Court Considers Batch Of Eyewitness ID Cases

, The Connecticut Law Tribune

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Attorney Lisa J. Steele

Steele penned the brief, which was also endorsed by the Connecticut Criminal Defense Lawyers Association. It urges the state's justices to adopt protocols similar to those recommended by the New Jersey Supreme Court in State v. Henderson.

The 2011 New Jersey decision requires judges to more thoroughly scrutinize the police identification procedures and many other variables affecting eyewitness identification. The court noted that this scrutiny will require judges to provide enhanced jury instructions about factors that increase the risk of misidentification.

These factors include whether a suspect line-up was "double blind," meaning that the officer who administers the line-up is unaware who the primary suspect is and the witness is told that the officer doesn't know; whether the police provided the witness with feedback that would cause the witness to believe he selected the correct suspect; whether the witness was under a high level of stress; how much time the witness had to observe the event; what the lighting conditions were; and whether the witness was under the influence of alcohol or drugs.

Steele argues that if the Connecticut Supreme Court is unwilling to go as far as New Jersey's decision in Henderson, the justices should at least inform trial judges to stop considering the certainty demonstrated by a witness in identifying someone.

For now, Connecticut generally follows the 1977 U.S. Supreme Court decision in Manson v. Brathwaite, which weighs the flaws an identification procedure with other indications that the procedure was reliable. The court then determines whether, under the totality of the circumstances, the identification appears to be reliable. If not, the identification evidence must be excluded.

Streeto, who noted his appreciation that the state Supreme Court is addressing these issues, hopes the justices release three separate rulings rather than one for all three cases so trial lawyers are given more-detailed guidance.

"Anything you do is fact-sensitive," he said, "but when you see it play out in three cases, you start to see trends emerge."•

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