MARIA E. STRATTON (SBN 090986)

Federal Public Defender

EVAN A. JENNESS (SBN 136822)

Deputy Federal Public Defender

Suite 1503, United States Courthouse

312 North Spring Street

Los Angeles, California 90012-4758

Telephone (213) 894-7336

Facsimile (213) 894-0081

Attorneys for Defendant

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v.

xxxxxxx,

Defendant.

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NO.

MOTION (1) TO SUPPRESS IDENTIFICA- TION EVIDENCE; (2) TO PRECLUDE WITNESS TESTIMONY REGARDING CONFIDENCE WITH RESPECT TO ANY ADMITTED IDENTIFICATION EVIDENCE; AND (3) FOR PRETRIAL DISCOVERY; MEMORANDUM OF POINTS AND AUTHORITIES

Date: October 26, 1998

Time: 11:00 a.m.

Place: Courtroom 780-Roybal

MOTION

xxxxxxxxxxxxx, through counsel, moves this Court, pursuant to Rule 12 of the Federal Rules of Criminal Procedure, the Fifth and Sixth Amendments to the United States Constitution, and other applicable authorities, for: (a) an order suppressing certain identification evidence and testimony; (b) an order precluding testimony regarding witness confidence with respect to any identification evidence that the Court may deem admissible at trial; (c) an order compelling discovery regarding any witness identification evidence, and related Brady materials, that has not already been disclosed; and (d) the opportunity to be heard in limine regarding suppression of any presently undisclosed identification evidence.

By this motion, the defense seeks to suppress the out-of-court identification of Mr. xxxxxxx by the victim letter carrier in this case on the grounds that the procedure used was overly suggestive and prejudicial. Because the taint of the inappropriate photo spread utilized cannot be purged, all in-court identification testimony by the carrier also should be suppressed. At a minimum, in the event the Court permits any such evidence to be offered, all testimony regarding the witness's level of confidence should be excluded. Indeed, testimony regarding witness confidence should be precluded with respect to any and all identification evidence that the Court may permit the prosecution to present at trial.

With respect to further discovery, the defense seeks an order compelling the disclosure of complete identification evidence, including but not limited to, all materials related to: (1) interviews with potential percipient witnesses, and (2) photo spread identifications, and any show-ups, video displays, or other identification procedures conducted or utilized by federal, state, or local authorities in which a witness identified, or failed to identify, Mr. xxxxxxx or any other suspected perpetrator of the offense charged in this case. Beyond the discovery produced to date, the defense presently is unaware of each and every specific witness who may have been asked to identify Mr. xxxxxxx, and the circumstances of all relevant identifications.

The defense further requests that the Court conduct an in limine evidentiary hearing, after full disclosure by the prosecution of all documents, and relevant details, regarding identification procedures used in the investigation of this case.

The motion is based on the accompanying memorandum of points and authorities, the files and records in this case, matters of which the Court may take judicial notice, and such evidence and argument as may be presented at the hearing on this matter.

Respectfully submitted,

MARIA E. STRATTON

Federal Public Defender

DATED: October 9, 1998 By______________________________

EVAN A. JENNESS

Deputy Federal Public Defender

TABLE OF CONTENTS

I. INTRODUCTION AND RELEVANT FACTS 4

II. ANALYSIS 7

A. A PRE-TRIAL HEARING IS THE APPROPRIATE MEANS BY WHICH TO ADJUDICATE THE ADMISSIBILITY OF IDENTIFICATION EVIDENCE 7

B. THE VICTIM CARRIER'S IDENTIFICATION MUST BE

SUPPRESSED 10

C. THE COURT SHOULD PRECLUDE TESTIMONY AND ARGUMENT REGARDING THE DEGREE OF CONFIDENCE OF WITNESSES REGARDING ANY IDENTIFICATION EVIDENCE THAT THE COURT DETERMINES IS ADMISSIBLE 13

D. THE COURT SHOULD ORDER THE IMMEDIATE DISCLOSURE OF DISCOVERY MATERIALS REGARDING IDENTIFICATIONS, OR ATTEMPTED IDENTIFICATIONS, THAT MAY NOT ALREADY HAVE BEEN PRODUCED 16

III. CONCLUSION 18

TABLE OF AUTHORITIES

FEDERAL CASES

Clemons v. United States, 408 F.2d 1230 (1968), cert. denied,

394 U.S. 964 (1969) 9

Foster v. California, 394 U.S. 440 (1969) 8,10

Haskins v. United States, 433 F.2d 836 (10th Cir. 1970) 9

Manson v. Brathwaite, 432 U.S. 98 (1977) 10,11

Neil v. Biggers, 409 U.S. 188 (1972) 8,10,11

Simmons v. United States, 390 U.S. 377 (1968) 8,11

United States v. Allison, 414 F.2d 407 (9th Cir.), cert. denied,396 U.S. 968 (1969) 9

