In-court identifications are just as suggestive, if not more so, than showups. But what could the alternative be?

This is the 100th page of this chapter! (We’re getting close to its last page, too.) It’s the 765th page of the comic overall, for those keeping track at home. And so long as I’m spouting meaningless statistics, as of 9:30 p.m. Eastern time on April 11, 2016, there have been 5,963 thoughtful and entertaining comments from my amazing readers… 15,517,641 pages read since the thing started at the end of December 2011… and nearly half of all those pages were read in the last year alone, with the average visitor staying for 14.27 pages…

…and not ONE disrespectful, obnoxious, or deranged comment ever! Are you guys sure you’re on the right internet?

Seriously, you folks are absolutely the best audience anyone could hope for. The BEST! Thanks for turning this into something I never imagined it would be.

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There are now 29 comments... what are your thoughts?
  1. Jeff B says

    I hope you appreciate the restraint it took to not output the contents of my hindbrain directly into this comment form field as a direct response to your notes above. D:

    If these procedures are so terrible (and I’m perfectly willing to agree they are), what does it take to get them changed?

    • I’m gonna guess “legislative branch”. The guys who write the laws, rather than the guys who read ’em.

      • Here is the problem with that, the guys who read the laws have the right to nullify them. If the courts wanted to change the laws that govern eyewitness identification, then they would have done it by now. So anything that the legislative branch did that actually required the courts to abandon unreliable eyewitness identification procedures would probably get overturned, unless the composition of the bench changed beforehand.

  2. Adal says

    “[…] been allowed since times immemorial?”
    I guess they played this card every time something was about to be changed, but I had hoped that we moved beyond this kind of reasoning at some point.
    It’s not too far removed from “How am I supposed to make him talk if I can’t torture him?”, after all.

    • Easy, you just waterboard the shit out of him. That’s not torture, right? That’s enhanced interrogation technique…

      Awesome comics. although I can’t wait for this chapter to wrap up and switch to the next topic.

    • Back in time immemorial (specifically, any time before July 6, 1189, as defined by the first Statute of Westminster in 1275), this method of identification was reliable. Back then, of course, nearly everyone lived in small, rural communities where everyone knew everyone else. So you could never really make a mistake in identifying someone–he was almost always your neighbor. It’s easy to recognize a face you know, and if it is one you don’t know, he is probably the only outsider in the area, so again, there is little doubt of who you saw. And of course, there were no issues like cross-racial identification, for obvious reasons. A witness who was trustworthy and saw the suspect clearly could essentially never make a mistake. Thus, the only questions were whether the witness saw clearly and was trustworthy, which are issues that cross-examination can deal with to some degree.

      Now, most people live in large, anonymous cities (and crime is more likely to occur in such places). So the method of identification is no longer very reliable, but that doesn’t mean the courts will keep up.

  3. Greg says

    How strict are the rules about who can sit at the defense table? ‘Cause, if I were a defense attorney in a case that hinged on a witness being able to identify the suspect, I’d be seriously tempted to hire a couple of actors who closely resemble my client and have them sit at the table with the defendant, just to make it a little more challenging for the witness making an in-court ID.

    • It’s been done. The following case is illuminating:

      The defense attorney was hit with contempt charges because he didn’t tell the judge and prosecutor in advance. (The subtext being that it wasn’t fair because the prosecution’s witness – a police officer – didn’t know that he was being asked to actually identify the suspect, and not just “identify” the subject.)

      • It seems like it would be done more often. A fine of a few hundred dollars seems small compared to winning the case — you could always have it in the contract that any contempt charges were to be paid by the client.

        • Don’t taunt the judge. A few hundred dollars is the, “yes, very clever, but don’t do it again” penalty. The “I have told you multiple times, in no uncertain terms, not to do that, and you persist in defying my authority” penalty can be debilitating.

          • To say nothing of the harm done to an attorney’s professional reputation if they start being known for pulling crap like that. It’s very impressive to the jury, they’ve never seen that trick before and they don’t understand how inaccurate eyewitness accounts and in-court IDs are.

            Everybody else in the room sees it for the stupid stunt it is, and they’re the ones you’ll need to deal with again. Worse, people talk. If you get a reputation for pulling fast ones, other attorneys won’t want to cut deals with you for fear you might not be on the level, and judges will give you a LOT less leeway if they think you might be pulling another one of your stunts. Reputation is everything in the legal field, and something that seems like a clever trick the first time will bite you in the ass if you make a habit of it.

            • As always, the line between permissible shenanigans and a contempt citation is unclear and depends on what judge you’re dealing with – some of them have much more tolerance for courtroom antics than others. (Who was the judge in the OJ Simpson trial? That was a three-ring circus, not a trial – which is a big reason why Simpson got off.)

              I imagine that most judges wouldn’t have done a contempt charge in this particular case – some would have applauded, some would have just told the attorney in question not to pull that again. (And plenty, judging by the Ninth Circuit, would have done both.)

      • From the article: “the Illinois Supreme Court upheld the judge’s other finding: that the defense lawyer, David Sotomayor, should be fined and held in criminal contempt for ‘conduct calculated to embarrass, hinder or obstruct a court in its administration of justice or to derogate from its authority or dignity.'”

        Wait, the law treats *embarrassing* the court the same as *obstructing* the court? They are literally the same charge?

        I knew that judges have a lot of discretionary power that they can use against people who upset them, but I didn’t realize that embarrassing one was an actual criminal offense in itself! That doesn’t seem reasonable.

        • When you embarrass the court, you undermine it’s authority. The courts operate entirely upon respect for their authority. So, yes, when you go out of your way to embarrass the court, you do hinder and obstruct it.

          As for who can sit at the table, I think each court has rules on who can and can’t, but usually, people who aren’t directly involved in the case need to stay behind the “bar”.

