EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, August 16, 2008

Fargo: North Dakota Case Reveals That Few Identifications Are Deemed Unnecessarily Or Impermissibly Suggestive

A case from North Dakota reveals that its courts do not necessarily deem eyewitness identifications inadmissible even when they are made while the defendant is handcuffed and surrounded by uniformed officers.  Fargo resident Elijah Addai is currently standing trial for the fatal stabbing of David Delonais.  Soon after the stabbing, Addai was stopped in a vehicle near the crime scene, whereupon he was handcuffed and surrounded by uniformed officers.  At this time, two women who allegedly witnessed the crime identified him as the murderer. 

The prosecution sought to (a) have these two women identify Addai at trial, and (b) admit evidence of these identifications during Addai's trial.  And indeed, there would be no problem with this testimony/evidence under North Dakota Rule of Evidence 801(d)(1)(iii), which indicates that "[a] statment is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...one of identification of a person made after perceiving the person."

Addai's attorney, however, moved to preclude these identifications, ostensibly because the identifications were unnecessarily or impermissibly suggestive.  District Court Judge Cynthia Rothe-Seeger denied this motion, and a review of North Dakota precedent backs her up.

In State v. Norrid, 611 N.W.2d 866 (N.D. 2000), the Supreme Court of North Dakota affirmed a lower court's decision to admit an eyewitness identification, finding that:

     "Although Norrid claims it is not entirely clear the trial court applied the correct analysis in deciding whether this showup was suggestive, the court's decision states 'it does seem to me that the setting was suggestive in that the defendant was in handcuffs and he was surrounded by police and there was a spotlight shining on him and no other options were presented' to the victim. The court effectively decided this showup was suggestive. However, that decision does not end the inquiry, which then turns to whether the identification was 'unnecessarily or impermissibly' suggestive. The trial court examined the reasons why the identification was conducted in this manner, citing law enforcement concerns about apprehending the right person as quickly as possible so, if there was a perpetrator still at large, Norrid could be released and law enforcement could pursue the perpetrator. Similar reasons have generally sufficed to support a decision an identification was not unnecessarily suggestive."

So, Judge Rothe-Seeger's conclusion is in line with past precedent, but is that precedent correct?  Don't the concerns cited by the North Dakota Supremes apply in all cases?  Don't police officers always want to apprehend the right perpetrator as quickly as possible?  Don't they always want to be able to dismiss false suspects quickly so that they can move on to other suspects?  It seems to me that an identification of a handcuffed and officer-surrounded suspect is either proper or improper (I would claim the latter), and I don't see how the concerns cited by the court change the analysis.



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