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Criminal Law Casebook
Franklin County Criminal Law Casebook
Reproduced with permission from:
David L. Strait
Franklin County Public Defender Office
Last updated 3/1/2016
-- Testimony of previous identification.
Evidence Rule 801(D) -- Statements that are not hearsay include "one of identification of a person soon after perceiving him, if the circumstances demonstrate the reliability of the prior identification."
State v. Hignite
, 12th Dist. Warren No. CA2015-07-063,
Trial court erred by granting appellee's motion in limine seeking to exclude photographic and video evidence of him attempting to rob another bank before successfully robbing a different bank where the identity of the robber of a third bank was a material issue at trial. The trial court also erred by granting appellee's motion in limine seeking to exclude a statement he made to police allegedly implicating himself in a bank robbery. A defendant's own out-of-court statements, offered against him at trial, are not hearsay.
Perry v. New Hampshire
(2012), 132 S.Ct. 716 – The suggestive circumstances under which an identification was obtained must have been created by law enforcement. In this case the witness simply asked for a description responded by pointing to her kitchen window and stating the suspect was standing in the parking lot next to a police officer. Without police action the court need not assess the reliability of the identification.
State v. Farrow
, 190 Ohio App. 3d 793,
– Telling victims the suspect’s photo was in the array rendered the identification procedure unduly suggestive. Resulting ID was unreliable, weighing victims’ slight ability to observe, lack of detail in descriptions provided, and passage of time.
State v. Williams
, 172 Ohio App. 3d 646,
-- At trial the victim testified he got a brief glimpse of a 5‘8" black man dressed in blue who fled in a blue Lexus. Motion to suppress identification should have been granted where the only person to testify was the arresting officer who had though the broadcast described a black Lexus driven by a tall black man. No weapon was recovered and the officer gave conflicting testimony concerning recovery of the stolen money. Because the case proceeded to trial, on review the court may consider all the evidence, but here that further reinforces the conclusion the procedure was suggestive and the identification unreliable.
State v. Bradley
, 181 Ohio App. 3d 40,
– Defendant was denied due process when the court refused to authorize funds for an expert on eyewitness ID. Case turned on ID by the victim who had been assaulted during the brief time needed to complete a robbery. There was little or no corroborating evidence. Trial court‘s mistaken reliance on a local rule was not harmless. Jury deadlocked twice during deliberations.
State v. Anderson
, 191 Ohio App. 3d 110,
– Witness initially made no identification, but after talking to an officer after testifying, contrary to the court’s instructions, he was recalled and made an ID. Reversed.
State v. White
, Montgomery App. No. 20324,
, ¶35-44 -- Police officer was erroneously allowed to testify concerning a prior out of court identification by a declarant who did not testify at trial.
Crawford v. Washington
(2004), 124 S.Ct. 1354 is not cited, but reinforces this conclusion.
State v. Gross
, 97 Ohio St. 3d 121,
, ¶24 -- A one on one show-up is inherently suggestive and has been widely condemned. Nonetheless, the results are admissible unless there is a substantial likelihood of irreparable misidentification. Also see
State v. Wilson
, 162 Ohio App. 3d 119,
State v. Ruby
, 149 Ohio App. 3d 541,
, ¶24 -- Prosecutor showed a witness a single photo of the defendant on the night before trial. This practice is highly suggestive and disapproved.
State v. Marshall
(2000), 136 Ohio App. 3d 742, 749-751 -- Although identification of the defendant when he is on trial is a suggestive identification procedure, it was an abuse of discretion to exclude such testimony where the witnesses had not previously been shown a photo of the accused, he was not wearing jail clothing, and their previous descriptions were not remarkably inaccurate. (State's appeal from motion in limine.)
State v. Miles
(1988), 55 Ohio App. 3d 210 -- Victim described the three men who robbed him as having beards and mustaches. He was shown two people at one jail matching that description, and a third person at a suburban jail also having a beard and mustache. He identified all three and was shown no one else. All three suspects were in custody on unrelated charges. Identifications were properly suppressed.
State v. Roper
, Hamilton App. No. C-020468,
-- Burglary conviction found to be against the manifest weight of the evidence when a tentative ID by a witness is balanced against employer's testimony as to the defendant's whereabouts at the time of the crime.