United States v. Bagley, 772 F.2d 482 (9th Cir. 1985), cert. denied,475 U.S. 1023 (1986) 7,10

United States v. Broodhead, 413 F.2d 1351 (7th Cir. 1969), cert. denied, 396 U.S. 1017 (1970) 9

United States v. Cranson, 453 F.2d 123 (4th Cir. 1971), cert. denied, 406 U.S. 909 (1972) 9

United States v. Davenport, 753 F.2d 1460 (9th Cir. 1985) 9

United States v. Field, 625 F.2d 862 (9th Cir. 1980) 8,11,13

United States v. Lane, 591 F.2d 961 (D.C. Cir. 1979) 15

United States v. Mitchell, 540 F.2d 1163 (3rd Cir. 1976), cert. denied, 429 U.S. 1099 (1977) 8,9

United States v. Ranciglio, 429 F.2d 228 (8th Cir.), cert. denied, 400 U.S. 959 (1970) 9

Watkins v. Sowders, 449 U.S. 341 (1981) 8

Williams v. Lockhart, 736 F.2d 1264 (8th Cir. 1984) 8

STATE CASES

Commonwealth v. Jones, 423 Mass. 99 (1996) 14

State v. Long, 721 P.2d 483 (Utah 1986) 14

FEDERAL STATUTES

18 U.S.C. § 2114(a) 4

MISCELLANEOUS

Kassin & Barndollar, The Psychology of Eyewitness Testimony: A Comparison of Experts and Prospective Jurors, 22 J. Applied Psychology 1241 (1992) 15

Wells & Murray, Eyewitness Confidence in Wells & Loftus, Eyewitness Testimony: Psychological Perspectives, (1984) 11

Kassin, The General Acceptance of Psychological Research on Eyewitness Testimony: A Survey of Experts, 44 Am. Psychologist 1089 (1989) 14

Shaw & McClure, Repeated Post-Event Questioning Can Lead to Elevated levels of Eyewitness Confidence, 20 Law & Human Behavior 483 (1996) 15

Penrod & Cutler, Eyewitness Confidence and Accuracy: Assessing Their Forensic Relation, 1 Psych. Pub. Pol. Law 817 (1995) 11,14

Wells & Lindsay, Accuracy, Confidence and Juror Perceptions in Eyewitness Identification, 64 J. Applied Psychology 440 (1979) 14

MEMORANDUM OF POINTS AND AUTHORITIES

I.

INTRODUCTION AND RELEVANT FACTS

The Indictment in this case alleges that Lonnie xxxxxxx supposedly robbed a U.S. Post Office letter carrier on September 22, 1997, in violation of Title 18 U.S.C. § 2114(a). In written memoranda dated May 26 and July 16, 1998 (see Exhibits "A" and "B"), the defense requested, inter alia, that the prosecution produce information pertaining to all alleged identifications (or attempted identifications) of Mr. xxxxxxx, and any other suspected perpetrators, regarding the investigation giving rise to the charges in this case. Identity is the critical issue in this case. Thus, the defense cannot prepare effectively to defend Mr. xxxxxxx at trial absent the disclosure of these materials well in advance of trial.

According to discovery materials produced to date, the victim letter carrier described her assailant as, inter alia, 5'8" to 5'9", with a slender build (a description that is inconsistent with Mr. xxxxxxx's), with a "gash" on his forehead. ⁽¹⁾ Mr. xxxxxxx has a relatively large mole on his temple/crown. On May 11, 1998, law enforcement agents apparently showed a photo spread to the victim carrier which contained a picture of Mr. xxxxxxx. The carrier evidently identified Mr. xxxxxxx as the supposed perpetrator of the offense. However, because only one of the individuals depicted in the photo spread -- Mr. xxxxxxx -- had a mole on his forehead, it was a foregone conclusion that the carrier would select Mr. xxxxxxx's picture. ⁽²⁾ Because this photo spread was so patently suggestive, the identification of Mr. xxxxxxx should be suppressed. Moreover, because this suggestive procedure necessarily will taint any in-court identification by the carrier, the prosecution also should be precluded from eliciting any in-court identification testimony from the carrier.

