Identification, generally
Category > Identification, generally
Identification of defendant following a hypnotic session was inadmissible.Victim's photographic lineup and in-court identifications of defendant which postdated her hypnotic sessions were inadmissible under People v. Shirley, (1983) 31 Cal.3d 18. Although the crimes were committed prior to, the rule applied retroactively to this case. This was the only direct identification of defendant at trial and necessitated reversal of the attempted murder and mayhem counts.id: 11399
Court erred in permitting murder victims' parents to identify the victims from crime scene photos where defendant had stipulated to their identity.Since defendant stipulated to the identification of the victims, the trial court erred in permitting the murder victims' parents to identify the victims from crime scene photographs. However, there was no reasonable probability of prejudice where the identification testimony of the relatives was factual and brief.id: 11398
There was no due process violation in denying the suppression motion despite the trial court's finding the identification evidence was unreliable for a reason other than the suggestive photographic procedure.Appellant argued the pretrial identification procedures used by law enforcement were unduly suggestive and as a result the victims in court identification of appellant should have been suppressed. The pretrial photographic procedure was suggestive after victim failed to identify appellant from the photo lineup and the prosecutor showed him a single photo of appellant two days before the preliminary hearing. He knew there were two individuals in custody and he knew the other individual was one of the assailants. The procedure could only suggest to the victim that appellant was the other assailant. However, suppression was not required as the trial court found the in-court identification was not the product of the photographic procedure but was based on the victim's seeing appellant in court next to the other known assailant. The trial court found the identification was unreliable for this reason but suppression was not required since the identification issue was one of credibility to be resolved by the jury and the jury was made aware of the circumstances of the identification. There was no due process violation in denying the suppression motion.id: 11405
Trial court must instruct on the need for corroboration of an unconfirmed extrajudicial identification.The trial court must instruct on the need for corroboration of an extrajudicial identification whenever evidence of a witness' extrajudicial identification of a defendant is admitted at trial and that witness fails to confirm the extrajudicial identification at trial. However, the instructional omission was harmless in the instant case as the record contained substantial corroborative evidence.id: 11406
The trial court did not err by instructing the jury that certainty would be considered on the issue of witness identification.Defendant argued the trial court erred by instructing the jurors under CALJIC 2.92, that it could consider the extent to which a witness was certain of the identification. While studies now show there is a weak correlation between certainty and accuracy (and several states have disapproved of using the certainty factor), the instruction was not improper here, where the case involved uncertain as well as certain identifications. id: 24788
The trial court did not err by failing to exclude testimony regarding a witness’s recent photographic identification after the witness refused to attend the live lineup years earlier. Defendant argued the trial court erred by admitting testimony about Ella Ford’s photographic identification made just one month before trial. She had refused to attend the Evan’s lineup conducted years earlier. Contrary to defendant’s claim, the court had discretion to fashion a remedy short of excluding the identification altogether. It properly informed the jurors it could consider her failure to attend the live lineup in assessing the accuracy of her later identification. id: 22264
There was adequate foundation for the identification where the security guard had seen defendant in 20-30 videos in other fitness clubs.Defendant was convicted of burglary involving several fitness clubs. He argued the trial court erred by admitting the identification by a security guard who testified he had seen defendant in 20-30 surveillance videos from other clubs. However, unlike identification after seeing a person in a photo, the guard was able to see defendant’s posture, gait and body movements in the videos. The degree of knowledge of the subject by the identifier is a mater of weight, not admissibility.id: 22408
Evidence supported the robbery conviction even though the eyewitnesses were not 100 percent certain and neither saw the robber’s entire face.Defendant argued there was insufficient evidence to support his robbery conviction even though one witness was only 80 percent sure that defendant was the robber and another had a “little bit” of doubt about his curbside identification. Given the closeness of the witnesses’ descriptions to defendant’s appearance, his proximity to the crime scene, his possession of a “do rag” similar to the mask worn by the robber, and his false alibi, the identifications were not inherently improbable.id: 22514
Asking defendant at trial to roll up his sleeve and show his tattooed arm to the witness was not unnecessarily suggestive. Before trial, the parties agreed they would show the witness a
photographic lineup featuring various tattooed arms without showing anyone’s faces. However, during trial, the prosecutor asked defendant to roll up his sleeve and show his tattooed arm to the witness. Contrary to defendant’s claim, the in-court display was not unnecessarily suggestive.id: 21008
The trial court did not err by precluding the defense identification expert from explaining the concept of "unconscious transference."Defendant argued the court deprived him of his right to present a defense by refusing to allow the defense expert to explain "unconscious transference" where a witness might base an identification of defendant on an earlier sighting, and not on what he or she saw at the crime. However, if relevant, the probative value of the speculative evidence was outweighed by the time necessary to explain the point. Moreover, any error was harmless in light of the witness's other testimony, and the instruction focusing the jury attention on many matters relating to identification.id: 18728
