Eyewitnesa Identlfication in Military Law

• Author: Colonel Francis A Gilhgan and Major Alan K Hahn
• Pages: 01

1. INTRODUCTION

   The special dangers involved in eyewitness idennficatmn have led to the development of B umque body of law. This article discusses primarily the umque constitutional and evidentiarv Droblems involved m wewit. ness identification

   From the constitutional standpomt, many law enforcement officials and prosecutors readily see the right to counsel and due process LBBUIS,

   hut overlook the fourth amendment issues. Additional problems mise from interpreting the "codification" of the right to counsel and due proc. e s ~ rules in Military Rule of Evidence (Rule) 321. Finally, the existence of an independent source may allow ~n m.court identification even if a violation of the right to counsel, due process, or the fourth amendment excludes evidence of the pretrial identification

   From an evidentiary view, Rules 321 and 801idKl)iC) raise questions concerning when prior statements of identification are admitted for truth and when they are admitted only to bolster the identification wit. ness' credibtlity Other problems exist concerning the admissibility of expert testimony on the unreliability of eyewitness identification and the propriety of such rneasure~ as m.mwt hneups and special cautionary ,nstructmns.

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   11. SIXTH AMENDMENT-ACCRUAL OF THE RIGHT TO COUNSEL

   Rule 321 divides the question of right to counsel between "military hne~ps''~and "nonmilitary lineups 112 This distinction was made becausethe military does not have B preliminary hearing, mformatmn. or indictment and so cannot easily assimilate civilian law The drafters sought by the distinetron between the two types of hneups to comport with the sixth amendment standard established by the Supreme Court

   1. RIGHT TOCOUNSELATNONMILITARYLINEUP The right to counsel at a nonmilitary lineup for the purposes of Identi. fication accrues at the same time as "shall be determined by the prinm. ples of law generally recognized in the trial of cnminal cases in the United States district court8 Involving similar lmeups."' The keys to these principles are the Supreme Court decisions of L'nited States c. WadehandGilbert L. California

      In Wade the Court ruled prospectively' that B post-indictmente lineup was a critical stage of the prosecution which required the presence of counsel. In Wade and Gilbert, a witness had previously identified the de. fendant at a lineup conducted after the mdxtment and after appamt. ment of counsel To enforce the right to counsel, the Court provided that failure to provide counsel resulted in per se exclusions of the pretrial idenhfication. Subsequent >dentifieatmns, including in-court idennhcations, were also excluded unless the prosecution showed by clear and

      19851 EYEWITNESS IDENTIFICATIOK

      convincing evidence that the ~ ~ C O U R

      identification had B basis mde. pendent of the pretnal identificatian.lY

      In Wade the Court found a post-indictment lineup to be a critical etage because: (1) eyewitness identification 1s recawzed as bemg inherently untrustworthy;" (2) there i8 the ever present danger of suggestive influ. ences in the presentment of an accused for identification;'s (3) the pres-ence of counsel may deter the use of suggestive hneup and, (4) it is neariy impossible for counsel to reconstruct what happened at a

      lineup conducted without counsel, thereby substantially curtailing the accused's ability to cross.examine and attack the credibility of the in-court identification >(

      The impact of Wade waa severely limited by the Supreme Court's deci-sion in Kirby u Illmos;' where the Court decided that individuals are not entitled to a lawyer at a lineup until the "initmtian of adversary judi. cia1 criminal proceedings."" This initiation occurs when "the govern. ment had committed itself to prosecute"" and "the adverse poatmns of [the] government and defendant have solidified ''I' At this paint the accused "finds himself faced with the prosecutorla1 farces of organized so-ciety, and immersed in the intricacies of substantive and procedural criminal law.">*

      Kirby's language is unclear as to the exact procedural stage at which the accused 1s entitled to counsel at a confrontation for identification. The opinion states only that the answer depends on when the "initiation of adversary judicial criminal prmeedmgs" takes place. Although Chief Justice Burger's concurring opinion seemed to indicate that this rntia- "On me hand. the Court stared It WBS meamglesi w merely exclude the pmfnsl Identification because the defense may be compelled to bm%out the p~etr~al sdentifnatm any-way fo shah 1t8 unfalme9~. and the defeme would thereby unvrtenf~onauy bohter the in.court identification by dwehg on the pretnal adentlheatlon The defense, therefore, ha8 an opportunity to exclude both the premal and the m-court ldentlfmtron Wade. 388 us

      at240.241 Ontheother hand theCourtslrDfelrrtwasun,vstlfipdtoexclvdeanvlrowtadenbileation when an hndependenf P O Y ~ C D for the ldentlflcatmn exhsted Theper be oxiu. lionof fheprDvialIdenofica~onwas thought to besufilclentradeterpiee~seonductby deprlvwrhe gwemmentof theopportvllty to boiaterthewrtnelbbyevldencaafprsvlous idrntlficafionn Gdbrrl, 388 U 3 st 24142 See injio notes 262-283 and accampanymg

