Motions to Suppress Identification Testimony

• Author: Anthony G. Amsterdam/Martin Guggenheim/Randy A. Hertz
• Profession: University Professor and Professor of Law at New York University/Fiorello LaGuardia Professor of Clinical Law at New York University School of Law/Professor of Clinical Law at NYU School of Law
• Pages: 621-630

621

CHAPTER 25

MOTIONS TO SUPPRESS

IDENTIFICATION

TESTIMONY

§ 25.01 Introduction and Overview

In the vast majority of delinquency cases, the prosecution proves the respondent’s iden-

tity as the perpetrator through an in-court identification of the respondent: The com-

plainant or an eyewitness testifies that the youth seated next to defense counsel was

the perpetrator. (The exceptions are cases in which the perpetrator’s identity is proved

through scientific evidence (such as fingerprints or serology evidence), circumstantial

evidence (such as the respondent’s possession of the fruits of the crime), or the respon-

dent’s confession.)

Although some cases may involve a respondent who is a longstand ing acquaintance of

the complainant or eyewitnes s, most identifications in deli nquency cases are based upon

the complainant’s or eyewitness’s momentary observation of a stranger. Frequently, that

identification has been shaped (or at least affected) by the witness’s participation in one

or more of the following police identification procedu res:

(a) A “lineup,” in which the witness observes the respondent standing among a

group (usually ranging from seven to ten persons) and is asked to select the

perpetrator.

(b) A “show-up,” in which the witness is shown only the respondent and asked

whether the respondent was the perpetrator.

(c) A “photographic identification procedure,” in which the w itness either is shown

a group of photographs (a “photo array” usually consisting of five to ten “mug

shots” or a “mug-book”—an entire book of mug shots) and asked to select the

perpetrator; or is shown a single photograph and asked whether the person

depicted was the perpetrator.

As the Supreme Court has recognized, a “witness’ recollection of the stranger can

be distorted easily by the circumstances or by later actions of the police,” Manson v.

Brathwaite, 432 U.S. 98, 112 (1977), and “‘[t]he influence of improper suggestion upon