a. Object on the Spot to Unfair Proceedings and Suggest Fairer Ways to Handle the Identification
For example, a lawyer may request that police bring witnesses into the viewing room one at a time rather than in a group. Or, a lawyer may urge police to dress all the participants in jail uniforms rather than street clothes, possibly making it more difficult for a witness to recognize the suspect. Unrepresented suspects can't easily accomplish these results, since they will be on the other side of the barrier. Even if they could, they shouldn't—at least not within the hearing of any witnesses who may think them guilty for just speaking up. Even lawyers must be tactful in the way they object to police procedures, both because of possibly prejudicing witnesses and because many courts view the role of lawyers at lineups as mere observers.
b. Note Improper Police Procedures for Later Use in Challenging the Identification
The police may ignore a defense lawyer's objection to an unfair procedure, or a lawyer may make a tactical decision to remain silent and challenge the procedure later. Either way, the defense may later file a pretrial motion (request) for a court to exclude the identification. (See Section V, below.)
c. Observe the Witness's Demeanor and Credibility
Lawyers may use details about police procedure, witness comments and behavior later on in plea bargaining or court. For example, a lawyer might overhear a witness tell a police officer, "I think it's Number Four, but I'm not really sure. It was pretty dark and the guy was wearing a hat." If the witness identifies No. 4 at trial, the defense can bring out the witness's lineup statement to undermine the witness's credibility. Even before trial, the defense may argue to the prosecutor that the witness's uncertainty greatly weakens the witness's credibility and in turn the prosecutor's case. This may persuade the prosecutor to allow the defendant to plead guilty to a less serious charge. (See Chapter 20 for more on the plea bargaining process.)
Because suspects are typically separated from witnesses, they tend not to be able to effectively make these types of observations. Even if they can see witnesses, suspects are often too nervous during lineups to pay this kind of close attention to details.
d. Interview Witnesses Before or After the Lineup
Victims and witnesses often refuse to talk to defense attorneys. However, the presence of police officers in the jail or police station facility where a lineup takes place induces some prosecution witnesses to grant interview requests. Defendants must avoid direct contact with victims and witnesses, but a lawyer may talk to witnesses and sometimes gather useful information. Lawyers might ask witnesses:
· To describe the person who allegedly committed the crime. If, before the lineup, a witness gives a description that differs significantly from the ID'd suspect's appearance, the lawyer may use the discrepancy to later discredit the witness.
· To describe how they originally observed the perpetrator, that is, how far they were from the perpetrator at the time of the alleged crime, what the lighting was like and how certain they are that they would again recognize the perpetrator (again for ammunition to eventually discredit the witness).
· To mention any previous descriptions they've given in connection with this crime—of the defendant or of other possible suspects. If a witness first identified another suspect, the present lineup ID may not be as credible. And, if the police conducted multiple showups or lineups, the police may not have a very strong case against the suspect, but may simply be on a "fishing expedition."
Case Example 1: In a dark alley behind his store, Drake Onian noticed one man wearing a baseball cap speed away in a green car, and saw another guy carrying a bag jump into a minivan and drive off. On the ground near where the men had been standing Drake saw white powder. Drake notified police, who picked up Sam Enella in a green sedan a few blocks away. They found a wad of cash in the car and arrested Sam. The next morning police asked Drake to come down to the station to identify Sam. Drake told the police he would be happy to help, but that he had not gotten a good look at the suspect's face.
Question: How might Sam's lawyer, Ann Ethema, gather helpful information at the lineup?
Answer: Ann might: 1) overhear Drake reminding police officers that he hadn't really gotten a good look at the suspect's face (Ann would use this fact, which makes Drake far less credible, in plea bargaining and urge the D.A. to drop or reduce the charges against Sam); 2) talk to Drake, if he consents (Drake might tell her himself that he didn't get a good look at the perpetrator's face—or at least that it was dark in the alley); 3) sit in on a post-lineup discussion between Drake and the police. (In some places, police routinely discuss lineup IDs with witnesses following the lineup and, if requested, may allow defense counsel to be present. During the conference, Drake might say something that reveals a lack of certainty in his ID, for example, "At first I thought it was Number One, but then when I looked closer, I knew it was Number Four.")
Case Example 2: Jim Nast was arrested for burglary. Before the lineup, Jess Stir, Jim's lawyer, talked with police about how they planned to conduct the lineup. They said that four participants, including Jim, would file on stage one at a time. Three witnesses would observe and note on a police questionnaire which, if any, of the participants they identified as the perpetrator.
Question: What can Stir do to make these procedures more fair?
Answer: Politely urge police to make some changes. For instance, Stir may ask that they add two police officers so there are six participants in the lineup. She might get them to display the participants together rather than bringing them out one at a time. And Stir can try to convince the police to separate the witnesses. Even if the police ask the witnesses to write their conclusions on paper without stating them out loud, they may still talk, whisper or react in a way that influences each other. The police may be
agreeable to make the changes just because Stir bothered to ask, especially if they are at all uncertain about whether a judge would later approve their procedures.
Case Example 3: Coop Loren is arrested for drug dealing and is put in a lineup of five similar-looking men. Coop, however, is the only one asked to utter the words "Here's the stuff you wanted, man."
Question: What can Coop's lawyer do?
Answer: Coop's lawyer can first ask the police to make every lineup participant repeat the same words. If that request fails, Coop's lawyer can later prepare a pretrial motion (a "suppression motion") asking the judge to exclude the resulting identification on the grounds that asking only Coop to speak made the lineup unfairly suggestive. (More on suppression motions below, in Section V.)
回答1或者翻译2－3，均给分，答案回复可见。
1、根据本文，fishing expedition什么意思？
2、For example, a lawyer might overhear a witness tell a police officer, "I think it's Number Four, but I'm not really sure. It was pretty dark and the guy was wearing a hat." If the witness identifies No. 4 at trial, the defense can bring out the witness's lineup statement to undermine the witness's credibility.
3、To describe how they originally observed the perpetrator, that is, how far they were from the perpetrator at the time of the alleged crime, what the lighting was like and how certain they are that they would again recognize the perpetrator
以下为回复可见内容
1、非法调查。
2、例如，律师无意中听到证人告诉警官，“我认为是4号，不过我不是很确定。那天天很黑，那个家伙还戴个帽子。”如果证人在庭审时认出4号，辩护律师可以提出证人在列队指认时说的话以诋毁证人的信誉。
3、描述他们初次看到罪犯的情形，即作案时罪犯和他们的距离多远，周围照明如何，他们是否确信自己能够再次认出罪犯。
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posted on 2007-05-29 09:00
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