Challenging the Introduction of Improper Identification Evidence

There are a variety of ways in which a defendant may challenge the introduction of an improper identification. The defendant may:

• File a pretrial motion to suppress the identification evidence.


• File a pretrial motion to set aside or dismiss the indictment due to the improper identification evidence.


• Object to the admission of the improper identification evidence.


• File a motion to strike the admission of testimony or other evidence regarding the improper identification.


• Appeal from a conviction based upon the introduction of improper identification evidence.


• Collateral attack of a judgment of conviction.

Motion to Suppress the Evidence

A motion to suppress identification evidence is a proper method for challenging eyewitness identification evidence. The motion to suppress may be raised to secure a preliminary ruling on the issue. The motion may be heard at a preliminary hearing or other pretrial hearing. Some jurisdictions will permit an oral motion to suppress.

Timing

The defendant should attempt to raise any issues regarding the improper identification evidence as early as possible. The earlier that the defendant challenges the proceedings the more likely that the case against the defendant may be dismissed. Defense counsel may be assisted by the timing of the objection to the admission of improper identification evidence for negotiation purposes if the issue is raised in an early and proper fashion.

A failure to raise the issue of improper identification evidence does not waive the defendant’s right to raise his claim. Typically rulings on pretrial evidence motions have no res judicata effect. Further, rulings on pretrial common-law motions regarding the admissibility of evidence are not binding on the court or the parties involved in the action. Usually such rulings are not subject to appeal.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.