State v. Duncan
, 154 Ohio App. 3d 254,
, ¶ 51-59 -- Based on the officer's testimony, identification was tainted, but based on the recollection of the witness it was not. Court could rely on the witness.
State v. Sargent
, 169 Ohio App. 3d 679,
, ¶13 -- In was an abuse of discretion not to appoint an eyewitness identification expert when the case entirely rested on the testimony of the victim who was under the stress of having been robbed at gunpoint. However, there was no error in the denial of a motion to suppress identification.
United States v. Wade
(1967), 388 U.S. 218 -- A lineup, following the filing of charges, is a critical stage of proceedings at which the accused has the right to counsel. Also see
State v. Tingler
(1972), 31 Ohio St. 2d 100.
United States v. Ash
(1973), 413 U.S. 300 -- There is no right to have counsel present at a pretrial photo ID where the defendant is not present and has not asserted a right to be present.
State v. Mays
(1995), 104 Ohio App. 3d 241, 248 -- "Showing a suspect to eyewitnesses shortly after an offense has been committed is of great value in capturing the recollection of the witnesses while events are fresh in their minds. Even though a police officer does not have probable cause to arrest a suspect, it may be reasonable to transport the suspect to the scene for further investigation if the initial stop occurs not far from the scene, so that transportation to the scene may be accomplished without intruding greatly upon the suspect's liberty interests." Also see
State v. Wilson
(1996), 117 Ohio App. 3d 290, 295.
State v. Martin
(1998), 127 Ohio App. 3d 272 -- Victim's identification testimony was properly suppressed where he may not have seen the robber's face, provided only a clothing description, overheard police radio broadcasts concerning tracking the suspect, was never told that the person in custody might not be the robber, and appeared to be susceptible to suggestion by authority figures.
Manson v. Braithwaite
(1977), 432 U.S. 98 -- Reliability is the linchpin in determining the admissibility of identification testimony. The determination is to be made based on the totality of the circumstances. The factors to be weighed against the corrupting effect of the suggestive procedure are as set forth in
Neil v. Biggers
(1972), 409 U.S. 188: (1) The opportunity of the witness to view the criminal at the time of the crime. (2) The witness' degree of attention. (3) The accuracy of his prior description of the criminal. (4) The level or certainty demonstrated at the confrontation. (5) The time between the crime and confrontation. Also see
State v. Lathan
(1972), 30 Ohio St. 2d 92;
Stovall v. Denno
(1967), 388 U.S. 293;
Simmons v. United States
(1968), 390 U.S. 377.
Watkins v. Sowders
(1981), 449 U.S. 341 -- While a judicial determination of the admissibility of identification testimony, out of the presence of the jury, may be advisable, it is not constitutionally required in all cases. Compare
State v. Vallette
(May 27, 1980), Franklin Co. App. No. 79AP-840, unreported (1980 Opinions 1518, 1522) which holds pretrial identification issues are waived if no pretrial motion to suppress has been filed. See Crim. R. 12(B)(3) and 12(G).
State v. Davis
(1996), 76 Ohio St. 3d 105, 113 -- If additional facts develop during the trial which would have supported a motion to suppress identification, motion should be renewed.
State v. Levy
(November 16, 1978), Franklin Co. App. No. 78AP-347, unreported (1978 Opinions 3192, 3197) -- State's burden is to show by clear and convincing evidence that identification was not tainted.
Preacher v. Estelle
(5th Cir. 1980), 626 F. 2d 1222, 1223 -- Evaluation of claim that an identification was improperly obtained is a two step process: "...we inquire first whether the identification procedure was impermissibly suggestive, and, if that be found, we must then determine whether there was a substantial likelihood of misidentification. It is upon this dual finding that the claim of denial of due process rests."
State v. Wills
(1997), 120 Ohio App. 3d 320 -- At 325: "Suggestiveness depends on several factors, including the size of the array, its manner of presentation, and its contents." (2) One time characterization of photos in array as headshots or mugshots did not create an impermissible inference that the defendant had engaged in criminal activity. Identifying information had been blacked out.
State v. Pearson
(1996), 114 Ohio App. 3d 168, 184 -- At the time of the offense, the victim only saw her assailant's eyes. A hooded sweatshirt and bandanna concealed the rest of his face. Court properly excluded out of court ID made at the time of an earlier hearing after the victim had seen the defendant being escorted through the courthouse, in jail clothing, and restrained by handcuffs and leg irons. Related cases:
State v. Pearson
(1996), 114 Ohio App. 3d 153;
State v. Pearson
(1997), 119 Ohio App. 3d 745;
State v. Pearson
(1998), 130 Ohio App. 3d 577.
