(This is a re-creation. Yesterday’s post disappeared under mysterious circumstances after being published).
Ever since Justice Frankfurter’s outraged account of the Sacco and Vanzetti case (a marvelous model brief on how to call courts and prosecutors crooks and liars without actually saying so), judges have scrambled to declare their disapproval of eyewitness identifications. “Proverbially untrustworthy!” “Scientific studies!” “Wrongful convictions!”
Blah, blah, blah. In the world beyond commencement addresses and Law Day speeches, how often does a judge throw out these proverbially untrustworthy identifications? Especially when made by a cop? About as often as a judge’s car gets towed from in front of the courthouse.
New York allows (sometimes) for a pretrial hearing to determine whether it was the eyewitness who told the police “that’s him!” or the other way around. But for all the chin music about due process, the rigged process guarantees that just about every “identification” will go unsuppressed.
(Scene: Courthouse conference room. Defense counsel and prosecutor sit at opposite sides of the table with their case files).
Prosecutor: Your client is charged with conking a woman on the head and purloining her purse. She picked him out of a lineup six years later. Her identification will be admitted at trial and she’ll tell the jury that she recognizes him in court.
Defense counsel: Not if the judge finds the lineup suggestive.
Prosecutor: The term is unduly suggestive. Duly suggestive lineups are okay.
Defense counsel: I assume she’ll testify at the hearing about how she was able to recognize him after six years.
Prosecutor: In your dreams. I don’t even have to tell you who she is, much less have her testify. My only witness will be the detective who conducted the lineup.
Defense counsel: That’s ridiculous! Of course he’ll say everything was constitutionally tickety-boo. How is the judge supposed to make an independent determination without hearing from the eyewitness?
Prosecutor: According to People v. Chipp, that “would enable defendants to harass identifying witnesses and to transform the hearing into a discovery proceeding.”
Defense counsel: My client is a 70-year old homeless man who doesn’t even have a phone. Don’t you have to make some kind of showing that he’s likely to harass the witness and transform the hearing into a discovery proceeding?
Prosecutor: Nope. There’s an irrebuttable presumption that anyone accused of a crime is going to off the witness.
Defense counsel: (sigh) Okay, let’s talk about the buy-and-bust case. Of course you’ll be calling the undercover cop who allegedly bought drugs from my client.
Prosecutor: Certainly not. According to the Court of Appeals, that would allow suppression hearings to be “used as tools to pressure the prosecution into accepting a plea more favorable to the defendant in order to avoid compromising the undercover’s safety or the integrity of pending investigations.”
Defense counsel: “Pressure the prosecution,” that’s a good one.
Prosecutor: I’ll say! Ha, ha, ha! If you must know, I’ll call someone from the arrest team. They were eating donuts in a nearby car when they got a radio transmission with a description of your client.
Defense counsel: Transmission from who?
Prosecutor: What does it matter? Whoever sent it must have known that your client sold drugs, why else would they have transmitted the description?
Defense counsel: What kind of cockamamie reasoning is that?
Prosecutor: Court of Appeals. People v. Ketcham. Need the cite?
Defense counsel: No, I need a drink. (Hastily) But I’m sober as a judge. You’re required to turn over whatever notes or recordings the donut-eating cops made of the transmitted description.
Prosecutor: Ha, ha, that’s why the cops didn’t make any. But you can be sure the description fit your client or they wouldn’t have arrested him. Anyway, there’s no chance of a mis-i.d. They found pre-recorded buy money on him. Look, here’s the money and here’s the photocopy. You can see the serial numbers match.
Defense counsel: But there’s nothing to show that the photocopy was made before the arrest! They could have just taken his money and photocopied it afterwards.
Prosecutor: What are you, some kind of cop-hating nut? How could you even think of such a thing?
Defense counsel: Instead of “buy-and-bust,” they should call it a “take our word for it” operation.
Prosecutor: So go talk to the Chief Judge. I hear she’s in town giving the keynote speech on eyewitness misidentification for the Wrongful Convictions Conference.