PRETRIAL IDENTIFICATIONS

PRETRIAL IDENTIFICATIONS

May, 2021
DDA Robert C. Phillips (Ret.)

Introduction:

            The “eyewitness identification” of a criminal suspect by victims and/or witnesses         is almost always an integral and necessary part of any criminal prosecution.  In          the absence of a confession or physical or other evidence connecting a criminal             suspect to a crime, victim and witness identifications often becomes a necessary   prerequisite to a lawful arrest and an eventual guilty verdict.

Pretrial identifications of a criminal suspect by a victim or witness, absent a procedure used that is “impermissibly suggestive” (see below), are admissible in evidence at the trial of the matter as an exception to the hearsay rule.  (E.C. § 1238; Prior Identification)

In those cases where, due to the lack of other evidence connecting a suspect to a crime, a victim and/or witness’s identification of the suspect as the perpetrator is a necessary prerequisite to charging and, eventually, convicting the defendant, the defense can be expected to make a motion to test the strength of the identification evidence by conducting a pretrial live lineup.  Under the right circumstances, this is their right.  The assigned prosecutor will be given the responsibility to ensure that a live lineup is scheduled and properly conducted.

Lineups in General:

“In order to determine whether the admission of identification evidence violates a defendant's right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, [131]  if so, (2) whether the identification itself was ....

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