COURT FOR THE COUNTY OF 
| Chapter 10: Identification Evidence |
10-1 Pre-Trial Identifications
There are three grounds for moving to suppress pre-trial identification procedures:
1. your client's right to counsel was violated;
2. the procedure was unduly suggestive; and
3. the procedure was a "fruit" of a Fourth Amendment violation.
You do not need to choose a single theory for your motion. In many cases you will be able to move to suppress the identification on all three grounds.
10-1-a Violation of Right to Counsel
Once the right to counsel has attached, state agents cannot conduct identification procedures without counsel present. People v Anderson, 389 Mich 155, 169 (1973).
10-1-b Suggestibility of Procedure
Whenever an identification procedure is "[u]nnecessarily suggestive and conducive to irreparable misidentification," it must be suppressed. Stovall v Denno, 388 US 293; 87 SCt 1967; 18 LEd2d 1199 (1967); People v Kachar, 400 Mich 78 (1977); Manson v Brathwaite, 432 US 98, 97 SCt 2243; 53 LEd2d 140 (1977). Photographic identification should not be used when the accused is in custody, unless immediate identification is required, it is not possible to arrange a proper lineup, the witnesses are a great distance from the location of the accused, or the defendant refuses to participate in a lineup. People v Anderson, above; People v Harrison, 138 Mich App 74 (1984); People v Ealey, 102 Mich App 301 (1980). Counsel is required at a photographic show-up when the defendant is in custody, People v Kurylczyk, 443 Mich 289 (1993), cert den 510 US 1058 (1994).
A preliminary examination is a pretrial confrontation. A prior confrontation at the preliminary examination can be unduly suggestive, People v Solomon, 47 Mich App 208 (1973), rev'd 391 Mich 767 (1974), but is is not necessarily so; the confrontation must be examined in light of the totality of the circumstances. People v Kurylczyk, 443 Mich 289 (1993).
In deciding whether an identification was unduly suggestive, the court will look at:
1. the witness's opportunity to observe the offender at the time;
2. the witness's degree of attention;
3. the accuracy of the witness's prior description of the offender;
4. the witness's level of certainty at the time of the identification; and
5. the time elapsed between the crime and the identification. Manson v Brathwaite, 432 US 98, at 114-16, 97 SCt 2243, 53 LEd2d 140; People v Colon, 233 Mich App 295 (1998).
10-1-c Tainted Fruit of a Fourth Amendment Violation
If the identification was the fruit of a Fourth Amendment violation, it must be suppressed. Dunaway v New York, 442 US 200; 99 SCt 2248; 60 LEd2d 824 (1979).
Where the pre-trial identification was unduly suggestive or conducted in violation of your client's right to counsel, the witness will not be permitted to make an in-court identification unless the prosecution can show that there is an independent source for that identification. People v Kachar, 400 Mich 78 (1977). The court will consider the following factors in deciding whether an independent source exists for an in-court identification:
1. the witness's prior relationship with the defendant;
2. the witness's opportunity to observe the offense;
3. time elapsed between the incident and the identification;
4. accuracy of the witness's description of the accused;
5. any previous identifications of the defendant by the witness;
6. the nature of the offense;
7. the physical and psychological condition of the witness;
8. any idiosyncratic or other unique features of the defendant that corroborate the accuracy of the witness's identification; and
9. the witness's degree of attention at the time of the identification.
Neil v Biggers, 409 US 188; 93 SCt 375; 34 LEd2d 401 (1972); People v Carter, 415 Mich 558 (1982); People v Kachar, supra; People v Gray, 457 Mich 107 (1998).
The burden is on the defendant to show that his right to counsel was violated and/or that the identification was unduly suggestive. The burden is on the prosecution to show that there is an independent source for an in-court identification. People v Lafayette, 138 Mich App 380 (1984). Although you do not have the burden of proof on independent source, you should consider addressing in your motion the factors that should influence this question. It is also important to be aware of them, of course, in preparing for a hearing on your motion.
10.1 Motion to Suppress Pre-Trial and In-Court Identifications [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
,
Defendant.
/
The defendant, 
, by 
attorney, moves this Court to suppress all testimony
regarding pre-trial identifications and to preclude any in-court identifications made by 
.
This motion is based on state and federal constitutional due process grounds and the following:
1. 
is charged with 
.
2. On 
, the police conducted a 
, after which 
was identified by 
as the perpetrator.
3. 
4. Because the pre-trial identification procedure was unduly suggestive and conducive to irreparable misidentification, it must be suppressed. Manson v Brathwaite, 432 US 98; 97 SCt 2243; 53 LEd2d 140 (1977); People v Anderson, 389 Mich 155 (1973).
5. 
was represented by counsel at the time of the identification procedure.
6. The Defendant's attorney, 
, was not notified of the identification procedure
and therefore was not present at it.
7. The identification procedure must be suppressed since the Defendant's right to have counsel present was violated. People v Anderson, 389 Mich 155 (1973).
9. Because 
was
the
identification procedure must be suppressed as the fruit of the poisonous tree.
10. Based on all the facts stated above, the pre-trial identification of 
by
was the result of improper procedure which was unduly suggestive. The out-of-court
identification and any subsequent in-court identification are therefore unreliable and must be
excluded.
For these reasons, 
requests that this Court suppress:
a. Any reference to the pre-trial identification of the accused by such witnesses who were involved in the improper pre-trial identification;
b. The in-court identification of the accused by such witnesses who were involved in the improper pre-trial identification, as such identification is the product of the improper pre-trial identification.
Further, 
requests that this Court hold an evidentiary hearing in advance of trial to take
testimony from the identifying witness(es) and the officers involved in the identification procedure,
Respectfully submitted,
________________________
Attorney for Defendant