In-Court Eyewitness Identifications – What Process is “Due” Process?

In any case where identification is at issue, the proverbial drumroll sounds at the crescendo of the witness examination when the prosecution asks “and do you see the person, here in this courtroom, who committed this crime?” And invariably the finger points at the accused.

Who else would it be pointed at? The lawyers are known and obvious, the defendant is often a person of color and/or not in the garb of the courtroom professionals, and the courtroom security people are seated nearby. Although there have been rare instances of witnesses pointing to the court reporter or, in one case, the judge, the easy and recurring choice is the obvious one – as if there were an arrow with neon lights shouting “pick him” pointing at the accused.

The science is clear – an identification in a courtroom, months or years after an encounter, is much less reliable and probative than one in the immediate aftermath of a crime, a point brought home by the 2014 report IDENTIFYING THE CULPRIT: ASSESSING EYEWITNESS IDENTIFICATION, a survey of the current state of eyewitness science and knowledge published by the National Research Council of the National Academy of Sciences. On this subject that report concluded the following:

The accepted practice of in-court eyewitness identifications can influence juries in ways that cross-examination, expert testimony, or jury instructions are unable to counter effectively. Moreover, as research suggests…, the passage of time since the initial identification may mean that a courtroom identification is a less accurate reflection of an eyewitness’ memory. In-court confidence statements may also be less reliable than confidence judgments made at the time of an initial out-of-court identification; as memory fails and/or confidence grows disproportionately. The confidence of an eyewitness may increase by the time of the trial as a result of learning more information about the case, participating in trial preparation, and experiencing the pressures of being placed on the stand….An identification of the kind dealt with in this report typically should not occur for the first time in the courtroom.

Id., at 110. Yet in-court identifications in cases where there was no prior lineup or showup or photo array still occur, and courts have too often found that Due Process protections don’t apply to this inherently suggestive procedure. See, e.g., Byrd v. State, 25 A.3d 761, 767 (Del. 2011). See also State v. King, 156 N.H. 371, 373-76, 934 A.2d 556 (2007); State v. Lewis, 363 S.C. 37, 42-43, 609 S.E.2d 515 (2005). But a new Connecticut decision reflects a sea change on this issue.

In State v. Dickson, decided August 3, 2016, Dickson argued that “first time in-court identifications trigger due process protections because they are inherently suggestive and are the result of state action.” (last visited August 3, 2016). The Connecticut Supreme Court agreed.

The Court made clear what any lawyer (or judge) has experienced:

we are hard-pressed to imagine how there could be a more suggestive identification procedure than placing a witness on the stand in open court, confronting the witness with the person who the state has accused of committing the crime, and then asking the witness if he can identify the person who committed the crime. If this procedure is not suggestive, then no procedure is suggestive.

From this insight the Connecticut Court drew a simple but far-reaching conclusion – such a procedure implicates Due Process concerns and must be regulated to reduce the risk of error. Applying the Constitutional protection was first seen as a means to incentivize police to conduct out-of-court identification procedures rather than wait for trial, when memory is decayed and the circumstances are too suggestive.

And if this does not occur? Unless the witness clearly knows the suspect, or the ability to identify is beyond doubt, either there will be no in-court identification or there must be a mid-trial halt to permit a lineup or photo array to take place.

So, what does this case signify? First, that state courts remain the “laboratories” for innovation, particularly in cases involving eyewitness identification, where the United States Supreme Court has removed itself from the field. Second, this case provides a model for litigation elsewhere; and where such litigation is attempted but fails, it still informs lawyers of what we were all taught in law school and that has not changed – “the vagaries of eyewitness identification are well known.”

[The case is STATE OF CONNECTICUT v. ANDREW DICKSON (SC 19385), and can be found at ]