Federal Evidence Review

Seventh Circuit concludes in-court identification by cooperating drug trafficking conspiracy witness, who was allowed to move around the courtroom to identify the defendant, was not "unduly suggestive" under the Fifth Amendment Due Process Clause, in United States v. Recendiz, 557 F.3d 511 (7th Cir. March 3, 2009) (Nos. 06-1754, 06-2380, 06-2821)

In-court identification can provide significant, dramatic evidence at trial. However, constitutional issues can arise whether the identification under the Fifth Amendment Due Process Clause is “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384 (1968). In a recent case, the Seventh Circuit considered an in-court identification in which the witness was allowed to move around the courtroom to identify the defendant who was seated at the defense table.

In the case, the defendant was prosecuted for his role in a large cocaine trafficking conspiracy. At trial, a cooperating witness testified that “the Doctor,” whose real name was “Navarro,” was a supplier of drugs. As the opinion recounted:

“Toward the beginning of his testimony, when asked whether he saw ‘the Doctor’ in the courtroom, [cooperating witness] Tmiri replied that he did not. However, he testified that he had seen ‘the Doctor’ more than twenty times and described his physical characteristics: ‘He’s dark skin, he’s got a mustache, black hair, kind of straight, and I think he’s got a little scar on his face.’ Tmiri was also unable to identify Thomas, despite the fact that both defendants were seated at the defense table. Later in his testimony, however, Tmiri explained that he had broken his glasses prior to the trial and could not even make out the facial features of the prosecutor who was questioning him. Toward the end of Tmiri’s testimony, the prosecutor requested permission from the court for Tmiri to leave the witness stand and move closer to the people in the courtroom to determine whether he recognized anyone. Navar’s counsel consulted with Thomas’s counsel, but neither objected to the procedure. With the court’s consent, Tmiri left the stand and identified both Navar and Thomas. Navar contends that this procedure violated his right to due process by improperly suggesting to Tmiri that he identify Navar.”

Recendiz, 557 F.3d at 525. The defendants were convicted. For the first time on appeal, defendant Navar objected that the in-court identification was unduly suggestive and violated the Due Process Clause.

The Seventh Circuit reviewed the issue for plain error since no trial objection had been made. In reviewing the issue, the Seventh Circuit noted its limited role in reviewing an identification made during trial:

“In conducting this analysis, we must remember that our purpose is only to determine whether the district court properly permitted the jury to hear the identification testimony. We will not assess the accuracy of the actual identification, for that is the exclusive province of the jury. Our role, rather, is to determine whether the identification was so unreliable that the defendant’s constitutional right to a fair trial should have precluded its admission.”

Recendiz, 557 F.3d at 524 (citation omitted).

Necessity of Procedure Trial Court Used

The circuit noted that the procedure was necessary because when the prosecutor asked the witness, a cooperating cocaine “broker” to identify the "the Doctor" who supplied the contraband, the witness balked. The witness had met with the person called “the Doctor” over twenty times during the course of the conspiracy. However, the witness "stated that he could not identify" him, explaining that he needed glasses to do so because his had broken. In response the prosecutor asked and the court allowed the witness "to move closer to the audience" and see if he could identify anyone. The defendant suggested that by allowing this form of identification, the prosecutor had impermissibly suggested to the witness that “the Doctor” was in fact in the courtroom." Recendiz, 557 F.3d at 525.

Presence At Defense Table Not Sufficiently Suggestive

The circuit rejected this defense argument, indicating it would not “deviate from [the] general rule” that “a defendant's mere presence at the defense table is not enough to establish a violation of due process.” Recendiz, 557 F.3d at 525 (citing United States v. Bush, 749 F.2d 1227, 1232 (7th Cir. 1984) (Rejecting argument that identification of defendant who was sitting at counsel's table was suggestive because “[t]his circumstance alone is not enough to establish a violation of due process. Without more, any uncertainty surrounding Ms. Metternich's testimony, whether because of length of time since commission of the offense or the lack of a reliable pretrial identification or the suggestiveness of the seating arrangements at trial, was for the jury to consider.”).

The circuit also indicated that mere proximity to the person identified did not suggest to the witness who to identify and because the witness testified “that he could not see” allowing him to “move forward was a necessary step for him to make any identification. Even the sequence of the questioning itself was necessary, for no one in the courtroom was aware that [witness] Tmiri could not see without his glasses until after he was initially unable to identify Navar…. Nothing about the sequence of the questions suggested to Tmiri whom he should identify or that Navar was in fact present." Recendiz, 557 F.3d at 525.

Harmless Error Factors

But even had the procedure the court allowed been unduly suggestive, its use was harmless because it was clear that the identification procedure was reliable – the “linchpin in determining the admissibility of identification testimony.” Recendiz, 557 F.3d at 525 (quoting Manson v. Brathwaite, 432 U.S. 98, 114 (1977) (In assessing whether an identification was reliable, a court should consider the following factors: (1) the opportunity of the witness to view the criminal at the time of the crime (or prior to the identification), (2) the witness's degree of attention during such an opportunity, (3) the accuracy of the witness's prior description of the criminal, if he made one, (4) the level of certainty demonstrated at the time of the identification, and (5) the time between the crime and the identification.)). Applying these factors, which the circuit referred to as “Biggers” factors based on Neil v. Biggers, 409 U.S. 188, 198 (1972), the circuit noted the following:

Seventh Circuit Considers BiggersFactors

Factor	Description	Assessment
First Factor	Witness's Opportunity to View Defendant	The witness had seen the defendant "over twenty times" before his arrest, which was an "ample opportunity" for identification.
Second Factor	Degree of Attention to Defendant	The circuit found that the witness did not address his "degree of attention" during his meetings with the defendant.
Third Factor	Accuracy of Prior Identifications by Witness	While the witness did not provide a detailed description of the defendant prior to trial, he did make "a detailed description" of the defendant prior to the in-court identification, satisfying the third factor.
Fourth Factor	Level of Certainty	The witness "exhibited no uncertainty at trial" as to who was the defendant noted the circuit, once he was allowed to view persons within the range of his visual focus.
Fifth Factor	Time Lapse	While the in-court identification occurred almost two years after the witness's last interaction with the defendant, "any concern over that length of time is diminished by the strength of the other factors-particularly Tmiri's familiarity with Navar and his specific description of him."

The circuit noted an additional consideration to the five Biggers factors. Because the identification occurred in view of the jury, the jury was able to “observe[ ] and presumably weighe[ ] any arguably suggestive circumstances” of the identification. Recendiz, 557 F.3d at 526.

Even If Identification Procedure Was Erroneous, It Was Harmless

Since identification testimony “should be kept from the jury only if it is so unreliable that it presents ‘a very substantial likelihood of irreparable misidentification,’” the circuit rejected that in the defendant’s case an error in admitting it was “irreparable” because “the in-court identification was not tainted by a previous out-of-court identification, the jury is in the unique position of observing the entire identification procedure, and it may weigh the accuracy of the identification accordingly.” Recendiz, 557 F.3d at 526. The defendant was unable to show that the circumstances of the identification was such that the jury gave “excessive weight to the eyewitness testimony.”

While the in-court identification in Recendiz was certainly novel, it did not result in a constitutional violation. The case underscores the applicable factors that are considered when this issue arises.