Document Category: In-Court Identification

This motion relies on social science demonstrating the unreliability of witness attempts to identify people from surveillance videos/photographs and argues that due process and the evidence rules (Rules 602, 701, and 403) require exclusion of a police officer’s attempt to identify the defendant from a surveillance video.

Pages 2-4:  Discuss studies showing that humans are bad at matching people to images in photos/videos

Pages 4 –9:  Discuss studies showing that image quality (resolution, distance from subject, and moving versus still images), camera angle and viewpoint, lighting conditions at the time of the video or image capture, the presence or absence of obstructions to the camera’s view, and the size of the image captured all affect reliability

Pages 9 – 13: Discuss how situational factors including a lack of prior familiarity, cross-racial identification problems, and time delays between a prior exposure and the viewing of a surveillance photo/video all contribute to mistaken non-eyewitness identifications

Pages 15-16 – Discuss how these studies could also be used to (a) limit or prevent the prosecution from asking the judge/jury to compare a surveillance video/photo to the defendant, (b) obtain favorable expert testimony about the problems of non-eyewitness identification; (c) get the court to take judicial notice of these problems; (d) obtain favorable jury instructions about the problems with non-eyewitness identification testimony; (e) cross-examine non-eyewitnesses more effectively.

This expert report collects and describes cutting edge social science describing the problems with eyewitness identifications including: the effects of poor lighting and distance (p. 5); the effects of a quick exposure and the problem of witnesses’ overestimating the length of exposure (p. 5-6); problems with cross-racial identifications (p. 6); problem if witness previously viewed the person in another context (unconscious transference) (p. 7); problem of memory loss over time (p. 7); suggestive instructions & failure to warn that culprit may not be in line up (p. 8); problems with nonblind lineup administration (pp. 8-9); problems with biased lineup composition (bad fillers) (p. 9); what can be learned from how long it takes witness to make ID (p. 10); problems with in court identifications (commitment effect and inherent suggestiveness) (pp. 10-11); problems with witnesses being overconfident about IDs (pp. 11-12)

This brief challenges a police officer’s testimony opining that a shooter pictured in surveillance footage and the defendant were the same height.  The officer based his opinion on his visual observation of surveillance footage and measurements of the height of markings in the store. The Florida appellate court agreed that this was impermissible lay opinion testimony that invaded the province of the jury and required specialized expertise (https://caselaw.findlaw.com/court/fl-district-court-of-appeal/2076011.html).

Pages 17 – 23:  Discuss the science of photogrammetry – the process of discerning the size of objects in a photograph – and explain how estimates of an individual’s height in a photograph or video require expert calculations based on geometry, physics, and photogrammetric triangulation.  As a result, the brief argues that only a qualified expert can opine about the height of an individual in a photo or video, and a police officer’s opinion based on visual observation of the photos/video is unreliable, untethered from science, and inadmissible under both due process and evidentiary rules.

Argument that using in-court IDs as the only identification in case is a violation of the Due Process Clause because they create a substantial risk of misidentification. Social science studies cited throughout, specifically supporting reliability concerns (pgs. 10-12) and policy arguments (pgs. 13-15)

In-court identifications are inherently suggestive because they imply to the witness that the prosecutor has confirmed the witness’ initial identification. This brief argues that such an identification is more suggestive than a show-up and that the witness’ sense of accuracy artificially increases during subsequent identifications.

Because of the inherently suggestive nature of in-court identifications, courts should (1) subject them to the same protections and scrutiny as suggestive pretrial identification procedures (pgs. 4-9 of brief); (2) update existing standards and law to align with social science and other, more protective jurisdictions (pgs. 13-22 of brief); and (3) recognize that in-court identifications may be a violation of due process rights (pgs. 26-36 of brief)