Monday, August 17, 2009
Ofer Raban (University of Oregon - School of Law) has posted On Suggestive and Necessary Identification Procedures on SSRN. Here is the abstract:
Due Process doctrine allows criminal defendants to challenge the admissibility of suggestive identification procedures and consequent in-court identification. Despite the paramount importance of identification evidence in criminal trials, Supreme Court precedents on the subject have been confusing and confused. The result today is common misapplication of proper Due Process doctrine: lower courts habitually admit evidence of suggestive identification procedures, and allow consequent in-court identifications, if they find such procedures to have been “necessary,” a concept that is often left ill defined. These courts’ analysis, though grounded in the very first Supreme Court case on the subject, has been repudiated by subsequent Supreme Court cases and, in any event, makes little sense. Whether necessary or unnecessary, evidence of suggestive identification procedures, and any consequent in-court identifications, must be excluded from trial unless supported by sufficient indicia of reliability.