The following sample motion for a lineup must be properly formatted with header information, line numbers, page numbers, etc. before being used in any court.
TO THE COURT, THE DISTRICT ATTORNEY, THE KERN COUNTY SHERIFF, AND COUNTY COUNSEL: PLEASE TAKE NOTICE that at the date and time indicated above, or as soon thereafter as the matter can be heard in the above entitled court, the Defendant in this matter will move for an order directing the District Attorney of Kern County and the Kern County Sheriff to conduct a physical lineup in which the defendant will be exhibited to a witness in this case, Fred French.
This motion is made on the grounds that evidence of eyewitness identification is a material issue in this case and there exists a reasonable likelihood of mistaken identification, which a lineup would tend to resolve.
The motion will be based on this Notice of Motion, on the attached memorandum of points and authorities and filed herewith and such supplemental memorandum of points and authorities that may be hereafter filed with the court or stated orally at the hearing, on all of the papers and records on file in this action, or may be filed in this action, and on such oral and documentary evidence as may be presented at the time of the motion or related to this matter.
By Joe Whittington,
Attorney for Dave Douglass
DECLARATION IN SUPPORT OF MOTION
I, Joe Whittington, declare as follows:
1. I am the attorney representing the defendant in this action.
2. I have reviewed all of the police reports available to me and have interviewed the Defendant.
3. According to police reports, a man entered Mike’s Market, approached cashier Fred French, and demanded money. Mr. French complied, and the man fled the scene.
4. Defendant was identified in a cross racial “face only” photographic lineup, but Defendant’s physique is substantially different than the described suspect.
5. According to police reports, Mr. French described the man as a black male in his fifties, 6’0” to 6’1”. When discussing the weight of the suspect, Mr. French indicated that the suspect weighed approximately the same as the interviewing officer, which was indicated by the officer to be 210 pounds.
6. However, according to booking reports, Defendant is 6’5” tall, weighs 250 pounds, and is 43 years old – Four or five inches taller, forty pounds heavier, and a decade younger.
7. Defendant’s face may be similar to that of the suspect, but his physique, which has not been shown to witness Fred French, is substantially different.
8. Eyewitness identification is a material issue in this case because there is no substantial evidence to establish the Defendant as the perpetrator of the crime charged, other than eyewitness testimony.
9. There exists a reasonable likelihood of mistaken identification in this case because the eyewitness did not have a sufficient opportunity to observe the suspect, because of the nature of the offense charged and the allegation that a weapon was used. The eyewitness was subjected to pressures at the time of the incident that would affect his ability to identify a suspect.
10. Your declarant believes that a lineup should be conducted while the incident is fresh in the mind of the eyewitness. At the preliminary hearing and at trial the defendant will be seated next to me at counsel table. Before the witness is subjected to a confrontation that is inherently suggestive or will reinforce a mistaken identification in his mind, a properly conducted physical lineup may remedy this danger.
11. Research has shown that there are certain lineup conditions which can increase the fairness and reliability of a lineup, such as exhibiting the subjects of the lineup in a sequential fashion, that is, displayed one at a time, rather than all at the same time. When compared to the traditional simultaneous lineup procedure, empirical studies show that sequential lineups produce a significantly lower rate of mistaken identifications.
12. Studies have shown that a witness looking at a simultaneous lineup is likely, despite any cautions, to want to pick someone. In so doing they are likely to pick the person who most closely resembles the actual perpetrator even if it is not the actual perpetrator.
13. This appears to be the error in the instant case in that the witness’s description of the suspect significantly differs from physique of Defendant.
14. This tendency to select someone from the suspects presented is because the judgment that is made is a relative one. Sequential lineups, by contrast encourage witnesses to make absolute judgments, that is, compare a single face in a lineup to their memory, instead of deciding which of the several faces in the lineup most resembles the memory trace.
15. The defendant is currently in custody, confined at the Kern County Jail. It is submitted that the lineup should be conducted by the Sheriff’s Department at the jail where there is a pool of possible participants which will enhance the possibility for a proper lineup.
16. It is further submitted that a total of ten persons should be in the lineup to prevent the witness from falling into the mindset that the suspect is one of six, as is often shown in popular television shows. This would consist of Defendant and nine others of similar appearance.
I declare that I am informed and believe that the foregoing is true and correct.
By Joe Whittington,
Attorney for Dave Douglass
POINTS, AUTHORITIES, AND ARGUMENT
A DEFENDANT IS ENTITLED TO A PRETRIAL LINEUP IN AN APPROPRIATE CASE
In Evans v. Superior Court (1974) 11 Cal. 3rd 617, 623-625, the Supreme Court established the rule that in certain cases, a defendant may compel law enforcement agents to conduct a lineup.
Because the People are in a position to compel a lineup and utilize what favorable evidence is derived therefrom, fairness requires that the accused be given a reciprocal right to discover and utilize contrary evidence. . . .
We conclude in view of the foregoing that due process requires in an appropriate case that an accused, upon timely request therefor, be afforded a pretrial lineup in which witnesses to the alleged criminal conduct can participate. The right to a lineup arises, however, only when eyewitness identification is shown to be a material issue and there exists a reasonable likelihood of a mistaken identification which a lineup would tend to resolve.
