7.5 Identification as Fruit of an Illegal Search or Seizure
A difficult identification issue arises in cases in which the suspect is unlawfully detained in violation of the Fourth Amendment. The problem can surface in two ways. The first is when the defendant is improperly arrested, brought to trial, and then identified by the witness at the trial. Here the courts typically find that the unlawful nature of the arrest is essentially irrelevant to the legality of the identification51 under the right-to-counsel and due process provisions.52
The second situation is more complicated. Here the suspect is detained on less than probable cause,53 and some sort of identification procedure—photographs, fingerprints—takes place while the person remains under police control. In regard to this process, because the defendant is still improperly in custody,54 the courts are less forgiving and typically find that the identification process is the fruit of the poisonous tree55—the direct and immediate result of the improper detention—and thus itself subject to exclusion.56
References
Articles
Noah Clements, Flipping a Coin: A Solution for the Inherent Unreliability of Eyewitness Identification Testimony, 40 Ind. L. Rev. 271 (2007).
Jules Epstein, Irreparable Misidentifications and Reliability: Reassessing the Threshold for Admissibility of Eyewitness Identification, 58 Vill. L. Rev, 69 (2013).
Sandra Guerra Thompson, Beyond a Reasonable Doubt? Reconsidering Uncorroborated Identification Testimony, 41 U.C. Davis L. Rev. 1487 (2008).
Sandra Guerra Thompson, Daubert Gatekeeping for Eyewitness Identifications, 65 SMU L. Rev. 593 (2012).
Sandra Guerra Thompson, Judicial Gatekeeping of...
