Coke Machines, Willie Nelson Lookalikes, and the Failure of Manson v. Brathwaite

The following, from a real court decision:

Barnett testified that Mrs. Hayden told him the intruder was short and stocky, approximately 5'4 to 5'6 in height, that he had long hair, and that he was in his middle 20's. At trial, Mrs. Hayden testified that she told Barnett that the intruder was between 5' and 5'4 tall, that he had red hair, and that he had a red bandana tied around his head. Later in the day, after defendant had been apprehended, Deputy Barnett called Mrs. Hayden, told her he thought they had caught the person who had broken into her home, and asked her to come to the courthouse to see if she could identify the suspect. She went to the courthouse where she viewed a lineup. The lineup, which was reminiscent of a scene from the television show Saturday Night Live, consisted of the defendant, who bore a resemblance to a diminutive look-alike of country singer Willie Nelson, red bandana and all, five other men, the shortest of whom was 5'11 tall, and a red Coca-Cola machine. Defendant was the only person in the lineup who had red hair and who was wearing a red bandana as a headband. At the motion to suppress hearing, Mrs. Hayden was asked if defendant was the only person in the lineup with red hair. Her reply was, "I didn't notice the other ones because when I saw him, I knew it was him."

In case you missed it, or tend to skip over block-quoted text, the police in State v. Kiplinger (591 S.W.2d 207 (Mo.App. S.D. 1979)) used a Coke machine as a filler in a lineup, presumably to minimize the extent to which a red-headed suspect -- wearing a red bandana -- stood out from other members of the lineup. Further to that end, the police included five other men 5'11" or taller, to draw attention away from the 5'4" miniature Willie Nelson lookalike.

But the most astonishing thing about this case is not the lineup itself, nor is it the egregious police negligence, incompetence, and general disregard for the rights of the accused. The most astonishing thing about this case is the fact that the appellate court held that the lineup did not run afoul of due process.

This case is a stark illustration of the failure of the Manson v. Brathwaite due process standard for the admissibility of eyewitness identification evidence. The Supreme Court in Manson told us that "reliability is the linchpin" in the admissibility analysis for eyewitness evidence, which on its face doesn't sound all bad. When there is a suggestive procedure, courts should look to other "indicia of reliability" -- the classic factors, including the witness's opportunity to view the perpetrator, the accuracy of the prior description, and (science notwithstanding) the confidence of the witness.

But the Manson court didn't stop there. The Supreme Court held that against those "indicia of reliability" should be weighed "the corrupting effect of the suggestive identification itself." Which is to say, the presence of suggestive procedures was not intended to be relegated only to the first prong of the analysis, as a threshold requirement to be met prior to engaging in a reliability analysis. Rather, the corrupting effect of the suggestive procedure itself was intended to be carried over into the second step of the analysis, for a determination as to whether or not the "indicia of reliability" outweigh that effect. In a case like the one quoted above, at best it should be impossible to extract any indication of independent reliability from a procedure so corrupting, such that the corrupting effect should easily be found to win the day.

But instead, that court -- and nearly all courts since -- managed to omit a fundamental step of the analysis set forth in Manson, namely that the corrupting effect of the procedure itself should be considered in determining the overall reliability of the identification evidence. The unfortunate reality is that Manson has been interpreted to mean, in direct contradiction to the clear language of the decision, that if the circumstances surrounding the original viewing of the perpetrator are found to be sufficiently reliable, even the most egregiously suggestive procedure will be excused and overlooked.

The result is that courts allow eyewitness evidence in front of juries from procedures that they themselves liken to a Saturday Night Live skit. I'm not sure that the Comedy is the right literary vehicle for the story of wrongful conviction.

(Thanks to occasional fellow-blogger Zeke for digging up this case.)