One of the most suggestive forms of identification procedures is the in-court identification. With an in-court show-up, the witness is asked to look around and see if anyone in court looks like the person who victimized him. Before the show-up, the witness was probably informed that the prosecutor and police had enough evidence to arrest and charge the defendant, and may have been told of the defendant’s criminal history and congratulated for helping to take the defendant off the streets. Especially at a sparsely attended preliminary hearing or other pre-trial hearing, there is little mystery who the witness will pick: not the prosecutor he just met, or the police officer who has shepherded the witness through the process, or the man in the black robe, or even the stranger in a suit with the briefcase and legal pad at the defense table. The witness’s gaze inescapably fixes on the person sitting next to the defense attorney.

Requesting an alternative

There are alternatives to the in-court show-up, but a criminal defense attorney must ask the judge’s permission to use an alternative before the hearing starts. The trial judge has the discretion to order an alternative to the show-up. The options include:

• Excusing the defendant from appearing at the hearing.
• Seating the defendant in the audience and a decoy at counsel table during the eyewitness’s testimony. This works best if the decoy matches the description that the witness provided the police and you can fill the audience with others who resemble your client.
• Requesting that a line-up be conducted in court.
• The last option would be to cover the defendant’s face. Although this can be demeaning, it permits the witness to study the defendant’s carriage and dimensions.

The defense attorney may want to ask the prosecutor and police to agree to one of these procedures before asking the court. If they refuse, at trial the attorney can make it seem that they wanted to hide the truth by avoiding a fair, nonsuggestive identification procedure.

Alternative should be used at pre-trial hearing; not before jury

The alternative to an in-court show-up should be used at a pre-trial hearing before the judge when the jury is not present. The alternative should not be attempted before a jury. Any plausibility the argument of misidentification had will disappear if the witness picks the defendant out of the audience or in an in-court line-up arranged by the defense attorney. If there is no identification, the defendant and defense attorney have scored a tremendous victory. If the witness identifies the defendant, the defense attorney still might be able to explain away the identification at trial. Possibilities include: the police might have pointed out the defendant; or the witness might have been already prejudiced by an in-person or photographic show-up.