Chapter 6 - § 6.1 • EYEWITNESS IDENTIFICATION

• Jurisdiction: Colorado

§ 6.1 • EYEWITNESS IDENTIFICATION

§ 6.1.1—Introduction

Identification of the defendant is necessary to establish either civil liability or criminal culpability. See Ortega v. People, 423 P.2d 21 (Colo. 1967). The ability, or lack thereof, of an eyewitness to identify an actor out of court (i.e., in a lineup or by viewing a photograph) or during proceedings in court can be crucial evidence in a case. See People v. Horne, 619 P.2d 53 (Colo. 1980); People v. Bueno, 626 P.2d 1167 (Colo. App. 1981).

An eyewitness identification of the defendant may be established at trial by one of three methods: (1) the eyewitness may make an in-court identification of the defendant at trial, (2) the eyewitness may testify at trial to a prior identification of the defendant made out of court, or (3) a third party who was present at the eyewitness's out-of-court identification of the defendant may testify to that identification. Third-party testimony about an out-of-court identification is not considered hearsay and may be offered to prove identity. CRE 801(d)(1)(C). Third-party testimony that the eyewitness was previously able to identify the defendant may be necessary in situations where the eyewitness forgets, recants, or becomes unavailable prior to trial. People v. Montoya, 773 P.2d 623 (Colo. App. 1989); People v. Madonna, 651 P.2d 378 (Colo. 1982).

The most common methods of eyewitness identification of a defendant are a lineup, photographic lineup, or a show-up where the defendant is viewed by the eyewitness outside of a lineup. If improperly conducted by state actors, pretrial identification procedures may be so unduly suggestive as to violate the Fifth and Fourteenth Amendment rights to due process. Madonna, 651 P.2d at 383. The defendant may challenge the pretrial identification procedure on due process grounds through a motion where he or she bears the burden of showing by a preponderance of the evidence that the "identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Bernal v. People, 44 P.3d 184, 191 (Colo. 2002); Simmons v. United States, 390 U.S. 967 (1968). If the defendant demonstrates the identification was too impermissibly suggestive, the burden shifts to the other side to show that nonetheless the identification was reliable under the totality of the circumstances. Bernal, 44 P.3d 184; Manson v. Brathwaite, 432 U.S. 98 (1977). The court should consider five factors in determining if the identification was reliable under the totality of the circumstances: "(1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the...