Excluding Evidence of Identification
Criminal Attorney William Moore explains that prohibiting identification evidence from being admitted by the State Attorney’s Office can destroy any chance of prosecution. Fort Lauderdale criminal attorneys must constantly be aware of any factual issue that might open this door and potentially change the entire outcome of the Fort Lauderdale State Attorney’s Office case.
Fort Lauderdale County Criminal Attorney- Excluding Identification Evidence Can Destroy the Prosecutions Case
Fort Lauderdale County criminal attorneys must know that failure to afford the defendant the right to counsel under the Wade-Gilbert rule, or n identification which violates Due Process, results in the exclusion of the pretrial identification. Thus a witness testifying at trial may not refer to any identification made pretrial. The witness, however, may be permitted to make an in-court identification from the witness stand if the in-court identification is not contaminated by Lie improper pretrial identification—that is, it is not the fruit of the poisonous tree. In order to utilize an in-court identification, the government must prove by clear and convincing evidence that the in-court identification has an origin independent of any improper pretrial identification. Application of this standard by qualified Fort Lauderdale criminal attorneys
requires consideration of various factors; for example, the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant’s actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification.
Palm Beach criminal attorneys must remember that if the trial court is not satisfied that the in-court identification originated independently of the out-of-court identification, the in-court identification is tainted evidence (“the fruit of the poisonous tree”) and is not admissible. This requires an appropriate motion by and through the defendant’s Fort Lauderdale criminal attorney.
In-court identifications are usually made by asking witnesses if they see the robber, rapist, murderer, and so forth in the courtroom, at which point the witness may point to the defendant sitting at the defense table. There is no right which would allow a Fort Lauderdale criminal attorney to test a witness’s identification of the defendant by conducting an in-court lineup. Fort Lauderdale trial judges, however, have permitted either formal lineups or more subtle tactics of permitting several people to sit at the defense table so that witnesses cannot assume that the only persons at the table are the defense counsel and the defendant. On the other hand, a Fort Lauderdale court recently refused to allow the accused’s twin brother to sit in the courtroom, although the accused was free to call his twin brother or any other person to show mis-identification by a witness.
If you have questions about how the law regulating the admissibility of evidence may impact your case, call the criminal attorneys at William Moore today. Offices in Fort Lauderdale.