EvidenceProf Blog

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

Wednesday, January 27, 2021

Ninth Circuit Upholds Convictions Despite Flawed Facebook Eyewitness Identification

Eyewitness identifications are done best when they are done via a lineup or photo array in which the suspect does not stand out from the fillers. In United States v. Bruce, 2021 WL 98242 (9th Cir. 2021), this was definitely not done, but was it enough to grant the defendant a new trial?

In Bruce, David Bruce was convicted on charges that "arose from Bruce's involvement in a drug smuggling scheme at the United States Penitentiary at Atwater, California, where Bruce worked as a correctional officer." Specifically,

On December 12, 2015, Thomas and Tracy Jones were on their way to visit an inmate at the United States Penitentiary in Atwater, California (Atwater), when guards conducting random car searches stopped them at a checkpoint. As the officers began their search, Jones admitted there were drugs in the car he was driving. The officers found four vacuum-packed bags of marijuana, a package of heroin, and three marijuana cigarettes.

Jones agreed to cooperate after investigators suggested that if he did not do so, he and his wife could face a lengthy incarceration, and he spoke to the investigators at length. Jones told the investigators that he and his wife had developed an online relationship with an inmate named Devonne Randolph over the course of the preceding year, and that they began visiting Randolph at Atwater. After Jones and his wife agreed to receive packages and cash for Randolph, packages containing money and “little medicated strips” began to arrive at their home. Jones also reported receiving transfers of cash from people associated with other Atwater inmates, and he told the officers that Randolph gave him a telephone number to send text messages to someone he referred to as “Officer Johnson” when packages arrived. According to Jones, Randolph said that Officer Johnson would deliver the packages to Randolph in prison. Jones admitted making a delivery to Officer Johnson in September 2015, and another in November. Both deliveries took place in a parking lot near Atwater. Jones recounted entering Officer Johnson's black Jeep Cherokee, handing him the packages, and leaving.

When asked to describe Officer Johnson, Jones said Johnson was “Hispanic looking” with dark curly hair. Jones also described Officer Johnson wearing a Pittsburgh Steelers hat and having a raspy voice, a heavyset build, and dark skin. One of the officers recalled seeing another correctional officer sporting a Steelers hat at an off-duty event. He showed Jones a Facebook photo from the event that included David Bruce and one other person. Bruce was the only one in the photo wearing a Steelers hat. Without hesitation, Jones identified Bruce as Officer Johnson.

After he was convicted, Bruce appealed, claiming that "Jones's identification was unreliable because Jones identified Bruce under circumstances that were impermissibly suggestive." The Ninth Circuit disagreed, concluding inter alia, that

Unlike witnesses who are startled by a crime in progress, Jones ventured out to meet with “Officer Johnson” on two occasions and voluntarily got into his car both times. The two men were in close proximity and the second meeting took place just 15 days before Jones was stopped and questioned at the checkpoint. The Atwater officers testified that Jones identified Bruce from the photo without hesitation, and Jones testified that he was certain of the identification at the time he made it in 2015. Jones explained to the jury that before he was shown the Facebook photo, he accurately described details concerning Officer Johnson's beard, hair color, body type, and clothing. Jones also recalled that Officer Johnson drove a black Jeep Cherokee.



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