Show-up Identification Procedures are Ripe for Challenge

In a recent case, Attorney Henry Fasoldt successfully argued that the show-up identification procedure used by the police was so "unnecessarily suggestive" that it was unconstitutional. The judge agreed and the Identification made by the witnesses was suppressed. Going one step further, the judge suppressed any future in-court identifications by the same witnesses as he ruled that any subsequent ID would be "tainted" by the original ID. The case for the Commonwealth was significantly weakened by the exclusion of this evidence.

In this case, Henry's client, a young man, was accused of Breaking into a Car and stealing items inside. Witnesses said they saw "3 young males dressed in dark clothing" inside the car. No other description was given. The police stopped a young male 3 blocks away from the car. They held him in place while another officer drove to the scene with the witnesses in the rear seat of the cruiser. As they passed by the suspect - who was handcuffed and standing between two uniformed officers - the witnesses all positively identified Henry's client as one of the people who had broken into the car. None of the suspects stated with specificity as to how they recognized Henry's client.

At the hearing, Attorney Fasoldt showed that the officer(s) did not properly follow the identification procedures instituted by their own police department. He argued that the deviation from the standard ID practice was substantial. The judge agreed. In his ruling, the judge stated that, according to Massachusetts law, as well as their own department's procedures, witnesses must view the suspect "individually." Additionally, the witnesses must state "in their own words" how they know the person and how "sure" they are of their ID. The judge also held that the circumstances surrounding the ID were "overly suggestive" the fact that he was in handcuffs, the presence of 2 unformed police officers, and the "drive-by" nature of the procedure.

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