Beyond the discovery produced to date, the defense presently is unaware of all of the witnesses who may have been shown Lonnie xxxxxxx's photograph or other depiction, and the particular circumstances of such identifications or attempted identifications (i.e. where the witness failed to identify any suspect). ⁽³⁾ Particularly relevant (and obviously discoverable under Brady and other well-known authorities) would be any attempted identifications by percipient witnesses. ⁽⁴⁾ Law enforcement agents evidently have interviewed various residents along the postal route where the robbery occurred. However, no discovery materials other than some handwritten notes of interviews conducted on the day of the robbery have been produced regarding these interviews. These notes would seem to suggest that a number of witnesses were in the area at the time of the robbery, were questioned about their observations by law enforcement agents, and may have described the assailant as someone whose description does not match Mr. xxxxxxx's.

For example, certain notes produced seem to suggest that a "James Robinson," "Mr. Black," or "2 workers" at the scene may have seen a "tall thin BM". Assuming that this is a description of the assailant as a "tall thin black male," this description is not entirely consistent with a description of Mr. xxxxxxx. Another example is a notation which suggests that "Mr. Charles" or "Dorothy Charles husband" (address redacted by the prosecution), saw a "man running w/the mail bag." No further information has been provided regarding what may have been observed by this potentially crucial percipient witnesses. The prosecution has not disclosed whether any of these neighborhood residents were shown photospreads or photographs and failed to identify Mr. xxxxxxx, or whether they may have identified (or described) someone else as the perpetrator. The prosecution has refused the defense's specific request to disclose their complete names and addresses so that the defense can conduct an independent investigation of this crucial matter. See Exhibit "B." ⁽⁵⁾

II.

ANALYSIS

A. A PRE-TRIAL HEARING IS THE APPROPRIATE MEANS BY WHICH TO ADJUDICATE THE ADMISSIBILITY OF IDENTIFICATION EVIDENCE

The identification procedures used by governmental agents may be so impermissibly suggestive as to deny the accused due process of law. United States v. Bagley, 772 F.2d 482, 492 (9th Cir. 1985), cert. denied, 475 U.S. 1023 (1986). Where, as here, identity is at issue, an accused may move to suppress any in-court identification testimony that is tainted by out-of-court error by the prosecution. Foster v. California, 394 U.S. 440 (1969); ⁽⁶⁾ see also Simmons v. United States, 390 U.S. 377 (1968) (defense may move to suppress in-court identification that is fruit of out-of-court photographic display that was overly suggestive or unfair); United States v. Field, 625 F.2d 862, 865 (9th Cir. 1980) ("Suggestive pretrial photospread procedures may taint in-court identifications sufficient to deny the accused due process of law."); Williams v. Lockhart, 736 F.2d 1264, 1266 (8th Cir. 1984). The defense may also move to suppress any out-of-court identifications secured as a result of a violation of rights. Neil v. Biggers, 409 U.S. 188 (1972).

It is well recognized that a pretrial hearing to suppress identification evidence is advisable because this procedure helps to bring about a fair trial and promotes the orderly and efficient functioning of trial courts. United States v. Mitchell, 540 F.2d 1163, 1168 (3rd Cir. 1976), cert. denied, 429 U.S. 1099 (1977). In Watkins v. Sowders, 449 U.S. 341, 345-46 (1981), the United States Supreme Court observed that the "prudence of such a hearing has been emphasized by many decisions in the Courts of Appeals, most of which have in various ways admonished trial courts to use that procedure." ⁽⁷⁾

The Ninth Circuit has expressed its strong and clear preference for a pretrial hearing regarding identification evidence. In United States v. Allison, 414 F.2d at 410, the Ninth Circuit stated:

"We agree that where a timely and sufficient motion is made to suppress identification testimony on the ground that it has been tainted by pretrial photographic identification procedures, it must be heard and determined by the court outside the presence of the jury in the same manner as any other motion to suppress evidence ..."

See also United States v. Davenport, 753 F.2d 1460, 1462 (9th Cir. 1985) ("A hearing out of the presence of the jury to determine the admissibility of identification evidence is often prudent and advisable"). A pretrial hearing to determine whether identification evidence must be suppressed here is essential to protect Mr. xxxxxxx's due process and other rights, and will promote efficiency during trial proceedings.

B. THE VICTIM CARRIER'S IDENTIFICATION MUST BE SUPPRESSED

The test to be applied in determining whether an identification procedure is impermissibly suggestive is whether it is "so unnecessarily suggestive and conducive to irreparable mistaken identification as to violate the accused's due process rights." Foster, 394 U.S. at 442 & n.2. "[I]n some cases the procedures leading to an eyewitness identification may be so defective as to make the identification inadmissible as a matter of law." Id.

