New Second Circuit Decision On Witness Identification After A False Arrest

Our White Plains criminal defense lawyers continue to keep up on the latest developments in the law to better serve our clients. Unfortunately many cases which occur in a few seconds such as robbery or burglary or assault cases involve often shaky witness identifications. Many times, these individuals identify the wrong person, often they are people the police have an agenda to get and who are falsely arrested and then thrown into lineups.

In a recent decision, the Second Circuit found that the New York State Criminal Court’s application of law violated the rights of a defendant charged with burglary and threw the case out. In this case, the victim did not see the perpetrator’s face and was unable to identify or even describe the perpetrator with any detail. Thereafter, the police arrested the defendant without any probable cause and placed him in a lineup where the victim identified him by his voice. The State Court then held that the arrest was unlawful but held that the identification did not have to be suppressed because the victim had an independent basis to identify the defendant. In this particular case, the defendant’s age and height were different than the initial description, nevertheless, the Court permitted the identification. The Second Circuit held that the State Court unreasonably applied Constitutional law and reversed the conviction.

To establish an independent basis the state must prove that the victim possesses knowledge of and the ability to reconstruct the prior criminal occurrence and to identify the defendant from his or her observations of him at the time of the crime. Federal Constitutional law provides that an in-court identification following an illegal lineup procedure is not admissible unless the State establishes by clear and convincing evidence that the in-court identification was based upon observations of the suspect other than the tainted lineup identification. The rationale is simple. Once a suspect has been seen in police custody, a shaky witness is likely to remember the person the police indicated was a suspect and mold their testimony, rather than rely upon an independent recollection of whether that person is actually the perpetrator. This results in unfortunate and frequent incarceration of innocent people.

To determine whether there was an independent basis, the Courts consider factors such as (1) the prior opportunity to observe the alleged criminal act; (2) the existence of any discrepancy between any pre-lineup description and the defendant’s actual description; (3) any identification prior to the lineup of another person; (4) a photographic identification of the defendant prior to the illegal lineup; (5) the failure to identify the defendant on a prior occasion; and (6) the lapse of time between the alleged act and the lineup identification.