Section 10.2 Admissibility of Witness’s Identification Testimony

• Library: Criminal Practice 2012 Supp

A. (§10.2) Admissibility of Witness’s Identification Testimony

The crucial test for determining the admissibility of identification testimony is two-pronged. First, the court must determine whether pretrial identification procedures were suggestive. If so, the court must then evaluate the impact of the suggestive procedure on the reliability of the identification made. State v. Williams, 717 S.W.2d 561, 564 (Mo. App. E.D. 1986), cited with approval inState v. Greer, 758 S.W.2d 126 (Mo. App. E.D. 1988). See State v. Twitty, 793 S.W.2d 561, 563 (Mo. App. E.D. 1990); see also State v. Vinson, 800 S.W.2d 444, 446 (Mo. banc 1990); State v. Timmons, 956 S.W.2d 277, 282 (Mo. App. W.D. 1997); State v. Glover, 951 S.W.2d 359, 362 (Mo. App. W.D. 1997).

Judicially recognized circumstances indicative of improper suggestions include the following:

· All in the lineup but the suspect are known to the identifying witness.

· Other participants in the lineup are grossly dissimilar in appearance from the subject.

· Only the suspect is required to wear distinctive clothing that the culprit wore.

· The witnesses are told by the police that they have caught the culprit, after which the defendant is brought before the witnesses alone or is viewed in jail.

· The suspect is pointed out before or during the lineup.

· The participants in the lineup are asked to try on an article of clothing that fits only the suspect.

· The witness is permitted to see the suspect in custody before the lineup.

· Witnesses are permitted to make wholesale identifications of the suspect in each other’s presence.

See United States v. Wade, 388 U.S. 218, 233–34 (1967).

In Missouri, the courts have held that whether the identification procedure was prejudicially unfair must be determined by a consideration of the totality of the circumstances. It is, however, not suggestiveness but rather reliability of the evidence premised on the “totality of the circumstances” that is the linchpin to determine admissibility of identification evidence. State v. Carter, 572 S.W.2d 430, 435[8] (Mo. banc 1978); State v. Cole, 519 S.W.2d 370, 372[1] (Mo. App. E.D. 1975); State v. McKee, 639 S.W.2d 851 (Mo. App. E.D. 1982); State v. Robinson, 641 S.W.2d 423 (Mo. banc 1982); State v. Story, 646 S.W.2d 68 (Mo. banc 1983); United States v. Briley, 726 F.2d 1301 (8^th Cir. 1984).

In Neil v. Biggers, 409 U.S. 188 (1972), the police used a showup procedure whereby the victim confronted the defendant alone at the police station...