Brisco v. Ercole, available here. It's fresh off the presses so no Westlaw cite yet. I'll update it later when it's available.
In Brisco, the Second Circuit reversed a lower court's grant of a habeas petition. The question in the case is whether the on-the-scene showup* identification was unduly suggestive. In other words, was it done in such a suggestive way that it impermissibly and inevitably led the victim to identify the petitioner as the assailant. The district court said yes, but the Second Circuit said no, holding that, while an on-the-scene show-up is obviously suggestive, it was not unnecessarily suggestive under the circumstances of this case.
* A showup is a term of art that means the police actually showing the suspect to the victim. How it is usually done is that the police will physically present the suspect, at or near the crime scene, to the suspect a short time after the incident. It's ostensibly justified on the ground that it is done to make sure that the police have grabbed the right person, but it has become so common that it really is more of an investigatory tactic.
Brisco is an interesting decision on the merits, particularly as it pertains to the right level of deference that should be given to the state courts, all of which found that the showup was okay.
What's just as interesting is the concurring opinion, itself a rare treat. The concurring judge believed that the showup was unnecessarily suggestive, but that habeas relief should be denied based on other evidence in the case corroborating the identification. What's most interesting about the concurring opinion is its dissection of prior Supreme Court precedent. The judge concludes that Supreme Court precedent supports the conclusion that corroborating evidence can be considered in determining whether the identification is independently reliable. This is important since, even if the identification procedure was suggestive, it can be upheld if the suggestiveness was mitigated by the fact that there was a reliable basis to conclude that the victim would have picked the assailant even under non-suggestive circumstances. The main opinion did not look at corroborating evidence, but only looked at factors that affected the witnesses ability to accurately identify the assailant. For the concurring judge, an independently reliable identification can be expanded beyond the victim's ability to perceive and can conclude other evidence to show that the police got the right person. It's an expansive reading of independently reliable and not good for habeas petitioners (or criminal defendants in any court).
Because it's only a concurring opinion, it's not yet the law. But it's now out there for other judges to consider.
In Brisco, the Second Circuit reversed a lower court's grant of a habeas petition. The question in the case is whether the on-the-scene showup* identification was unduly suggestive. In other words, was it done in such a suggestive way that it impermissibly and inevitably led the victim to identify the petitioner as the assailant. The district court said yes, but the Second Circuit said no, holding that, while an on-the-scene show-up is obviously suggestive, it was not unnecessarily suggestive under the circumstances of this case.
* A showup is a term of art that means the police actually showing the suspect to the victim. How it is usually done is that the police will physically present the suspect, at or near the crime scene, to the suspect a short time after the incident. It's ostensibly justified on the ground that it is done to make sure that the police have grabbed the right person, but it has become so common that it really is more of an investigatory tactic.
Brisco is an interesting decision on the merits, particularly as it pertains to the right level of deference that should be given to the state courts, all of which found that the showup was okay.
What's just as interesting is the concurring opinion, itself a rare treat. The concurring judge believed that the showup was unnecessarily suggestive, but that habeas relief should be denied based on other evidence in the case corroborating the identification. What's most interesting about the concurring opinion is its dissection of prior Supreme Court precedent. The judge concludes that Supreme Court precedent supports the conclusion that corroborating evidence can be considered in determining whether the identification is independently reliable. This is important since, even if the identification procedure was suggestive, it can be upheld if the suggestiveness was mitigated by the fact that there was a reliable basis to conclude that the victim would have picked the assailant even under non-suggestive circumstances. The main opinion did not look at corroborating evidence, but only looked at factors that affected the witnesses ability to accurately identify the assailant. For the concurring judge, an independently reliable identification can be expanded beyond the victim's ability to perceive and can conclude other evidence to show that the police got the right person. It's an expansive reading of independently reliable and not good for habeas petitioners (or criminal defendants in any court).
Because it's only a concurring opinion, it's not yet the law. But it's now out there for other judges to consider.
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