearing, this identification should have been suppressed.
Had the defendant pled no contest at that point, he would have won the suppression issue on appeal. That's not quite as significant as it might appear, though, for a couple of reasons. First, just because the police officer testified to only one factor here doesn't mean that the actual witnesses are always required for the other factors. Since hearsay is admissible at a suppression hearing, even things like the opportunity of the witness to view the perpetrator at the time of the crime, as the witness relayed to the officer, could come in. Furthermore, if the court overrules the motion, unless the defendant wants to plead no contest and take it up on appeal at that point, it doesn't make any difference: as the appellate court noted, since there was a trial, the appellate court had to consider the evidence presented at trial in determining the identification issue.
What's probably more significant about the Williams decision is the clarity of the opinion, and how it defines the trial court's (and the appellate court's) role in suppression issues. There's a tendency to let juries ultimately resolve identification issues; unless the out-of-court identification procedure is truly egregious, the trial court will decide that whether the identification was reliable is a credibility issue to be hashed out by the jury. Similarly, appellate courts tend to view a conviction as dispositive on that issue: if the jury believed the witness, they must necessarily have concluded that the identification was reliable.
As Judge McMonagle points out, though, the issue of the reliability of the identification is initially not one of weight, but of admissibility, and the trial court acts as a "gatekeeper," deciding what should be submitted to the jury. The trial court here didn't do that; as the opinion notes,
The court held at the conclusion of the suppression motion that the factual inconsistencies in the identification were credibility questions for the jury, when, in fact, the law requires the court itself to analyze the inconsistencies to determine whether the questionable show-up likely led to misidentification.
Similarly, the fact that the jury apparently concluded that the identification was proper is of no consequence in the appellate court's determination of the issue:
A jury is not instructed that a show-up is a widely condemned practice. A jury is not instructed to analyze the five factors articulated in Biggers in assessing the reliability of the identification. While a defense attorney may argue to a jury that an identification is unreliable (or a prosecutor may argue that it is reliable), juries do not engage in legal analysis; they deal in factual analysis. Accordingly, the fact that a jury found appellant guilty is not dispositive of the validity of the out-of-court identification.
As I said, the difficulty in using other decisions in these types of cases is that the cases are usually so fact-dependent that the decisions wind up having little precedential value. So forget about the facts in Williams; far more important is the court's treatment of the law. It's by far one of the most significant decisions on out-of-court identifications that's been handed down by any Ohio court in recent years.