A lineup’s primary benefit arises before the witness encounters the defendant in court. Seeing a suspect among a group of individuals tests the accuracy of a witness’s identification in a way different from an isolated encounter in the courtroom. For this reason, the value of a pretrial lineup may be diminished once a direct confrontation between defendant and accuser has occurred (People v. Mena (2012) 54 Cal. 4th 146, 154).
Because of the differences between Defendant and the description of the suspect, a lineup should eliminate Defendant as a suspect, but the Prosecution has declined Defendant’s request for a lineup. Defendant, therefore, seeks an order from this Court requiring the Prosecution and the Sheriff to conduct a lineup.
COUNSEL HAS THE RIGHT TO BE PRESENT AT THE LINEUP
In U.S. v. Wade (1967) 388 U.S. 218 and Gilbert v. California (1967) 388 U.S. 263, the Supreme Court held that a pretrial lineup was a “critical stage” of the prosecution at which the accused was entitled to the presence of counsel. The court held that if a witness identified a defendant in a lineup conducted in violation of the defendant’s right to counsel, subsequent in-court identifications by that witness were inadmissible unless shown by clear and convincing evidence to have an origin independent of the illegal lineup.
In People v. Williams (1971) 3 Cal. 3rd 853, 856, the Supreme Court described the role of counsel after the court orders a lineup pursuant to a motion by the defense.
The above rules were adopted for two primary reasons: to enable an accused to detect any unfairness in his confrontation with the witness, and to insure that he will be aware of any suggestion by law enforcement officers, intentional or unintentional, at the time the witness makes his identification. It is not the moment of viewing alone, but rather the whole procedure by which a suspect is identified that counsel must be able to effectively reconstruct at trial. If defense counsel is to be able to intelligently cross-examine the witness, he cannot be excluded from the moment of identification any more than he can be excluded from the lineup itself. To hold otherwise would be to reduce counsel’s cross-examination to little more than shooting in the dark, for he would not be fully apprised of what occurred at the, identification interview. For example, the defendant would have no way of knowing whether the witness was improperly led, whether the witness was hesitant or unsure in his identification, and he would not know what language or expressions the witness used. All of these factors could be very significant on cross-examination.
(Williams, supra, internal punctuation and citations omitted)
A SEQUENTIAL DOUBLE BLIND LINEUP WILL ENHANCE THE POSSIBILITY OF A CORRECT IDENTIFICATION
Research has shown that there are certain lineup conditions which can increase the fairness and reliability of a lineup, such as exhibiting the subjects of the lineup in a sequential fashion, that is, displayed one at a time, rather than all at the same time. Further, the officers conducting the lineup should not know which suspect is associated with the matter under investigation (See, e.g. United States v. Brown (7th Cir. 2006) 471 F. 3rd 802, 804–05; State v. Henderson (2011) 208 N.J. 208, 248–49)
When compared to the traditional simultaneous lineup procedure, empirical studies show that sequential double-blind lineups produce a significantly lower rate of mistaken identifications.
Studies have shown that a witness looking at a simultaneous lineup is likely, despite any cautions, to want to pick someone. In so doing they are likely to pick the person who most closely resembles the actual perpetrator even if it is not the actual perpetrator. The judgment that is made is a relative one. Sequential lineups, by contrast encourage witnesses to make absolute judgments, that is, compare a single face in a lineup to their memory, instead of deciding which of the several faces in the lineup most resembles the memory trace. (See R.C.L. Lindsay & Gary L. Wells, Improving Eyewitness Identification from Lineups: Simultaneous Versus Sequential Lineup Presentations (1985) 70 J. Applied Psychology 556; Nancy Steblay, Jennifer Dysart, Solomon Fulero & R.C.L. Lindsay, Eyewitness Accuracy Rates in Sequential and Simultaneous Lineup Presentations: A Meta–Analytic Comparison (2001) 25 L. & Human Behavior 459; Jacqueline McMurtrie, The Role of Social Sciences in Preventing Wrongful Convictions (2005) 42 Am.Crim. L.Rev. 1271; Amy Klobuchar, Nancy K. Mehrkens Steblay & Hilary Lindell Caliguri, Improving Eyewitness Identifications: Hennepin County’s Blind Sequential Lineup Pilot Project (2006) 4 Cardozo Pub.L. Policy & Ethics J. 381)
To further ensure accuracy, the witness should not be told how many persons he will be viewing; rather, he should be instructed:
In a few moments, some individuals will be shown to you one at a time. Each person will be assigned a number and will be referred to only by number. Each will be asked to do certain things, such as turn. The person who committed the crime may or may not be included. While looking at the individuals, keep in mind that the individuals may not appear exactly as they did on the date of the crime. Their hairstyles, facial hair, clothing, etc., may have changed. The investigation will continue whether or not you make any identification. The officer conducting the lineup does not know which individual is a possible suspect. After each individual, the officer will ask you “Is this a person who robbed you?” Take your time answering the question. If you answer “yes”, the officer will then ask you, “Can you describe in your own words how confident you are of the identification?” Even if you identify someone, the officer will continue to show you all of the individuals. Do you understand the procedure and other instructions I have given you?