Witness Issues Flashcards
Crawford v Washington (2004)
Defendant stabbed man he claimed was trying to rape his wife
Wife’s tape recorded statement contradicted this, but was pre-recorded so could not cross examine the statement
Convicted
Appeal on violation of 6th
Decision: Won appeal
Yes, have right to confront witnesses and cross-examine testimony
Neil v Biggers (1972)
Biggers suspect for rape; victim said saw assailant in dark by light of better and in light of full moon; no ID during photo line ups
Biggers arrested in unrelated case; did show up ID, asked him to say phrases to victim that rapist had said, and she said she had no doubt it was him
Convicted, appealed that show up was too suggestive and thus violated due process
Decision: Nope, this was suggestive but based on totality, not substantial likelihood of misidentification (victim had adequate opportunity to see attacker, not a “casual observer” meaning she paid close attention, her description was “more than ordinarily thorough”
Said to consider:
- Witness certainty
- Quality of view
- Amount of attention paid to culprit
- Agreement between witness description and the suspect
- Amount of time between crime and ID
People v. Shirley (1982)
Shirley accused of rape; victim was intoxicated and he said it was consensual
Victim unable to recall important details of events and underwent hypnosis by DA with “some training” in hypnosis
Trial court allowed her to testify although Shirley objected that hypnosis made her recollection “manufactured evidence” and her testimony was different from prior statements
Defense called expert witness who talked about lack of reliability of hypnosis
Convicted and appealed
Decision: California said no, cannot use hypnosis to refresh testimony because it is not reliable, does not meet Frye standard and so is inadmissible
Perry v. New Hampshire (2012)
Perry convicted for breaking into car; witness said she saw him from apartment window and IDed him at scene (when already in handcuffs) but could not ID in photo line up or describe to police
Second witness IDed from photo lineup
Filed suit that photo of him was “unnecessarily suggestive” because he was in handcuffs
Decision: No not too suggestive
Protections in place based on evidence of questionable reliability but not by prohibiting evidence; so he could persuade jury it was unreliable in this case
No preliminary judicial inquiry about reliability of eyewitness ID is required; only if suggestive and unnecessary; trial court should investigate this on case by case
State v Henderson (2011)
Man killed at apartment; his friend overheard shooting but had been drinking and smoking crack-cocaine
Friend IDed Henderson as accomplish in photo lineup; so investigators encouraged him to make the ID
Henderson charged; court heard hearing about admissibility of ID; said nothing improper and allowed
Convicted
Appealed (and won!)
Decision:
They reviewed over 300 exhibits and over 200 studies and heard testimony from seven experts. They divided the factors into two categories: system variables (e.g., lineup procedures), “which are within the control of the CJ system;” and estimator (e.g., witnesses’ age, lighting at the scene, time between the event and the ID) “over which the legal system has no control.”
Adopted a revised framework for assessing the admissibility of eyewitness identification evidence to reflect the current state of science and to generally heighten courts’ scrutiny of eyewitness identifications.
-Lowered the standard for a pretrial/Wade hearing—burden on def to show some suggestiveness that could lead to a mistaken identification, which must be due to a system variable. If they make this showing, the State “must then offer proof to show that the proffered eyewitness identification is reliable,” considering all relevant system and estimator variables.
-Defendant must also be given a chance to cross-examine eyewitnesses, present witnesses and other relevant evidence.
System variables are those that are within the State’s control. The following must be considered in order to determine whether a defendant has met his initial burden:
Blind administration; pre-identification instructions; lineup construction; feedback and recording confidence; multiple viewings; sequential versus simultaneous lineups; composites; show-ups.
State v Hurd (1980)
Woman stabbed in apartment (lived there with husband and 3 sons)
After was “unwilling or unable” to ID her attacker, but suggested the talk to her former husband (Hurd)
Hurd and her current husband were suspects; prosecution asked her to see psychiatrist and do hypnosis
Underwent hypnosis; psychiatrist and police were in the room
After she expressed doubt about her memories but was encouraged to accept memory and make ID by police; they said she was at risk to get attacked again if she did not make ID and leave her children without a mother
Six days after hypnosis, she said Hurd stabbed her
Defense argued this was inadmissible because of hypnosis not meeting admissibility requirements
Decision: Nope, it can be admissible if it is reliable enough to produce recollections that are as accurate as those of an ordinary witness
Opponent can challenge the reliability of this evidence
Based on the suggestions of Dr. Orne, the following procedural requirements for hypnosis are provided to ensure a minimum level of reliability: (1) A psychiatrist or psychologist experienced in the use of hypnosis must conduct the session, (2) The professional conducting the session must be independent of and not regularly employed by the prosecutor, investigator, or defense, (3) Any information given to the hypnotist by law enforcement personnel or the defense prior to the hypnotic session must be recorded, (4) Before inducing hypnosis the hypnotist should obtain from the subject a detailed description of the facts as the subject remembers them, (5) All contacts between the hypnotist and the subject must be recorded, and (6) Only the hypnotist and the subject should be present during any phase of the hypnotic session. The party seeking to introduce hypnotically refreshed testimony has the burden to prove admissibility by clear and convincing evidence.
Rock v Arkansas (1987)
Rock charged with manslaughter of husband; were fighting and police called
Found husband shot at scene; wife said husband was hitting her and she accidentally shot him
Attorney suggested hypnosis; did it twice
Did not say anything more during sessions but after she said that she remembered her finger on the hammer not trigger and her husband grabbed her arm then gun discharged
Gun was found to be defective
Prosecutor tried to exclude her testimony, court limited her testimony (to matters remembered prior to hypnosis) and she was convicted
She appealed that this limited her ability to present her defense
Decision: this violated her constitutional rights
Blanket ban on hypnotic testimony note allowed, need to consider individual circumstances
failed to perform the constitutional analysis that is necessary when a defendant’s right to testify is at stake. The exclusion of the testimony, without exploring the reliability of the testimony, infringed on Rock’s Constitutional right to testify in her own defense.
White v Illinois (1992)
Charges of sexual assault on 4yo girl, prosecutors tried to call child (now 5yo) as witness
She had emotional difficulty and left twice without testifying
Allowed her babysitter, mother, emergency room nurse & doctor, investigating officer to recount statements she made describing the crime, allowed as hearsay exception for spontaneous declarations and statements during medical examination; jury convicted
Appealed based on hearsay without requisite finding of declarant unavailabity violated confrontation rights; appeal rejected
Finding: Nope, 6th amendment not violated; confrontation clause does not require that prosecution must produce declarant at trial with spontaneous declaration; prosecution does not need to prove witness is not available before admitting statements that would otherwise be admissible
6th amendment clause
