U.S. v. Criswell, 78 M.J. 136

Military Justice Personnel: Military Judge: Discretion

1. even if reasonable minds could differ about the application of the facts to the law, a military judge does not abuse his discretion in deciding to suppress an in-court identification on the ground that the in-court identification would be significantly impacted by a prior unreliable identification
2. a military judge abuses his discretion when his findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law
3. in this case, a military judge’s omission of an express discussion of weighing the five Biggers (Neil v. Biggers, 409 U.S. 188 (1972)) factors against the suggestiveness of the initial identification did not indicate that the military judge had an incorrect view of the law where (1) appellant did not contend that the military judge misunderstood this aspect of the MRE 321 analysis, (2) in the absence of clear evidence to the contrary, it is presumed that military judges know the law and follow it, and (3) the military judge emphasized that he had considered all the surrounding circumstances in determining that the in-court identification was reliable
4. in applying the abuse of discretion standard, the question is not whether conflicting evidence might have been weighed differently, the question is only whether the military judge made a decision outside of the range of reasonable choices
5. in this case, viewing the evidence in the light most favorable to the government, the military judge’s conclusion that the victim’s in-court identification of appellant was reliable, even though a pretrial identification was unnecessarily suggestive, was not outside the range of choices reasonably arising from the applicable facts and the law where (1) the victim was confronted twice by her assailant, was in his presence for a significant amount of time, and could see her assailant’s face clearly, (2) the victim was extremely attentive to her assailant’s features during the time that she was in his presence, (3) the victim gave a very detailed description of her assailant, a description that was corroborated by another witness at the time of the assault, (4) the victim’s identification of her assailant when shown a single photo of appellant prior to trial was immediate and certain, and (5) the length of time between the crime and the confrontation with the single photo was less than 24 hours, a very short amount of time leaving little opportunity for the victim to forget whatever she remembered about her assailant and therefore be persuaded by seeing only a single photo, and where the military judge considered all the surrounding circumstances, including environmental factors and the discrepancies raised by the defense in cross-examination; accordingly, the military judge did not abuse his discretion in denying appellant’s motion to suppress the victim’s in-court identification

