The Idaho Supreme Court once again points out the importance of challenging line-up identifications whenever the issue arises. Many people do not understand how common such evidence is, or how often jurors rely on the identification as the basis for their decisions. Eyewitness identification evidence can destroy a defense case with little more effort than announcing the name of the witness at trial. So how do you handle this problem as the lawyer?
The answer is simple – you challenge the identification before trial, during trial and after the trial if you have lost.
In Wurdemann v. State of Idaho, the Idaho Supreme Court held that John David Wurdemann’s sixth amendment right to effective assistance of counsel was violated by his conviction resulting from an attack on Linda LeBrane. Wurdemann’s lawyers did not adequately prepare for trial and were unaware of the relevant law regarding the admission of such evidence. Counsel failed to challenge LeBrane’s eyewitness identification of Mr. Wurdemann in a video line-up the Court reasoned was improperly suggestive. From that video, Wurdemann was identified as one of four attackers. His lawyers should have filed a motion to suppress the identification before trial, but they did not even object at trial.
Linda LeBrane picked Wurdemann out of a video lineup, some two years after she was severely beaten while driving from Washington to Utah. She had picked out men other than Wurdemann as her attacker from at least three other photo lineups. LeBrane described her attacker to police as a “very, very tall and thin” Hispanic or Native American man with long, dark greasy hair. She also said he had a “really bad rash” on his face, spoke English, and no facial hair. In the video lineup Wurdemann was one of six men shown to LeBrane, three of whom had long hair. Of those with long hair, Wurdemann was much taller than the other two. One of the other two did not speak English and the other had facial hair. And if that was not enough, a detective who investigated the beating identified another man as more closely matching the composite drawing of LeBrane’s attacker. That man was a known accomplice of a codefendant convicted in the case.
As Chief Justice Burdick wrote, “such a lineup is the epitome of an improperly suggestive lineup.” Left unchallenged before trial, and without an expert witness on eyewitness identification, the Court held Wurdemann had not received a fair trial.
And the whole point of any trial is to provide a fair forum for the determination of the facts.
What should you do when faced with the identification evidence and a lineup? Is the lineup suggestive – does it point the witness to the defendant? If it does, challenge the lineup before trial by filing a motion to suppress, and object at trial. Hire an expert to testify as to the suggestiveness of the lineup and the value of such testimony in general.
The language in the case reminds us as lawyers that regardless of the type of evidence, or the type of case, a pretrial challenge may be the only way to effectively represent our client. That is particularly true in any sexual assault or battery case. The eyewitness identification may be the only real evidence linking a defendant to a crime. That duty to defend diligently requires lawyers to prepare and research the law in every case. You cannot simply rely on your ability to cross-examine at trial. Wurdemann’s lawyers overlooked their obligation to challenge the admission of the video lineup under Idaho Criminal Rule 12(b)(3). That rule permits defendants to file motions to suppress when evidence was illegally obtained or is otherwise constitutionally inadmissible. The Court ruled that there was no reasonable trial strategy that excused the lawyers’ failure to object to the admission of the video lineup. They simply did not adequately prepare, review, research and object!
Preparation for trial takes time and effort. Every case requires the lawyer know the facts, the law, and how they intersect. The bottom line for us is simple. We cannot get lazy.
Have a trial question? Drop us a line and maybe we can all learn something.