Most criminal defense attorneys have had this letdown moment: the key prosecution witness takes the stand and the district attorney asks the witness if they can identify the suspect. The witness sees a person in a jail jumpsuit sitting next to the defense attorney and points to him, testifying, “the man in the blue jump suit.” Who else is the witness going to point to? The jail clothing, or simply the fact that the client is sitting next to defense counsel is indeed highly and inherently suggestive.
This is a painful moment if the witness’ ability to identify the client is itself questionable. For example, the witness may be a person who looks out his window at night, allegedly after hearing some commotion, and claims to have seen the client 100 yards away in the dark running away (a nonverbal act of confession, perhaps). The police then pull over the client for an unrelated traffic violation twenty minutes later nearby and the witness’ description matches the client. However, the client was never near the witness’ home. It a case of mistaken identity cured by the in-court identification.
The reader can perhaps imagine similar scenarios where an eye witness’ claim of seeing the client strains credibility, but all credibility issues are resolved in the witness’ favor once the in-court identification takes place.
There is a way to prevent such an inherently suggestive situation: a motion for a lineup, also called by some an “Evans Motion.” In Evans v. Superior Court
(1974) 11 Cal.3d 617, 625, the California Supreme Court held that “due process requires that in an appropriate case that the accused, upon timely request . . . be afforded a pretrial lineup in which witnesses to the alleged criminal conduct can participate.”
This ruling applies when identification is a material, or even a dispositive issue, and mistaken identity is a reasonable likelihood. See Garcia v. Superior Court
(1991) 1 Cal.App.4th 979, 987. In other words, the suspect must deny any role in the alleged crime. This can be a particularly important issue when police make the connection between the witness and their later arrest or the eyewitness has not yet identified the defendant. People v. Harmon
(1989) 215 Cal.3d 552.
In making such a motion, which is a request to the judge, this motion must be made before the preliminary hearing or before trial. In the motion, defense counsel should explain the facts of the case and the role of the witness at issue. Defense counsel must then clearly state that mistaken identity is a material issue and that, without such a lineup, the inherently suggestive position of the client in court would unfairly prejudice defendant since the witness will most likely identify defendant there.
When the client is in custody, the motion should be served on the police department at issue or the sheriff’s department at issue responsible for housing the client so that a representative of the police or sheriff can attend the hearing and let the judge know what they need ordered to arrange for such a lineup to take place, assuming the judge grants the motion.
When such a lineup takes place, by order of the court, defense counsel is entitled to be present. People v. Williams
(1971) 3 Cal.3d 853, 856. The lineup should include at least six persons including defendant. All of the persons should be of the “same general physical appearance and dress as defendant.” The participants in the lineup come from the general inmate population.
The judge usually orders that the jail notify defense counsel of the lineup time and place at least 24 hours in advance. Defense counsel should also be given an opportunity to preview the proposed lineup.
For more information about the confrontation clause of the Sixth Amendment, please click on the following articles:
- Police Detention Is Illegal When Based on Only One’s Resemblance to A Suspect
- Why Hire a Private Attorney? Why Shouldn’t One Use the Public Defender?
- I Was Arrested for a Misdemeanor, But the Officer Never Saw Anything – Is This Illegal?