Core Criminal Law Subjects: Evidence: Generally

1. eyewitness identifications are problematic in any criminal justice system; on one hand, eyewitness identifications are often the most compelling evidence linking a suspect to a crime; but on the other hand, experience has shown that eyewitness identifications are not always accurate; eyewitnesses can be mistaken because of anxiety, surprise, lack of focus, or other factors at the time of the crime
2. MRE 321 is a complex provision that addresses testimony about out-of-court eyewitness identifications (such as those which might have occurred in a police station before trial) and in-court eyewitness identifications (such as those in which a witness points to the accused sitting at the defense table); MRE 321(a) states a rule that generally makes relevant testimony concerning eyewitness identifications admissible; but MRE 321(b) creates an exception to the rule, providing that testimony about eyewitness identifications is inadmissible if the identifications: (1) were the result of an unlawful lineup or other unlawful identification process; or (2) their exclusion is required by the Due Process Clause of the Fifth Amendment to the Constitution of the United States as applied to members of the Armed Forces; MRE 321(c)(1) provides that a lineup or other identification process is unlawful if the process is so suggestive as to create a substantial likelihood of misidentification
3. under MRE 321, the first question to ask is whether the identification process at issue was unnecessarily suggestive; assuming that it was, the second question is whether the process was conducive to a likelihood of misidentification; in answering the second question, five factors are considered: (1) the opportunity of the witness to view the perpetrator at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the perpetrator; (4) the witness’s demonstrated level of certainty during the confrontation; and (5) the elapsed time between the criminal act and the confrontation; these factors are then weighed against the corrupting effect of the suggestive identification itself; the purpose of the weighing is to determine whether under the totality of the circumstances the identification was reliable even though the confrontation procedure was suggestive
4. under MRE 321(d)(6)(B)(i), when an objection raises the issue of an unreliable identification, the prosecution must prove by a preponderance of the evidence that the identification was reliable under the circumstances; MRE 321(d)(6)(B)(ii) then states that when the military judge determines that an identification is the result of an unreliable identification, a later identification may be admitted if the prosecution proves by clear and convincing evidence that the later identification is not the result of the inadmissible identification
5. even if reasonable minds could differ about the application of the facts to the law, a military judge does not abuse his discretion in deciding to suppress an in-court identification on the ground that the in-court identification would be significantly impacted by a prior unreliable identification
6. without producing the photographs used in a suggestive prior identification, the government in some cases will have difficulty proving by clear and convincing evidence that the later identification is not the result of the inadmissible identification as required by M.R.E. 321(d)(6)(B)(ii); however, the government may be able to meet this burden by other means
7. while a military judge may choose to accord greater weight to statements made by a witness before the witness has seen a suggestive photograph, there is no rule prohibiting the military judge from considering subsequent descriptions of the accused in applying MRE 321(d)(6)(B)(ii)
8. in this case, a military judge’s omission of an express discussion of weighing the five Biggers (Neil v. Biggers, 409 U.S. 188 (1972)) factors against the suggestiveness of the initial identification did not indicate that the military judge had an incorrect view of the law where (1) appellant did not contend that the military judge misunderstood this aspect of the MRE 321 analysis, (2) in the absence of clear evidence to the contrary, it is presumed that military judges know the law and follow it, and (3) the military judge emphasized that he had considered all the surrounding circumstances in determining that the in-court identification was reliable
9. in this case, viewing the evidence in the light most favorable to the government, the military judge’s conclusion that the victim’s in-court identification of appellant was reliable, even though a pretrial identification was unnecessarily suggestive, was not outside the range of choices reasonably arising from the applicable facts and the law where (1) the victim was confronted twice by her assailant, was in his presence for a significant amount of time, and could see her assailant’s face clearly, (2) the victim was extremely attentive to her assailant’s features during the time that she was in his presence, (3) the victim gave a very detailed description of her assailant, a description that was corroborated by another witness at the time of the assault, (4) the victim’s identification of her assailant when shown a single photo of appellant prior to trial was immediate and certain, and (5) the length of time between the crime and the confrontation with the single photo was less than 24 hours, a very short amount of time leaving little opportunity for the victim to forget whatever she remembered about her assailant and therefore be persuaded by seeing only a single photo, and where the military judge considered all the surrounding circumstances, including environmental factors and the discrepancies raised by the defense in cross-examination; accordingly, the military judge did not abuse his discretion in denying appellant’s motion to suppress the victim’s in-court identification
10. the inquiry under MRE 321 is not limited to the five Biggers (Neil v. Biggers, 409 U.S. 188 (1972)) factors