In deciding whether to exclude identification evidence, courts must examine the totality of the circumstances. Biggers, 409 U.S. at 199; Bagley, 772 F.2d at 492. In Manson v. Brathwaite, 432 U.S. 98 (1977), the Court delineated the standards for a motion to suppress due to suggestive pretrial identifications. The Court held that "reliability is the linchpin" in determining the admissibility of identification testimony, and applied the "totality of the circumstances" standard. Relevant factors are: (1) the opportunity of the witness to view the criminal at the time of the offense; (2) the witness' degree of attention; (3) the accuracy of any prior description by the witness; (4) the level of certainty demonstrated by the confrontation; ⁽⁸⁾ and (5) the time between the occurrence of the crime and the confrontation. Manson, 432 U.S. at 104; Biggers, 409 U.S. at 199-200; Field, 625 F.2d at 867.

The facts here weight heavily in favor of precluding identification testimony by the victim carrier. Simmons, 390 U.S. 377. Analysis of the facts at hand under the Manson criteria amply demonstrates the reasons for this.

First, the victim carrier had only two brief encounters with the assailant: once when he asked her about a stamp and shortly thereafter during the robbery. Nothing about these encounters suggests that she had any particular reason or opportunity to get a good look at the assailant. ⁽⁹⁾

Second, at the time of the robbery, the carrier's attention logically would have been distracted by the knife used in the assault. The fact that she focused particularly on this is evident from her clear description of the weapon (a kitchen or hunting knife) and observation that the assailant had a parking ticket in his hand along with the weapon, as reflected in various agents' reports.

Third, the unreliability of the carrier's identification of Mr. xxxxxxx in the suggestive photospread shown to her is particularly clear because she described the perpetrator as 5'8" - 5'9" with a slender build. Mr. xxxxxxx does not match this description at all. Rather, he is 6'0" tall, and has a muscular build. See also Notice of Intent to Request Judicial Notice and [Proposed] Order, filed herewith.

Fourth, a period of eight months had elapsed between the assault and when the carrier was shown the photospread from which she apparently selected Mr. xxxxxxx's photo. Obviously memories fade over time as a general matter, and this may be particularly so with respect to someone whose profession likely puts her in contact with dozens of people daily.

Another potentially relevant factor -- and one regarding which no discovery whatsoever has been produced -- is the extent to which agents may have directed the carrier towards Mr. xxxxxxx's picture. Indeed, no details of the photo display process have been disclosed. For example, the prosecution has not disclosed if the carrier was told that the suspect would in fact appear among the pictures. Nor has the prosecution disclosed if, after making her selection, she was told that she had picked the "right one." See Field, 625 F.2d at 867 (in assessing suggestiveness of identification procedure, court should consider conduct of government agents tending to focus the witness' attention on the defendant). Certainly any such evidence would weigh further in favor of suppression.

Based on the preceding, the out-of-court identification, and all in-court identification testimony, by the victim carrier should be precluded. If there is any doubt about this, the Court should conduct an evidentiary hearing so that all relevant facts can be established and evaluated.

C. THE COURT SHOULD PRECLUDE TESTIMONY AND ARGUMENT REGARDING THE DEGREE OF CONFIDENCE OF WITNESSES REGARDING ANY IDENTIFICATION EVIDENCE THAT THE COURT DETERMINES IS ADMISSIBLE

If this Court were to permit the victim carrier (or anyone else) to testify regarding the identification of Mr. xxxxxxx as the supposed perpetrator of the charged offense, the Court should preclude any testimony (or argument) regarding the witness's level of confidence. The reasons for this are as follows:

First, an eyewitness identification is a statement of opinion by that witness. The witness' further opinion regarding the accuracy of the witness' own identification is -- in effect -- a comment by the witness regarding his or her own credibility, and therefore is not competent evidence. An eyewitness is in no better position than our jury will be to assess the accuracy of the witness's own opinion. Thus, the admission of an eyewitness's opinion would violate rules confining lay opinion testimony and precluding opinion testimony regarding ultimate issues.

