UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
UNITED STATES OF AMERICA §
§
v. § xxxxxxxxxxxxxxx
§
xxxxxxxxxxxxxxx §
MOTION TO PROHIBIT WITNESS FROM VIEWING
THE DEFENDANT AT COUNSEL TABLE, OR VIEWING
SUGGESTIVE PHOTOGRAPH ARRAY OF THE DEFENDANT,
AND MOTION FOR LINEUP
AND BRIEF
COMES NOW the defendant, xxxxxxxxxx, through undersigned counsel, and moves the court as follows:
Through pretrial discovery, the defendant has learned that the charges against Mr. xxxxx arise from two incidents that are alleged to have occurred on November 1 and 11, 1986. A Fort Worth Police officer, K.A. Thompson, reported making two separate purchases of a small quantity, approximately 0.5 grams, of cocaine from the same individual on these two occasions. The officer does not appear to have even seen the individual before this time and it does not appear she has seen him since. The name "xxxxxt xxxxx" appears to have come from a prediction by a confidential informant that someone by that name would sell drugs, and the officer's belief that the person who sold her drugs met the description the informant man identified as "xxxxx" by the informant. Thus, any identification in this case would be based on two brief encounters nearly six and one-half years ago. Thus, it is imperative that suggestive identification procedures be avoided.
There is no valid reason for the use of suggestive identification procedures in this case, such as a one-on-one show up, allowing the witness to view the defendant in court or in any setting where he is easily picked out or identified as the citizen accused in this case, or showing the witness or allowing her to view a single photograph of the accused. Such procedures would not further the cause of either truth or justice.
If the witness truly can identify the person who she alleges sold her drugs, then there is no need for any suggestive identification procedures.
Thus the defendant moves that the government be prohibited from allowing the witness in this case to view the defendant, or the defendant's photograph in a suggestive setting. The defendant further moves that the court prohibit the witness from viewing the defendant in any circumstances that suggests he is the person the government accused if having committed this crime, such as pre-trial, or trial settings, where the defendant is clearly identified as such.
In United States v. Archibald, 734 F.2d
938 (2d Cir. 1984), the Court stated that a trial court has a duty to reduce the
suggestiveness of an in-court identification and an obligation to ensure that the in-court
procedure . . . did not simply amount to a "show up." Id., at 941. The Court adopted the ruling in United States v. Brown, 699 F.2d 585 (2d Cir.
1983):`when a defendant is sufficiently aware in advance that identification testimony
will be presented at trial and fears irreparable suggestivity, as was the case here, his
remedy is to move for a line-up order to assure that the identification witness will first
view the suspect with others of like description rather than in the courtroom sitting
alone at the defense table.'
To allow a witness to view the accused alone at counsel table, for purposes of identification, is incredibly suggestive. No line-up would be conducted in such a fashion.Due process and due course of law as guaranteed by the 14th Amendment to the United States Constitution require this motion be granted.
WHEREFORE, defendant requests that the government be prohibited from allowing its witness from viewing the defendant, or photographs of the defendant in any suggestive setting or procedure, the accused not be required to sit at counsel table at trial when Officer Thompson testifies, that a live line-up be conducted, and to prohibit Officer Thompson from viewing the defendant in any circumstance which indicates he is the person the government accuses of having committed this crime, and that some other person of counsel's choosing be allowed to sit at counsel table during trial, without the government witness being informed of this fact.
Respectfully submitted,
IRA R. KIRKENDOLL
Federal Public Defender
Northern District of Texas
BY:
PETER FLEURY
Asst. Federal Public Defender
600 Texas Street, Suite 100
Fort Worth, TX 76102-4612
(817) 334-2753
Texas State Bar No. 07145600
CERTIFICATE OF
CONFERENCE
I hereby certify that I, Peter Fleury, attorney for defendant, did confer with Frederick Schattman, the Assistant United States Attorney assigned to this matter, and he opposes this motion. Mr. Schattman advised that whether or not the witness was allowed to view an unduly suggestive photograph of the defendant or allowed to view the defendant in an unduly suggestive manner was "no business of the defendant's." Mr. Schattman has, however, advised that the witness would not be in court at the defendant's arraignment on Friday, February 26, 1993, thus there is no need for any protective order for the arraignment
PETER FLEURY
CERTIFICATE OF SERVICE
I, Peter Fleury, hereby certify that on this the day of February, 1993, a copy of the foregoing motion was hand delivered to the United States Attorney's Office at 801 Cherry Street, Suite 1700, Fort Worth, Texas 76102-6897.
PETER FLEURY
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
UNITED STATES OF AMERICA §
§
v. §
§
xxxxxxx. xxxxx §
ORDER
Considering the foregoing Motion to Prohibit Witness from Viewing the Defendant at Counsel Table, or Viewing Suggestive Photograph Array of the Defendant, and Motion for Lineup of defendant ELBERT J. xxxxx,
IT IS ORDERED that the defendant's motion be, and is hereby, GRANTED / DENIED.
SIGNED this day of , 1993.
FORT WORTH, TEXAS.
ELDON B. MAHON
UNITED STATES DISTRICT JUDGE
C:\wwwfpd\prohibit.wpd