Core Criminal Law Subjects: Witnesses: Generally

1. eyewitness identifications are problematic in any criminal justice system; on one hand, eyewitness identifications are often the most compelling evidence linking a suspect to a crime; but on the other hand, experience has shown that eyewitness identifications are not always accurate; eyewitnesses can be mistaken because of anxiety, surprise, lack of focus, or other factors at the time of the crime
2. MRE 321 is a complex provision that addresses testimony about out-of-court eyewitness identifications (such as those which might have occurred in a police station before trial) and in-court eyewitness identifications (such as those in which a witness points to the accused sitting at the defense table); MRE 321(a) states a rule that generally makes relevant testimony concerning eyewitness identifications admissible; but MRE 321(b) creates an exception to the rule, providing that testimony about eyewitness identifications is inadmissible if the identifications: (1) were the result of an unlawful lineup or other unlawful identification process; or (2) their exclusion is required by the Due Process Clause of the Fifth Amendment to the Constitution of the United States as applied to members of the Armed Forces; MRE 321(c)(1) provides that a lineup or other identification process is unlawful if the process is so suggestive as to create a substantial likelihood of misidentification
3. under MRE 321, the first question to ask is whether the identification process at issue was unnecessarily suggestive; assuming that it was, the second question is whether the process was conducive to a likelihood of misidentification; in answering the second question, five factors are considered: (1) the opportunity of the witness to view the perpetrator at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the perpetrator; (4) the witness’s demonstrated level of certainty during the confrontation; and (5) the elapsed time between the criminal act and the confrontation; these factors are then weighed against the corrupting effect of the suggestive identification itself; the purpose of the weighing is to determine whether under the totality of the circumstances the identification was reliable even though the confrontation procedure was suggestive
4. under MRE 321(d)(6)(B)(i), when an objection raises the issue of an unreliable identification, the prosecution must prove by a preponderance of the evidence that the identification was reliable under the circumstances; MRE 321(d)(6)(B)(ii) then states that when the military judge determines that an identification is the result of an unreliable identification, a later identification may be admitted if the prosecution proves by clear and convincing evidence that the later identification is not the result of the inadmissible identification
5. even if reasonable minds could differ about the application of the facts to the law, a military judge does not abuse his discretion in deciding to suppress an in-court identification on the ground that the in-court identification would be significantly impacted by a prior unreliable identification
6. without producing the photographs used in a suggestive prior identification, the government in some cases will have difficulty proving by clear and convincing evidence that the later identification is not the result of the inadmissible identification as required by M.R.E. 321(d)(6)(B)(ii); however, the government may be able to meet this burden by other means
7. while a military judge may choose to accord greater weight to statements made by a witness before the witness has seen a suggestive photograph, there is no rule prohibiting the military judge from considering subsequent descriptions of the accused in applying MRE 321(d)(6)(B)(ii)
8. in this case, a military judge’s omission of an express discussion of weighing the five Biggers (Neil v. Biggers, 409 U.S. 188 (1972)) factors against the suggestiveness of the initial identification did not indicate that the military judge had an incorrect view of the law where (1) appellant did not contend that the military judge misunderstood this aspect of the MRE 321 analysis, (2) in the absence of clear evidence to the contrary, it is presumed that military judges know the law and follow it, and (3) the military judge emphasized that he had considered all the surrounding circumstances in determining that the in-court identification was reliable
9. a witness’s certainty in testifying does not prove that the witness is testifying accurately; a witness may, in good faith, hold a belief that is contrary to the actual facts
10. in this case, viewing the evidence in the light most favorable to the government, the military judge’s conclusion that the victim’s in-court identification of appellant was reliable, even though a pretrial identification was unnecessarily suggestive, was not outside the range of choices reasonably arising from the applicable facts and the law where (1) the victim was confronted twice by her assailant, was in his presence for a significant amount of time, and could see her assailant’s face clearly, (2) the victim was extremely attentive to her assailant’s features during the time that she was in his presence, (3) the victim gave a very detailed description of her assailant, a description that was corroborated by another witness at the time of the assault, (4) the victim’s identification of her assailant when shown a single photo of appellant prior to trial was immediate and certain, and (5) the length of time between the crime and the confrontation with the single photo was less than 24 hours, a very short amount of time leaving little opportunity for the victim to forget whatever she remembered about her assailant and therefore be persuaded by seeing only a single photo, and where the military judge considered all the surrounding circumstances, including environmental factors and the discrepancies raised by the defense in cross-examination; accordingly, the military judge did not abuse his discretion in denying appellant’s motion to suppress the victim’s in-court identification
11. the inquiry under MRE 321 is not limited to the five Biggers (Neil v. Biggers, 409 U.S. 188 (1972)) factors

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Generally

1. under MRE 321(d)(6)(B)(i), when an objection raises the issue of an unreliable identification, the prosecution must prove by a preponderance of the evidence that the identification was reliable under the circumstances; MRE 321(d)(6)(B)(ii) then states that when the military judge determines that an identification is the result of an unreliable identification, a later identification may be admitted if the prosecution proves by clear and convincing evidence that the later identification is not the result of the inadmissible identification
2. without producing the photographs used in a suggestive prior identification, the government in some cases will have difficulty proving by clear and convincing evidence that the later identification is not the result of the inadmissible identification as required by M.R.E. 321(d)(6)(B)(ii); however, the government may be able to meet this burden by other means

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews a military judge’s ruling on a motion to suppress an eyewitness identification for abuse of discretion, viewing the evidence in the light most favorable to the prevailing party; it does not undertake a de novo analysis of whether the in-court identification should have been admitted; instead, it focuses on appellant’s objections to the military judge’s findings of fact, view of the law, and conclusions in applying the law to the facts
2. a finding of fact is clearly erroneous when there is no evidence to support the finding, or when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed