Section 6.22 Waiver to Avoid Identification Reinforcement

• Library: Criminal Practice 2012 Supp

C. (§6.22) Waiver to Avoid Identification Reinforcement

In some cases, the identification of the defendant by the victim will be a major issue. It is suggested that in these cases counsel request in advance that the judge allow the defendant to remain seated in the courtroom with other persons during the hearing (i.e., in some other location than sitting at counsel table next to the defendant’s attorney after the case is called in open court—the obvious identifier). Counsel may even want to go so far as to request that the judge allow someone other than the defendant to sit at the counsel table. It is imperative, however, if counsel intends to substitute another individual for the defendant at the counsel table, that counsel notify the prosecutor in advance and obtain the judge’s permission. If the judge refuses to allow the substitution, counsel must comply with that decision. See United States v. Thoreen, 653 F.2d 1332 (9^th Cir. 1981), in which the court upheld an attorney’s conviction for criminal contempt for placing someone other than the defendant at the counsel table throughout the trial without previously notifying the prosecutor or obtaining the judge’s permission.

If the court is going to require the defendant to sit at the counsel table for the hearing, it may be wise to discuss with the defendant in advance the possibility of waiving the preliminary hearing so a witness does not get an opportunity to identify the defendant with the case (possibly for the first time) or to strengthen a previous dubious identification. Counsel should remember that the state may not call all available witnesses at a preliminary hearing. Identifications, or reinforcement of identifications, good or bad, do not have to be made from the witness stand; a witness who gets to see the accused sitting next to counsel, in the dock with prisoners, in the hallway, in the conference room, or...