Babers v. Estelle
(5th Cir. 1980), 616 F. 2d 178, 180 -- Even if a pretrial identification procedure is improper, a witness may make an in court identification if there is an independent basis demonstrated for the identification and no substantial likelihood of misidentification. Also see
State v. Moody
(1978), 55 Ohio St. 2d 64, 67;
State v. Barker
(1978), 53 Ohio St. 2d 135, 142-143;
State v. Jackson
(1971), 26 Ohio St. 2d 74;
State v. Hurt
(1972), 30 Ohio St. 2d 86;
United States v. Crews
(1979), 445 U.S. 463 (photo had been obtained through a spurious arrest but witness had independent recollection).
State v. Merrill
(1984), 22 Ohio App. 3d 119, 122 -- "...(T)he in-court identification is admissible where the state shows by clear and convincing evidence that the in-court identification has its origin in observation independent from pretrial identification...The same factors which are used in testing the reliability of a pretrial identification are used in determining whether or not the in-court identification was of an independent origin."
State v. Kaiser
(1978), 56 Ohio St. 2d 29 -- Paragraph one of the syllabus: "Where a witness has already identified a suspect in circumstances which are not 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification,' a subsequent identification procedure which may be 'impermissibly suggestive' does not taint the original identification."
State v. Lancaster
(1971), 25 Ohio St. 2d 83 -- Paragraph five of the syllabus: "Prior identification of the accused may be shown by the testimony of the identifier, or by the testimony of a third person in whose presence the identification was made, where the identifier has testified and is available for cross-examination, not as original, independent or substantive proof of the identity of the accused as the guilty party, but as corroboration of the testimony of the identifying witness as to the identity of the accused." See
. Also see
State v. Chinn
(1999), 85 Ohio St. 3d 548, 561-562 reaching the same conclusion through application of Evid. R. 801(D).
State v. Reaves
(1998), 130 Ohio App. 3d 776, 782-784 -- Witness identified defendant as one of the assailants when interviewed by the police shortly after the homicide, but said otherwise at trial. First statement was properly admitted for the truth of the matter asserted pursuant to Evid. R. 801(D)(1)(c) as it went to identification and was made under circumstances indicating reliability. Confrontation was satisfied by the ability to cross examine the declarant at trial.
State v. Breedlove
(1971), 26 Ohio St. 2d 178 -- Under
evidence of a prior out-of-court identification of the defendant by a photographic selection is admissible at trial only if the photographs do not provide the finder of facts with the inference that the defendant has had prior criminal involvement. Reversal despite some attempts to correct error through striking testimony and instructing jury to disregard what they had heard. Also see
State v. Yarbrough
(1998), 129 Ohio App. 3d 437 where the I.D. slate appeared on defendant's photo and officer testified he suspected defendant because of prior contacts. Compare
State v. Wilkinson
(1971), 26 Ohio St. 2d 185 where the police identification numbers had been cut from the bottom of the photos.
In re Howard
(1987), 31 Ohio App. 3d 1, 5 -- While a lineup is inherently suspect, as a witness may infer a suspect is among the group, it is not impermissibly so, provided the police do not lead the witness to choose one subject over the others. Also see
State v. Stamper
(1986), 33 Ohio App. 3d 104. (Same point made as to photo arrays.)
State v. Naylor
(1980), 70 Ohio App. 2d 233 -- Headnote: "Where the defendant is required to repeat, over objection, words and sentences used during the progress of a crime by one of the perpetrators of that criminal act, and where the defendant is required to speak those words and sentences in the presence of the jury for the express purpose of allowing the victim of the crime to arrive at an in-court identification of the speaker, such a requirement is violative of the defendant's rights under both the Fifth and Fourteenth Amendments to the United States Constitution."
State v. Buell
(1986), 22 Ohio St. 3d 124 -- Syllabus: "(1) The expert testimony of an experimental psychologist concerning the variables or factors which may impair the accuracy of a typical eyewitness identification is admissible under Evid R. 702. (2) The expert testimony of an experimental psychologist regarding the credibility of the testimony of a particular witness is inadmissible under Evid. R. 702, absent a showing that the witness suffers from a mental or physical impairment which would affect the witness' ability to observe or recall events." Compare
State v. Sims
(1981), 3 Ohio App. 3d 321, 324-326.
