Written by attorney Edward D. Dowling IV

Identification Hearing ( Wade Hearing )

The purpose of a Pre Trial Wade Hearing is to determine whether the eye witness’s identification of the defendant as the perpetrator of the crime is correct.

There have been numerous studies and books and articles published that come to the conclusion that eyewitness identifications and the police procedures used can be unduly suggestive of a certain person having committed the crime in question and yet being completely mistaken in the identification. Eye witness testimony has been shown to be not very reliable due to numerous factors, in addition to improper suggestive police procedures, such as the amount of time the witness was able to see the defendant accused of the crime, the distance and angle and viewing conditions ( good lighting, darkness , was witness wearing his eyeglasses if applicable, memory or poor memory of witness etc. )

An example of some of these problems is illustrated by studies at law schools ( and other places ) in which the students are exposed to an enactment of a crime ( such as stealing papers off the professors’ desk ) occurring quickly ( the perpetrator runs in from outside the classroom and takes the papers and quickly runs out of the classroom ) in front of a large group of students. The students are then asked to describe the perpetrator and the occurrence of the crime. Studies of this type generally resulted in several greatly varying so called eyewitness accounts as to the height, weight, race, clothing, hair color, eye color, what the conduct was ( example taking papers off professors’ desk ) etc. Examples of such wide varying descriptions have been that the person was 6 ft 2 ( when actually 5 ft 9), wearing a baseball cap ( when in fact not even wearing a hat ), the person was male (when in fact female ), person was black ( actually caucasian) etc.

Some of the police procedures that can be improperly suggestive of the wrong person being the perpetrator are :show ups, photo arrays and lineups.

An example of a show up is when a crime is committed ( example robbery of a store ) and the police find someone near the scene of the crime shortly after the commission of the crime and thus show the person to the store owner and say something to the effect that they saw this person nearby acting suspiciously and that they think this is the guy and they ask the owner if it is the guy and the owner usually says yes . This may not be because the owner really saw this guy rob his store, but rather this guy is suggested to him by the police as being the guy since police found him near the scene. Many times this is a case of mistaken identity with the person being a victim of being in the wrong place at the wrong time and fitting a general description of the perpetrator. These general descriptions, due to reasons mentioned above regarding the inherent unreliability of eyewitness identifications, are usually so vague that many people will fit the description. ( example black male, average height, age 20-30, wearing blue jeans, sneakers and hooded sweatshirt with baseball cap). Thus most, although not all, show up identifications are not reliable without other evidence that the police showed the actual perpetrator to the owner.

An example of a suggestive photo array is that the witness is shown 6 or more photos and told the perpetrator is in one of the photos, the perpetrator was known to the owner to be an oriental, and there is only one picture of an oriental. Another example is that all the photos are of people of the correct race and the police officer without saying a word but with his finger under a certain photo, or looks with his eyes upon a certain photo, thus unduly suggesting that the police think this is the guy and that the witness should pick this photo.

In Lineups as with photo arrays, the police are required to lineup people of similar race, height, weight, age, hair color, gender etc as the alleged perpetrator. As with photo arrays, sometimes this is not done very well and results in an identification of a person who did not commit the crime due to the improper suggestiveness of the lineup procedure. ( example there is only one person over 6 ft tall and the perpetrator was known to be over 6 ft tall ). Another example, similar to the photo array examples, is that the lineup contains the correct types of people but the police suggest by pointing, looking with their eyes or even by saying something like do you see anyone you recognize here and when the owner says no or he is not sure then the police officer says are you sure you do not see him or how about #3 doesn’t he look like the guy . ( while this is improper and does not happen often it has happened .

Thus it is very important to a defendant’s case that his attorney make sure that no improperly suggestive procedures were conducted and if there were any improper procedures that the applicable motion to preclude the identifications from being used at trial be made. This also applies even if there were no improper procedures by the police but the witness is mistaken in identifying the defendant as the perpetrator based on one or more factors previously mentioned about the inherent unreliability of eye witness identifications.

Watch for future articles in Criminal and Civil Law.

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