Suppressing Eyewitness Identification

 

Eyewitness misidentification is far and away the leading cause of wrongful convictions in this country.  The natural question that many ask is, “why do juries get these cases wrong?”  But perhaps we should be asking a slightly different question: Why do juries get these cases at all?  In other words, why are eyewitness identifications that are either inaccurate, unreliable, or the result of suggestive procedures—or all three—getting beyond the suppression stage and coming into evidence at trial? This presentation attempts to address that question by examining the severe incongruence between the governing legal standards, under the Fourth, Fifth, and Sixth Amendments, that courts apply when considering motions to suppress eyewitness identification testimony, standards handed down over thirty years ago, and the plethora of social scientific findings regarding eyewitness memory that have come to light in more recent years.  The presentation suggests several alternative analytical approaches for which defense attorneys should advocate, while offering tips on how to seek exclusion or suppression in specific identification contexts—show-ups, composite sketch IDs, IDs by police officers, IDs through media exposure, surveillance footage IDs, and in-court IDs.

 

Paul Rudof is the Public Defender Co-Counsel at the Committee for Public Counsel Services, assisting public defenders throughout Massachusetts in litigating complex or novel legal issues and trying cases. Previously, he worked as a staff attorney in the CPCS Criminal Defense Training Unit and as a staff attorney in the Essex County office of the CPCS Public Defender Trial Unit. Mr. Rudof has tried felony cases, including first degree murder cases, in Superior and District Courts throughout the Commonwealth and has argued numerous times before the Supreme Judicial Court and Massachusetts Appeals Court. Mr. Rudof has written chapters in several books published by MCLE, including Trying Sex Offense Cases in Massachusetts, Trying Drug Cases in Massachusetts, and the Massachusetts District Court Criminal Defense Manual. He is in the process of co-editing and writing several chapters for a new MCLE book entitled Trying Identification Cases in Massachusetts. Mr. Rudof is also a faculty member at the National Criminal Defense College in Macon, Georgia, where he teaches annually at the NCDC Trial Practice Institute. He has also taught at trial skills programs and lectured at conferences in New York, Wisconsin and Colorado. A 1999 graduate of the University of Utah College of Law, Mr. Rudof spent a year as a law clerk for the Honorable Michael Murphy of the United States Court of Appeals for the Tenth Circuit before joining CPCS. He earned his B.A. from Brown University in 1993.