Second, testimony concerning an eyewitness's opinion of the accuracy of his or her identification is only relevant if the eyewitness's subjective certainty is probative of the issue of accuracy. This assumes a psychological premise about eyewitness identification that is not supported by the evidence. Leading authorities indicate that the assertion that "witness confidence = accuracy" is simply wrong. See, e.g., Wells & Lindsay, Accuracy, Confidence and Juror Perceptions in Eyewitness Identification, 64 J. Applied Psychology 440 (1979); Kassin, The General Acceptance of Psychological Research on Eyewitness Testimony: A Survey of Experts, 44 Am. Psychologist 1089 (1989) (87 percent of experimental psychologists surveyed agreed that eyewitness confidence is not an indicator of accuracy). Courts have recognized that there is substantial doubt regarding the confidence/accuracy relationship. See Commonwealth v. Jones, 423 Mass. 99, 110 (1996); State v. Long, 721 P.2d 483 (Utah 1986). The argument that a witness's level of confidence indicates accuracy in effect takes judicial notice of a proposition that has been soundly repudiated by the scientific community. See, Penrod & Cutler, Eyewitness Confidence and Accuracy: Assessing Their Forensic Relation, 1 Psych. Pub. Pol. & Law 817 (1995).

Third, there has been no showing that any assertion of confidence by the eyewitness has not been influenced by outside suggestion, confirmation or influence. The burden of showing that evidence which has been subjected to contamination (here commencing with the suggestive photospread) has not been contaminated must fall on the proponent of the evidence (i.e. the prosecution). See, e.g. United States v. Lane, 591 F.2d 961 (D.C. Cir. 1979); Shaw & McClure, Repeated Post-Event Questioning Can Lead to Elevated Levels of Eyewitness Confidence, 20 Law & Human Behavior 483 (1996).

Fourth, the "confidence = accuracy" argument is particularly prejudicial because it reinforces and exploits juror misconceptions about the eyewitness process which are not supported by scientific studies. See, e.g., Kassin & Barndollar, The Psychology of Eyewitness Testimony: A Comparison of Experts and Prospective Jurors, 22 J. Applied Psychology 1241 (1992) (over half prospective jurors believe confidence predicts accuracy). Effectively taking judicial notice of a mistaken confidence/accuracy relationship would violate Mr. xxxxxxx's right to confront the witnesses against him, in violation of his fair trial and other rights.

For the reasons stated in Part II(B) above, all evidence regarding the victim carrier's identification of Mr. xxxxxxx as the supposed perpetrator should be suppressed entirely. However, with respect to any identification testimony that the Court may determine is admissible at trial, the Court should, at a minimum, preclude witnesses testimony (and prosecution argument) regarding the level of witness confidence concerning any identifications.

D. THE COURT SHOULD ORDER THE IMMEDIATE DISCLOSURE OF DISCOVERY MATERIALS REGARDING ALL IDENTIFICATIONS, OR ATTEMPTED IDENTIFICATIONS, THAT MAY NOT ALREADY HAVE BEEN PRODUCED

In order for the defense to evaluate and investigate any other identifications or attempted identifications conducted in this case, complete disclosure must be made by the prosecution with respect to materials regarding all identifications and attempted identifications, and all related Brady materials. ⁽¹⁰⁾ Specifically,

this Court should order that, unless already produced, the prosecution immediately disclose the following:

1. Photographic duplicates of all actual photographs, photospreads, and/or video surveillance (a) pertaining to the investigation of this case; and/or (b) utilized to identify (or attempt to identify) (1) Lonnie xxxxxxx, or (2) any other suspected perpetrators of the charged offense including, without limitation, "Stony G," and Paul Eugene Brown;

2. All statements (whether written or oral), including notations or mark-ups on photospreads, made by witnesses regarding identifications or attempted identifications;

3. All reports, memoranda, documents, handwritten notes, or other materials that refer or relate to identifications or attempted identifications;

4. The identity and addresses ⁽¹¹⁾ of all persons who: (a) were present while any identification procedure was conducted; (b) have made or failed to make any identification; and/or (c) possess material information regarding a description of the assailant (or any potential assailant); and

5. Unredacted copies of documents produced which conceal the addresses of potential defense witnesses, including evident percipient witnesses who may have observed the actual assailant. See Part I & note 11, supra.

Following full discovery of all such information, the defense will be able to conduct a complete investigation of the matters disclosed, and evaluate and prepare any appropriate further suppression motions.

III.

CONCLUSION

Based on the foregoing, and as set forth in the Suppression Motion, the victim carrier's identification of Mr. xxxxxxx as the alleged perpetrator of the robbery should be suppressed. Any outstanding evidentiary issues should be resolved during a pretrial evidentiary hearing. With respect to any identification evidence admitted, at a minimum, the Court should preclude testimony regarding witness confidence. Further, the immediate production of the requested discovery items should be ordered. Thereafter, the defense will seek an in limine adjudication of any further appropriate suppression motions.

Respectfully submitted,

MARIA E. STRATTON

Federal Public Defender

DATED: October 9, 1998 By______________________________

EVAN A. JENNESS

Deputy Federal Public Defender

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