Witness's pretrial identification of defendant was reliable under the circumstances even though she failed to describe his prominent beard when talking to police.After the shooting, the witness made eye contact with the shooter for over 30 seconds. However, her description of the shooter to police did not include the man's prominent beard. The witness became unsure when she saw defendant's photograph in the newspaper. She was also unsure when she saw a photo of defendant with his shirt off. When she later saw a videotape of defendant's arrest, her identification was positive, even though she noted that she had "missed the beard." Her identification of the defendant at a pretrial hearing was also positive. The witness's identification was reliable under the circumstances, and the trial court did not err in denying the motion to suppress the pretrial identification.id: 18680
Court erred in ruling as a matter of law that an identification made 25 days after the crime was not fresh in the witness' memory.The trial court ruled that evidence of the witness' out-of-court photographic identification of defendant was inadmissible hearsay because the identification was made at a time when the crime was not fresh in the witness' memory as required by Evidence Code section 1238. The court erred in finding that, as a matter of law, an identification 25 days after the crime is not fresh in the witness' memory. The freshness of the victim's memory must be resolved by way of a factual hearing.id: 13050
Court did not err in admitting evidence of victim's identification at a police lineup where police interviewed the victim one week later without notifying defense counsel.Victim tentatively identified defendant at a police lineup, marking defendant's number with a question mark and signing the lineup card. Defendant argued the subsequent in-court identification was tainted when, a week after the lineup, a police officer, in the absence of defendant's counsel, interviewed the victim and obtained from her a statement concerning her earlier identification of defendant at the lineup. According to defendant, the interview was not complete until the interview when the victim explained her identification and the question mark to the officer. However, the lineup procedure was complete when victim filled out and signed the identification card indicating her identification of defendant, qualified by a question mark.id: 11397
Identification of defendant where victim was simply waiting in the police station when defendant was brought in through the doors was not impermissibly suggestive.The victim's spontaneous viewing of defendant in a patrol car did not constitute a pretrial identification. Immediately thereafter, victim observed defendant when officers brought him into the police station and identified defendant as the robber. Victim testified at trial that during the robbery he observed defendant's face from a short distance while standing under a streetlight. Since the officers did not indicate having apprehended the suspect, the station house identification was not impermissably suggestive.id: 11400
Identification procedure was not unduly suggestive under the totality of the circumstances where the victim had a long look at defendant in the store and did not positively identify him until trial.Defendant argued the record established the victim was told that the people she would be viewing were her attackers. However, the trial court expressly determined that the police did not encourage the victim to identify the suspects. Moreover, even if the procedure was suggestive it was still reliable under the totality of the circumstances; victim had an opportunity to review defendant as he and another entered her store and at the time were the only customers in the store, and although she could not identify defendant at the preliminary hearing, she positively identified him at trial (and if the procedure was truly suggestive she would have identified him at the preliminary hearing.)id: 11401
Photographic identification procedure necessitated by the exclusion of defendant from the courtroom due to disruptive behavior was not unduly unfair.Defendant was excluded from the courtroom (waiving his right to be present) after repeated disruptive behavior. The prosecutor showed a witness pictures of defendant for identification purposes. Because the assertedly unreliable photographic identification procedure was necessitated by defendant's own disruptive conduct there was no undue unfairness.id: 11402
Prosecutor's telling potential penalty phase witness who was an eyewitness to a prior uncharged crime of the status of the case did not taint the subsequent identification.During the penalty phase the district attorney's office sent a process server to subpoena a witness to a prior uncharged robbery who would identify defendant as the robber. The process server volunteered information that defendant had been convicted of murder and was now in the penalty phase of his trial. Defendant argued the comments of the prosecutor's representative amounted to an impermissibly suggestive pretrial identification procedure. However, her casual explanation of the reasons for the subpoena simply provided information of which the witness would become aware. The information did not taint the subsequent in-court identification.id: 11403
Supreme Court overrules holding that an out-of-court identification is in all cases insufficient by itself to sustain a conviction.The rule stated in <i>People v. Gould</i> (1960) 54 Cal.2d 621, that an out-of-court identification is by itself always insufficient evidence to support a conviction is overruled. Instead, the sufficiency of an out-of-court identification to support a conviction should be judged by the substantial evidence standard of <i>People v. Johnson</i> (1980) 26 Cal.3d 557, 578. Because in this case a reasonable juror could have concluded beyond a reasonable doubt from the evidence presented that defendant had assaulted the victim by personally using a firearm, there was sufficient evidence to support the conviction.id: 11404
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Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245