      .....

      tion occurs when the accused has been formally charged,*O the plurality opinion suggests that this right accrues at the time of formal charge, preliminary hearing. Indictment, information, or arraignment." FVhk not naming a specific stage when the accused IS entitled to counsel, the Court did set forth a rule that can be easily followed by law enforcement officials The accused is not entitled to counsel at any confrontation far identification prior to formal charge, preliminary hearing, Indictment, information, or arraignment. provided that these sbges of the prosecution are not purposely delayed to deny the accused the right to counseI."

      Same lower court8 have interpretedKiiby to mean that an arrest without a warrant:% an arrest pursuant to a warrmt,~~or 8" arrest plus confinement triggers the right to counsel ai B lineup" Other courts have ruled, haneier. that an arrest is not a "formal charge" or "inhation of [the] adversary criminal proceedings."zd A third line of cases have de. dared that no nght to coumel exists prior to the informatm or Indictment 27

      This third view was rejected m Moore u. Ilbnois,*ŵhen the Supreme Court held that the defendant was entitled to counsel st a showup con. ducted at the time of the prehrnmary hearing. The Court specifically re-jected the argument that a defendant 1s entitled to counsel only after the indictment.18 The Court also rejected arguments that the right to coun. sel did not accrue at showupP or at judicial proceedings such as a pre. liminary hearing 'I The Court stated that Wade and Kirby apply to all confrontations after the "initiation of adversary ludicid criminal praceedmgs," whether at the stationhouse or m the courtroom

      19861 EYEWITKESS IDENTIFICATION

      The right to counsel rule of Wade, Gilbert, and Kvby has been attacked from both directions. On one hand, an exclusionary rule which disqualifies a knowledgeable witness from testifying is contrary to the generai trend of evidentiary law to reduce witness disqualifications.'* Witness disqualification, 88 opposed to merely excluding objects, is a drastic remedy otherwise disfavored by the Supreme Court even for con. stitutional ~mlations.'~

      Congress unsuccessfully attempted to overrule the case8 by statutorily mandating the admission of eyewitness testimony in federal In addition to Kirby, however, the harsh effects of the rule have been ameliorated in police practices by use of the photo Imeupgb and liberal application of the independent soum test."

      On the other hand, Kirby has been attacked 88 inconsistent with the intent of Wade and ab msufficiently protective of the accused. The Kwby decision was consistent with the holding in Wade but did not rely on its underpinnings."' Justice Brennan's opinion in Wade relied upon the sixth amendment and the accused's right to counsel in cnmmal proceed. ings. but the purpose of the right to counsel announced in Wade and Gib bert was primarily to ensure the fairness of the identification proceed. ings and a fair trial!' It was not limited to the case when the suspect was already indicted. The dangers of pretrial confrontation for the purpose of idenbfication exist whether or not adversarial judicial criminal proceedings have been initiated."

   2. RIGHT TO COUNSEL AT MILITAR Y LINEUPSThe Wade.Gtlbert right to counsel rules were originally adopted in military case law" and then in the 1969 Manual for Courts-Martial." The onginal military rule predated the Kirby "mitiation of adversary

      "Sea goneidly McCormlcks Handbmk of the Law of Eiidenee 5 71 (E Clealy 3d ad

      "Cmted StlWPv. Ceceahl. 426 US 268(1978)lkstunanyoiwitneisnafercludableas

      frwt of illegal searchl. Mmhwn Y Tucker. 417 L S 433 (1974) (applymg Mimnda retro-actively, the Cavt dechned to exclude fsstrmany af wnnea~es discovered from unlvarned mterrogatlonl

      "18 US C 3 3602 (19761 L e anemfly Wnght. Federal Practlce and Procedure. Crm-lnal2d I 414 1 11982) The stelute expresaly apphei only fo Arhcle Ill courtl and does naf

      judicial criminal proceedings" test and established a nght to counsel at a military lineup when the soldier was an accused'* or suspect." that ia, when the enminal investigation had focused on an mdiwdual

      KtrhJ's "mitiation of adversary iudmal criminal proceedings" test was finally adapted m military law with the promulgation of Rule 321 in 1980.'' Because of the difficulty in transposing the Wade-Kirby rules di. rectly to the militar), the drafters adopted B rule to satisfy their holdings and rationales The military rule IS summarized as follows:

      An (1) accused or suspect 1s entitled to (2) counsel at a (3) lineup far the purpose of identification (4) conducted by per-sonsjuhject to the Uniform Code of Military Justice (5) after the preferral of chargee or the imposition of pretrial...