Sunday, January 09, 2005

Beck: Ninth "go ahead" to photospreads

United States v. Beck, __ F.3d. __, 2005 WL 17999 (9th Cir. Jan. 5, 2005): Suggestive photo-lineups, eyewitness identification procedures. Permits showing witness a suspect's surveillance photo before a photospread ID.

Players: Valiant effort by AFPD Christopher Schatz of Portland, Oregon, bad opinion by Wallace.

Facts: Michael Beck charged with bank robbery. Beck, 2005 WL 17999, *1. He moved, pre-trial, to challenge photo line-ups where three bank witnesses were first shown a picture of the bank robber from surveillance photos. Id. He also moved to exclude the testimony of a Probation Officer, who – testifying as a "lay witness," said he had a professional relationship with Beck and identified Beck in the bank photos. Id. All motions were denied and Beck was convicted. Id.

Issue(s): 1. "[W]hether the photospread, and the procedure of showing the surveillance photograph to the eyewitness before the photospread, were unduly suggestive." Id. at *2. "We also must access the extent of prior contact between a witness and a defendant sufficient to render the witness’s lay opinion admissible under [FRE] 701, in order to decide whether probation officer Glover was properly permitted to give lay opinion testimony." Id.

Held: 1. "We conclude that neither the photospread standing alone nor Agent Whipple’s procedure of showing the eyewitnesses the surveillance photo of the robber before each witness scrutinized the photospread was impermissibly suggestive." Id. at *3. 2. "We hold that a lay witness’s testimony is rationally based within the meaning of Rule 701 where it is based upon personal observation and recollection of concrete facts." Id. at *4 (internal quotations and citation omitted).

Of Note: Anyone who has litigated eyewitness identification issues knows of the chasm between the latest scientific and psychological studies in the field, and the courts’ tolerance of these procedures. Ironically, ADPD Schatz argued these studies and the court conceded that contrary social science research existed. Id. at *2 & n.2. The Court concluded, however, that such studies may be relevant in deciding what constitutes an impermissibly suggestive procedure, but did not convince the Court that the Beck procedures themselves "create a substantial likelihood of misidentification." Id.

The opinion is also noteworthy for permitting a Probation Officer to testify as a government identification witness. The PO had a whopping seventy minutes of exposure to the defendant, and yet was still permitted to testify that the bank robber in the surveillance photo was Beck. Id. at *5. Beck is a nice illustration of why the defense often questions the "neutrality" of the Probation Office.

How to Use: Beck will be standard issue for law enforcement, and we can now anticipate routine photospreads that follow the coaching of surveillance photos. Note that in Beck the defense introduced the testimony of Dr. Daniel Reisberg on why the photospread was suggestive. Id. at *5. See also Reisberg bio. Unfortunately, until the law catches up with the science, we’ll largely have to attack these eyewitness ID procedures on cross with defense experts.

For Further Reading: There is a wealth of psychological studies attacking photo line-ups and suggestive ID’s. One interesting and brief overview article compares the evolution (or devolution) of the law, and compares this to new science in the field. See overview article. Another excellent report – with statistical analysis – can be found at the Trowbridge Foundation site. See Trowbridge Report. Perhaps the leading expert on the field is Dr. Susan Loftus – refer to her work, "Eyewitness Testimony." See book web page.

Steven Kalar, Senior Litigator ND Cal FPD


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