The Law on In-Court Identification in Oklahoma
Unnecessarily Suggestive
When is an in-court identification at a preliminary hearing unnecessarily suggestive? I’m Tulsa Attorney James Wirth that is a topic that we have today. Deals with an issue if you’re a criminal defense attorney handling felony cases, you’ve got preliminary hearings, and it’s not too unusual to have an identification at a preliminary hearing.
So the state puts a witness on the stand, and then you’ve got, you know, potentially your in-custody client with the handcuffs and the orange jumpsuit, and they point out, it’s the guy at the defendant’s table, that’s the guy that did it. When is that an appropriate thing or inappropriate thing to do? From a defense perspective, you would suggest that that is unnecessarily suggestive. The only option they have is the one person that is sitting at the defense table. They already have the orange jumpsuit on, they already have the handcuffs on.
I mean, even if that weren’t the person, think about the pressure that the state is putting on the witness to identify that person, the person that they have filed charges against, arrested, brought to court, and sat there. What if they’re not sure that it’s that person? Are they really gonna feel that they are free to say, oh, I don’t know if that’s him or not, or that’s definitely not him? Probably not. They’re under a huge amount of pressure to follow through with what the state is expecting them to do, based on what the state has already done in dragging them in there.
Factors to Consider for Unnecessarily Suggestive In-Court Identification
So under the law, though, when is it unnecessarily suggestive? Well, I’ve got an old case going back. It’s a Turner v. State 1990 OKCR 79, and it notes that under those circumstances where the defendant is sitting there with the handcuffs in the orange jumpsuit, that it can be unnecessarily suggestive. But we’ve got this new case that was just decided June 22nd, 2023, where the defendant was making that argument. They actually filed a motion in limine to be heard by the judge directly prior to the preliminary hearing, requesting that there be no identification done during the preliminary hearing, because it’s unnecessarily suggestive, meaning there’s no way to do it properly at a preliminary hearing with it being reliable. It’s going to be unnecessarily suggestive, because that’s the only choice that they have.
But in this case, the witness previous to the crime was an acquaintance of, or acquainted with, the alleged defendant. So they’re saying because of that prior relationship, that adds additional reliability in determining that that was the person. So they’re saying that it was allowable in this case, and they’re not going to overturn the conviction based on it in this case. But the court does list out some factors to consider when determining whether it’s unnecessarily suggestive to do an in-court identification. And it notes the prior opportunity of the witness to observe the defendant during the alleged crime. So how well were they able to witness the person? The degree of attention of the witness, the accuracy of the witness’s prior identification, the witness’s level of certainty, and the time between the crime and the confrontation. Also in this case, the court found that there was a prior identification that was done on a panel.
Strategy Session
So there may be some debate on that, but if you’re a defense attorney or you’re a defendant going through this, certainly you want to make an issue of identifications in court if they’re under those circumstances. Argue that they are unnecessarily suggestive, and find a better way to do it so that there’s actually some reliability. Because obviously nobody wants there to be these false convictions and unwarranted convictions.
So if you’re dealing with the circumstances, you got a question about criminal defense in the state of Oklahoma, you’re gonna want to talk to an attorney about that privately and confidentially. To get that schedule with a criminal defense lawyer in Oklahoma at my office, you can go online to makelaweasy.com.
