Crime & Federalism

Empirical evidence nationwide makes clear the danger of false identification in criminal cases. Our courts have been slow to respond. Those accused of crime, even wrongly accused, garner little sympathy.

The Connecticut Supreme Court recently broke ranks with courts refusing realitistically to deal with suggestive identification. In State v. Ledbetter, SC 17307, the Court ordered trial courts henceforth to give juries a new charge on the dangers of suggestive identification. The ruling is one half of a step in the right direction.

Consider the all too common practice among law enforcement officers. A victim is shown a group of individuals and asked whether the perpetrator is present: this procedure can be in the form of a photo array, a lineup or a show up. Many victims assume the perp must be present: why else would law enforcement officers go through the effort of organizing the event? So someone gets picked, whether guilty of not.

Using its inherent supervisory authority over the trial courts, the Connecticut Supreme Court now requires trial judges to give the following instruction when law enforcement officers fail to tell the victim that the perpetrator may not, in fact, be present among those assembled for a view.

"In this case, the state has presented evidence that an eyewitness identified the defendant in connection with the crime charged. That identification was the result of an identification procedure in which the individual conducting the procedure either indicated to the witness that a suspect was present in the procedure or failed to warn the witness that the perpetrator may or may not be in the procedure.

"Psychological studies have shown that indicating to a witness that a suspect is present in an identification procedure or failing to warn the witness that the perpetrator may or may not be in the procedure increases the likelihood that the witness will select one of the individuals in the procedure, even when the perpetrator is not present. Thus, such behavior on the part of the procedure administrator tends to increase the probability of misidentification.

"This information is not intended to direct you to give more or less weight to the eyewitness identification evidence offered by the state. It is your duty to determine whethter that evidence is to be believed. You may, however, take into account the results of the psychological studies. as just explained to you, in making that determination."

I grade the decision a solid "B" for moving in the right direction, a "D" for lucidity and style, and an "F" for crafting a truly effective remedy. Persons subject to custodial interrogation must be advised of the right to counsel if the state wants to use their statement. Failure to advise yields suppression. Why not the same rule for failure to warn a witness a perpetrator may or may not be present at an identification?

Instead we get turgid half-measures and references to studies not in evidence. So much for protecting the rights of the accused and requiring the jury to decide the case based only on the evidence before them. Instructing juries about the results of scientific studies is simply foolish. Read it and Sleep