          • Criminals don’t go to court and face sentencing out of respect for the court’s authority, they go because they are compelled by direct force (or threat of direct force).

            Yes, the court (and the government in general) does depend on *most* participants cooperating willingly. Therefore, embarrassing the court might slightly undermine their ability to do their job, in a vague, indirect sort of way. But so do journalists writing unflattering articles about a trial, or people arguing that courts are unfair and we need to pass laws to change how they work. That seems to me like exactly the sort of argument that the first amendment is designed to block: yes, criticizing them makes it harder for them to do their job, but making them immune from criticism would be FAR more dangerous.

            Maybe it’s possible to draw a principled distinction between “embarrassing” and “criticizing”, but I think it’s pretty tough to do a good job of the latter without also doing the former.

            • Indeed, if embarrassment begets change then it seems a preferable consequence to state sponsored vigilantism. “It seems right, therefore it must me right! Right?”

            • Well, I think the principle is that courtrooms want to be some kind of civilized. Allowing a courtroom to turn into a clown show is not usually conducive to justice (for example, the OJ Simpson trial went not guilty in part because courtroom antics overshadowed the actual fact-finding process). Of course, some judges go overboard on running a tight ship, too.

                • Agreed, but the line between “acceptable,” “don’t do it again,” and “contempt” is up to the judge. Again, some judges allow a lot more than others – and this judge apparently either didn’t like the tactic, or this particular attorney was known for pulling shenanigans (it says he’s known for “aggressive and innovative” tactics).

                  I mean, I’d align with the dissenters on this one – I don’t think the attorney did anything wrong. But I can see how the judge might not be happy about it, especially if it was an attorney who was known for being the court clown.

      • “The Federal judge found the lawyer in criminal contempt. The Ninth Circuit saluted the lawyer, then unanimously upheld the contempt.” Heh.

        That’s a slightly different situation, though, since the defendant wasn’t at the table at all. He was in the gallery. They had picked out a guy who looked kind of like him (who worked for the law firm), sat him in the chair, and acted like he was the defendant. I’m guessing the deception as to the actual identity of the person at the table is what got him the contempt charge.

  4. Y. Exeter says

    Nate, just do a comic strip with an oblique reference to something hot-button or political, and trolls and ideologues will be tripping over themselves to call you a shill or level a veritable bouillabaisse of slurs and insults at you.

    • “Yes, I saw who committed the crime, and it was the man sitting at that table there. I remember he asked me if I wanted to become a gay terrorist in order to stamp out gun control, but I was too busy raising the minimum wage for abortion providers at the time.”

    • “Hot-button or political,” you say?

      Just wait until we start Constitutional Law in the next chapter. Free speech, abortion, gun control, immigration, religion, the regulatory state, the role of government and how much power it should have, universal healthcare, elections, war powers, foreign policy, taxes, presidential powers, civil rights… you name it!

      My goal is to play it absolutely straight — this is how it is. This is why it is. Here are the problems people see and why. Taking no position myself. I predict I’ll piss off about half of the people in the first chapter, and the other half not long after. We’ll see how the comments look then!

      • The only things that piss me off is when the rules are internally inconsistent – which I hope they are – or they are demonstrably wrong – which as far as this chapter has gone some of them are. So I guess I’m already pissed off. XD

      • “Taking no position myself.” Is that possible? Won’t your personal biases influence which case law you quote (We did just spend a lot of time in psychology…)? Isn’t that the point of the adversarial system? When preparing appeals, don’t you also read the dissents, as well as the affirmations? Very rarely does the court hand down a one-sided position — that is, they all seem to be very divided — so the interpretation of the law is about the ruling side’s biases.

        • Well, my personal preferences don’t have much to do with what the law is, or why it is the way it is. If the law is X, I can’t go around misleading you by cherry-picking a case that says Y, even if I like Y better.

          Where the courts have spoken clearly, I’ll tell you what they’ve said and try to explain it in the context of what’s been said before. Where the courts haven’t spoken clearly, I’ll try to present the competing principles, and see how they fit within existing jurisprudence. Where my own personal preference is different, I’ll keep it to myself.

          That doesn’t mean I won’t criticize the law. Sometimes the law doesn’t seem to make sense, or seems to have unintended consequences. When that happens, I do try to explain why. Sometimes decisions miss the point, sometimes there’s a conflict of principles, and sometimes they’re simply unprincipled. (See previous bits on strict liability, the exclusionary rule, Miranda, etc.) Sometimes there’s confusion over what the law means, how it should be interpreted, and even what law is for. Highlighting these underlying currents and eddies of legal thought are by definition criticism. But not in the sense of “I disagree so that’s wrong,” but rather as a basis for explaining otherwise inexplicable or inconsistent holdings.

          So any bias in these pages will probably not be political (this side vs. that side), so much as my sense of whether our law is working as it should, or whether it’s glitched. You may well say that’s a false distinction — am I not more likely to think of a law as “glitched” if I disagree with its outcome? I’m certainly more likely to notice contrast than congruence. But I like to think I’m student enough to let others, who’ve spotted contrasts I missed, to lead me to them. (In fact, I’m more likely to read people who disagree with me — I already know what I think and why, and an echo chamber is just as deadly to the intellect as the gas chamber.) And if I miss anything, I’m counting on all of you to pounce on it and upbraid me for the omission.

  5. onath says

    I just served on a jury. “Can you identify Δ?” felt entirely farcical. A blindfolded witness saying “I think he’s the guy sitting at the table labelled “Defendant” and looking unhappy” would, in my opinion, have similar probative value. Fortunately for our deliberations (if not our ability to sleep at night), the nature of the allegations was such that the question was inherently “did it happen” rather than “who did it”.

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