LOUISIANA PUBLIC DEFENDER BOARD

 

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IN THE DISTRICT COURT FOR THE PARISH OF PEINE DE MORT
STATE OF LOUISIANA
No. _______

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STATE OF LOUISIANA, Plaintiff
v.
JOHN CLIENT, Defendant

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MOTION TO SUPPRESS IDENTIFICATION EVIDENCE

COMES NOW Mr. CLIENT, by counsel, and respectfully moves this Court pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Article 1, Sections 2, 3, 5, 13, 14, 16 & 17 of the Louisiana Constitution, to suppress the identification evidence against him as being unconstitutionally unreliable. As grounds for his motion Mr. CLIENT states:
1. [Note to counsel: Describe circumstances of crime emphasizing factors such as darkness, lack of opportunity of witnesses to observe the perpetrator, fact that perpetrator was unknown to witnesses, emotional state of witnesses, and other facts relevant to identification.] Since the initial identification was so unreliable, any subsequent identification is inherently untrustworthy, rendering ultimate misidentification likely.
2. [Note to counsel: Describe identification procedures used--i.e., showup, photographic array, or lineup--and make allegations regarding suggestivity. For example, because of the differences in the picture of the defendant and the other persons pictured, the defendant's photograph was emphasized; at the lineup the defendant stood out because the other persons included in the lineup had characteristics substantially different from the defendant; etc.]
3. These identification procedures were so unreliable as to give rise to a very substantial likelihood of irreparable misidentification. Moreover, any in-court identification of the defendant at trial would be based upon the earlier illegal identification or the suggestive nature of the courtroom confrontation and not upon witness' brief opportunity to view the perpetrator of the offense. Such an in-court identification would be unreliable.
4. The circumstances under which the witness first viewed the perpetrator of the crime were extremely poor and any subsequent identification based on that initial viewing would be unreliable, rendering misidentification likely.
5. It is of course well established that there is a "great potential" for misidentification when a witness identifies a stranger based upon a single, brief observation in a stressful situation. United States v. Russell, 532 F.2d 1063, 1066 (6th Cir. 1976). The "innumerable dangers" inherent in such identifications which have led to a "high incidence of miscarriage of justice" were described by the United States Supreme Court in United States v. Wade, 388 U.S. 218, 228-229, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1976). As the Court observed there, the lack of reliability of such evidence is well documented. Id.
6. It is well settled that the due process clause of the Fourteenth Amendment protects an accused against the admission of unreliable identification evidence. Manson v. Braithwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). Such evidence must be excluded where--as here--the totality of the circumstances indicate that the entire identification process was unreliable, and thus resulted in a substantial likelihood of misidentification. Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972); Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968).
7. Because the pretrial identification was obtained by the law enforcement authorities in violation of the defendant's constitutional rights, the prosecution can elicit an in-court identification only by showing by clear and convincing evidence that any in-court identification would rest upon a source independent of the illegal pretrial identification procedures. United States v. Wade, 388 U.S. at 239-241; Clemons v. United States, 408 F.2d 1230, 1237 (D.C. Cir. 1968) (en banc), cert. denied, 394 U.S. 964 (1969). The prosecution cannot make the requisite showing in this case.
[Note to counsel: If the identification was obtained at a lineup--corporeal or photographic--without counsel after commencement of adversary criminal proceedings, include the following argument.]

8. The defendant was not represented by counsel at the lineup at which he was identified. Therefore, the identification was obtained in violation of his right to counsel guaranteed by the Sixth Amendment to the United States Constitution. Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967). Because any in-court identification would be based upon the illegal lineup identification and not a source independent of the lineup, an in-court identification would also constitute a constitutional violation. Id.; see also, Wade v. United States, 388 U.S. at 239-241. Moreover, because this is a capital case, the United States Supreme Court has insisted upon "extraordinary measures" to ensure the reliability of the process by which death is imposed. Eddings v. Oklahoma, 455 U.S. 104, 118, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982) (O'Connor, J., concurring). See also Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976); Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978). This requirement of reliability applies both to the guilt-innocence and sentencing proceedings. Beck v. Alabama, 447 U.S. 625, 637-38, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980). Admission of unreliable identification evidence would, therefore, violate the defendant's Eighth Amendment rights.
WHEREFORE, for the foregoing and such other reasons as may appear to the Court, Mr. CLIENT prays that this motion be set down for a pretrial hearing in order to ensure that only reliable evidence is admitted at this capital trial; that any evidence regarding pretrial identification of the defendant be suppressed; and that no in-court identification be permitted by any witness.
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