State v. Echols
(1998), 128 Ohio App. 3d 677 -- (1) At 696-700: It was an abuse of discretion not to allow an expert on eyewitness identification to testify where the only substantial evidence linking the defendant to the crimes was identification testimony. (2) At 701-704: No denial of Sixth Amendment right to counsel where pretrial lineup was conducted without counsel. Charges appeared not to have been filed in relation to the witnesses attending the lineup. (3) At 703: Outburst by victim at lineup deemed not to have tainted ID's by others present.
State v. Guster
(1981), 66 Ohio St. 2d 266 -- The decision whether or not the facts of a case require instruction on eyewitness identification is entrusted to judicial discretion. Also see 4 OJI 405.20.5;
United States v. Telfaire
(1972), 469 F. 2d 552;
State v. Dale
(1983), 3 Ohio App. 3d 431;
State v. Coffman
(1984), 16 Ohio App. 3d 200;
State v. Caldwell
(1984), 19 Ohio App. 3d 104.
State v. Perryman
(1976), 49 Ohio St. 2d 14 -- Paragraph two of the syllabus: "Convictions based on eyewitness identification at trial, following a pre-trial identification by photograph, will be set aside only if the photographic identification procedure is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification."
United States v. Thoreen
(9th Cir. 1981), 653 F. 2d 1332 -- Without informing the court or the U.S. attorney, defense counsel had a ringer sit next to him at counsel table while the defendant sat behind the bar. Government witnesses identified the ringer instead of the defendant. Trial court found the attorney in contempt and the court of appeals concluded finding was not clearly erroneous.
State v. Hill
(1987), 37 Ohio App. 3d 10 -- (1) Headnote 3: "Allowing defendants to sit in various locations in a courtroom for identification purposes is discretionary with the trial court." (2) Court not troubled by fact defendant's photo was larger than others in array.
United States v. Gates
(6th Cir 1982), 690 F. 2d 1117 -- Bank robber lost a sandal fleeing. At lineup, tracking dog sniffed sandal, then put head in defendant's lap. Conviction affirmed.
State v. Dick
(1971), 27 Ohio St. 2d 162 -- Impermissibly suggestive procedure where before listening to voice for purposes of identification the witness had been asked to appear at the police station to make an identification of the suspect.
State v. Williams
(1983), 4 Ohio St. 3d 53 -- Spectrographic voice analysis is admissible on a case by case basis within the sound discretion of the court.
State v. Vrona
(1988), 47 Ohio App. 3d 145 -- Headnote 3: "Testimony as to a telephone call is admissible where there is a reasonable showing, through testimony or other evidence, that the witness placed or received a call, plus some indication of the identity of the person spoken to. (Evid. R. 901[B], construed.)"
State v. Williams
(1979), 64 Ohio App. 2d 271 -- Headnote 1: "In a criminal case the mere statement of a person calling a victim on the telephone identifying himself as the defendant is insufficient evidence to establish the caller's identity as the defendant. However, direct and circumstantial evidence which reasonably identified the defendant as a party to such telephone conversation establishes a sufficient foundation to admit evidence of the conversation in a criminal case."
State v. Keith
(1997), 70 Ohio St. 3d 514, 522-523 -- Homicide victim gave witness a name he partially remembered, leading to a "name lineup" whereby a police office gave a list of names including the defendant and another possible suspects. Standards for reviewing suggestiveness and reliability of photo ID's applied.
State v. Chinn
(1999), 85 Ohio St. 3d 548, 560-562 -- Legal secretary reported to the police that the subject of sketch published in paper had appeared in the office. Testimony in this regard was irrelevant and unfairly prejudicial.
State v. Deleon
(1999), 131 Ohio App. 3d 632 -- Informant told the police that defendant had admitted the offense. Based on this tip, a photo array was prepared, and identifications were made by eyewitnesses. State was erroneously ordered to disclose identity of the informant, as it did not intend to call that person as a witness, nothing in the record suggested the informant witnessed or participated in the offense, and the defense otherwise failed to show how the informant might be useful.
David L. Strait
Copyright © Franklin County Public Defender and David L. Strait, 2015
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