Witness Challenges

Question 1

Crawford v. Washington (2004)

Answer 1

SCOTUS clarified that the right to confront witnesses required the ability to cross-examine a fact witness

a conviction based on tape-recorded statements made by defendant’s wife, and not in court to be confronted not admissible (unless witness is unavailable, was deposed, was not evidentiary/testimonial)

Question 2

Neil v. Biggers (1972)

Answer 2

5 factors to be considered in determining accuracy of eyewitness testimony

(1) the opportunity of the witness to view the criminal at the time of the crime;
(2) the degree of attention of the witness;
(3) the accuracy of the witness’s prior description of the criminal;
(4) the level of certainty demonstrated by the witness at the time of confrontation; and
(5) the length of time between the crime and the confrontation

Later: clarified that it’s not exclusionary, but totality of circumstances

Question 3

State v. Henderson (N.J. 2011)

Answer 3

NJ SC did extensive review of the literature on eyewitness evidence –> Henderson criteria

courts must consider variables (e.g. blind administration, racial bias, weapon focus) and charges must guide jurors on the factors that affect an identification’s reliability in a particular case

Question 4

Perry v. New Hampshire (2012)

Answer 4

2 conditions for pretrial disallowal of eyewitness identification:

1- Whether the police used an unnecessarily suggestive identification procedure;

2 - Whether an identification failing the first step was so tainted as to render it unreliable and thus inadmissible.

SCOTUS affirmed; APA filed amicus brief about fallibility of eyewitness testimony; SCOTUS acknowledged and indicated that jury is trier of fact

Question 5

White v. Illinois (1992)

Answer 5

Defs charged with molesting children have no absolute right to confront their young accusers at trial

statements made outside of court could be presented to a jury

Question 6

State v. Hurd (1980)

Answer 6

6 rules of hypnotically enhanced testimony Hurd rules

Session should be conducted by licensed psychologist/psychiatrist; hypnotist should be independent of prosecution/defense; any prior info provided to hypnotist should be in writing; the facts the subject has should be recorded prior to hypnosis; session should be recorded; only hypnotist and subject should be present at hypnosis meetings

Question 7

People v. Shirley (1982)

Answer 7

“per se inadmissible” rule for hypnotically refreshed testimony (CA) - not allowed

Question 8

Rock v. Arkansas (1987)

Answer 8

unconstitutional to preclude hypnotically refreshed testimony of defendant in criminal trial –> expanded Hurd rules

a psychiatrist/psychologist must be experienced in use of hypnosis and qualify as an expert in court; hypnotist should not be employed by prosecution; any info given to hypnotist by law enforcement must be recorded; hypnotist should obtain detailed outline of facts as subject remembers them; contacts must be recorded; only hypnotist and subject should be present