Suppressing identification testimony at trial

The Wade hearing

Your criminal defense attorney can ask the court to suppress identification testimony so that the jury does not hear it. The defense attorney does this by making a motion to suppress. The attorney will appear before the judge at a hearing to argue the motion. The hearing on the motion is often called a Wade hearing from the U.S. Supreme Court case United States v. Wade, 388 U. S. 218 (1967).

While a court is not constitutionally required to hold the hearing outside the hearing of the jury, most courts will.

Benefits of a hearing

A pre-trial hearing on a motion to suppress an identification may yield benefits besides the somewhat unlikely suppression of the identification. If your criminal defense lawyer can show that the identification procedure was unduly suggestive, the burden shifts to the prosecution to prove that, under the totality of the circumstances, the identification was reliable. To meet this burden, the prosecution may have to call the victim as a witness. Then your attorney will be able to cross-examination the victim on all the circumstances surrounding his or her observations at the time of the offense and the identification.

Examining the officer at the hearing

The defense rarely wins Wade hearings. Therefore, your defense attorney should focus his or her efforts on laying the groundwork for a trial cross-examination of the officer in charge of the identification or for your own expert witness to testify on the factors that emerged at the hearing.

If the police preserved the array or photographed or videotaped the line-up, the court often will base its findings regarding suggestiveness on the array or line-up itself. Still, your lawyer might question the officer regarding other conduct that may have amounted to improper suggestions.

Areas for your defense attorney to explore when questioning the officer at a hearing and typical questions that your attorney might ask include:

1. Suggestions that may have been made to the witness.

  • Did you or any other officer speak with the witness before the line-up?
  • What did you tell him was going to take place that day?
  • Did you tell him that you had arrested someone?
  • If not, what did you tell him about why he was viewing a line-up?
  • Did anyone accompany the witness?
  • Did you hear them have any conversation about what happened the day of the offense?
  • Did you hear the witness describe the perpetrator to any other officers?
  • What did you say to the witness as you were showing him the line-up?
  • What did he say to you?
  • Did anyone else say anything to him before he made an identification?
  • How much time went by before he made the identification?
  • How do you know that—did you time it? With what? Did you record the time anywhere? Did any other officer?
  • What did you say to the witness after the identification?
  • What did he say?
  • Did you smile at him?
  • Pat him on the back?
  • Did anyone else say anything to him in your presence?
  • You didn’t audiotape your discussion with the witness?
  • You do have tape recorders in your precinct?
  • And even video recorders?
  • You didn’t use either, did you?

2. Descriptions of the perpetrator.

  • Did the witness describe the assailant to you?
  • What was that description?
  • Did he say anything more about the assailant’s hair color/hair style?
  • So he didn’t say anything about the assailant being bald?
  • Did you ask?
  • And he didn’t say anything about the assailant wearing a hat?
  • Did he say anything more about the shade of the assailant’s skin color? Weight? Height? Age?
  • So anything the witness told you about the assailant’s description, you put in your report?
  • If he told you anything more about the assailant’s description [or ask feature by feature—skin color, age, height, weight, build, facial hair, hair style, clothing, etc.], you would have put it in your report, right?
  • Did you put anything in notes that did not make it into the report?
  • Did you tell any other officers anything about the description that did not make it into the report?
  • As you sit here today, there is nothing you can remember about the description that is not in your report?
  • In fact, your memory about what the witness said is based entirely on what’s in your report?

Examining the eyewitness at the hearing

At a pre-trial hearing, your criminal defense attorney will want to ask for as much detail as possible about anything relevant to the identification. Your attorney wants to hear the good and the bad to know what awaits at trial.

Areas to explore with the eyewitness at a hearing include:

  • Any prior acquaintance with the perpetrator.
  • Distractions immediately before the event.
  • On what the witness focused during the event.
  • The duration of the event.
  • Everything the witness noticed about the perpetrator.
  • The description the witness gave to the police, and all he omitted.
  • All the details about any pre-trial identification procedure including:
    • What was said to the witness before and after.
    • The witness’s certainty.
    • How long the witness took to make an identification.
    • Why the witness picked the person identified.
    • Whether the witness thought anyone else in the line-up or photo array could be the perpetrator.