Memorandum of Points and Authorities Research Paper

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This firm's client, Franklin Olsen ("Olsen") was arrested and subsequently charged with burglary of the home of Lindsay Young ("Young"). Young informed the police that she had found Olsen in her home on October 15, 2010, at dusk and observed Olsen for approximately one minute prior to his leaving the property. Young described Olsen as being dark haired, wearing all black clothing and being extremely tall. At that time that Olsen was taken into custody.

Young was asked to make identification of the suspect to the burglary in a police lineup. Olsen was one of six white males in the police lineup and had an attorney present to represent him. All the participants in the lineup other than Olsen were between 5'8: to 5'10" in height and all wore clothing that was light in color however, Olsen was instructed to wear all black clothing. Olsen was additionally the only participants in the lineup asked to repeat the phrase "I've got a gun and I'll use it', which was reported by Young when she reported the burglary. Olsen stated at the lineup that she 'thought' that Olsen 'might' be the burglar.


The lineup identification was so suggestive that it should be suppressed as well as the police lineup lacking such independent reliability that any later in-court identification based on the suggestive lineup must be excluded. In the case of Neil v. Biggers 409 U.S. 188 (1972) the victim was attacked and thrown to the floor of her kitchen and when the victim's child appeared the perpetrator took the victim from the house and raped the victim. The victim made a statement to police providing a description and was shown approximately 30 to 40 photographs. One of the photographs somewhat resembled the perpetrator and as similar individuals could not be located the victim identified Biggers seven months later. The victim testified at the trial with Biggers bringing a habeas corpus action. It was held by the District Court that the claims were not barred and that the identification at the police station was procedurally so suggestive that due process rights of Biggers had been violated.

In the case of Neil v. Biggers 409 U.S. 188 (1972) the decision of the District Court was affirmed in part, reversed in part, and remanded by the U.S. Supreme Court. The U.S. supreme court found that the "question is whether under the totality of the circumstances the identification was reliable even though the confrontation procedure was suggestive."[footnoteRef:1] Stated as the factors to be considered in the evaluation of the possibility of misidentification are the following: [1: Neil v. Biggers, 409 U.S. 188 (1971)]

(1) The witnesses chance to view the criminal;

(2) The accuracy of the description provided prior to the identification of the criminal;

(3) The degree of attention of the witness;

(4) The level certainty displayed by the witness at the confrontation; and (5) The length of time between the crime and the confrontation.[footnoteRef:2] [2: Neil v. Biggers, 409 U.S. 188 (1971)]

The victim is stated by the court to have "faced Biggers directly and intimately. She was no casual observer, but rather the victim of one of the most personally humiliating of all crimes."[footnoteRef:3] The court went on to state in its determination of whether the identification procedure was overly-suggestive that the totality of the circumstances was to be considered. [3: Neil v. Biggers, 409 U.S. 188 (1971)]

The present case involves a burglary in which the victim was only able to observe the criminal for approximately one minute. This is differentiated clearly from the facts in the case of Neil v. Biggers in which the victim was able to view the perpetrator for an extended period of time and at a close and intimate range.

The victim in the burglary case, which this firm represents, was not able to view the alleged perpetrator for more than one minute and was not able to view him at a close or intimate range and additionally, failed to demonstrate a great degree of certainty when making the identification that the alleged perpetrator was in fact the perpetrator whom she had witnessed burglarizing her residence.

In addition to these facts, the police lineup was so suggestive that it should be suppressed. Based on a reading of the case of Neil v. Biggers, it is clear that the rules applied by the court to that case would not apply to the present case, as the present case does not meet the requirements for the identification of the perpetrator to be suppressed.

In the case of Foster v. California 394 U.S. 440 (1969) a robbery took place, the following day one of the robbers by the name of Foster surrendered himself to the police, and the two others involved in the robbery were implicated. The men were placed in a lineup and viewed by the sole witness to the robbery. While Foster was wearing a similar jacket to the one worn by the robber and was taller than the other two men were, the witness was unable to make a positive identification of Foster.

The witness asked to speak with Foster and Foster was then taken into an office and even though Foster was seated at a table with the witness, the witness was still not able to make a positive identification of Foster as being the robber. Approximately ten days later Foster was in another lineup with four different men and the witness made a positive identification of Foster as being the robber. Foster was convicted of robbery after a trial.

The issue in this case concerns whether lineups that are police-conducted might serve to bias a witness in their identification of a suspect and if this may violate the suspect's constitutional rights. The Supreme Court's decision in this case was that lineups such as the one in this case are indeed so suggestive "as to make resulting identifications virtually inevitable" and therefore result in violation of a suspect's constitutional right to due process.

The Supreme Court decision in this case is that this case "presents a compelling example of unfair lineup procedures."[footnoteRef:4] The suspect failed to identify the witness in the first lineup and even after speaking directly with the suspect failed to identify him as the individual involved in the robbery. It was only after he was once again placed in a lineup with a completely different group of men that the witness identified the suspect as the individual involved in the robbery. The Supreme Court held this case to be a perfect example of how police should not conduct a lineup. [4: Foster v. California 394 U.S. 440 (1969)]

In the case of Perry v New Hampshire, 10-8974, on August 15, 2005 at approximately 3:00 A.M., the New Hampshire Police Department was called with a report of an African-American male attempting to break into parked cars in the lot of an apartment building. When the officer responded to the call and questioned the eyewitness, Blandon described the man and motioned toward her kitchen window stating that she had seen a man breaking into a car and that he was standing in the parking lot next to a police officer.

Barion Perry was arrested based on the eyewitness's identification. Prior to trial Brandon moved to suppress on the basis that admission of the identification at trial would violate due process. The decision of the Supreme Court in this case as that the introduction of the eyewitness testimony in this case was not affected by any undue influence of the police as to the identification of the suspect and that no preliminary judicial assessment of the reliability of the eyewitness testimony is required for that information to be admitted into trial evidence.

In another case that involved the identification of an African-American male, and specifically in the case of Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539 (1963), the appeals court found that the photo array lineup was so suggestive that the testimony of the witness should be suppressed based on the fact that the police conduct during the process was such that violated the due process rights of the suspect. In this particular case, the eyewitness observed two men arguing over a television set in a Wal-Mart parking lot for approximately 20 seconds.

The witness told the Deputy who arrived at the scene that he had seen an African-American male between the ages of thirty-five and forty wearing a hat and sunglasses. The deputy informed the eyewitness that he had conducted a search of the DAVID database and observed a photograph that "closely resembled the suspect that Deputy Moffett saw in the surveillance video" and informed the eyewitness that he would compiled a photo pack.

Two days later the eyewitness was shown a photo pack with six different photos. The suspect's photo was in the array. The eyewitness testified that he viewed the photo pack within twenty-four hours of…

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