Section 10.30 Independent Source Rule

• Library: Criminal Practice 2012 Supp

K. (§10.30) Independent Source Rule

When an in-court identification is made upon a recollection independent of pretrial identification procedures, the in-court identification is proper. United States v. Crews, 445 U.S. 463 (1980). In Missouri, an in-court identification based on recollection independent of improper pretrial identification is admissible. State v. Smith, 675 S.W.2d 690 (Mo. App. E.D. 1984). Consideration must be given to the presence of an independent factual basis for the identification and a positive courtroom identification. State v. Parker, 458 S.W.2d 241, 244 (Mo. 1970); State v. White, 549 S.W.2d 914, 917 (Mo. App. E.D. 1977); State v. Rutledge, 524 S.W.2d 449, 458 (Mo. App. E.D. 1975).

In State v. Berry, 609 S.W.2d 948 (Mo. banc 1980), the defendant argued that the lineup was unduly suggestive because the victim selected him as her second choice. The Supreme Court of Missouri rejected the argument, holding that the in-court identification was not rendered inadmissible by such a factual situation. Id. at 953.

In State v. Trimble, 654 S.W.2d 245 (Mo. App. S.D. 1983), repeated sexual assault on children resulted in close attentiveness that can be likened to that of a rape victim. State v. Story, 646 S.W.2d 68 (Mo. banc 1983). The fact that the witness is a law enforcement officer who is trained to observe gives weight to the reliability of the identification. United States v. Henderson, 719 F.2d 934 (8^th Cir. 1983). The fact that a witness was in the car with the suspect for ten minutes with no knowledge of the suspect’s criminal intent indicates reliability because the witness’s perceptions were not clouded by the excitement of the crime.

Reliability factors are important for the court in these independent source tests. Thus, courts have looked at numerous reliability factors and held that:

rape victims are not casual, inattentive observers, but are likely to pay close attention to the assailant, Berry, 609 S.W.2d at 954;

an opportunity to observe the suspect for two or three minutes on a brightly lit street and a detailed description of him were sufficient, State v. Johnson, 605 S.W.2d 151 (Mo. App. E.D. 1980); and

a victim who saw a robber for 30 seconds to 1 minute before being knocked out had an adequate view of the assailant sufficient to form a substantial independent basis for an in-court identification, State v. Brown, 607 S.W.2d 881 (Mo. App. S.D. 1980).

But see United States v. Dailey, 524 F.2d 911 (8^th Cir. 1975), which held...