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United States v. Simoy - 998 F.2d 751 (9th Cir. 1993)

Rule:

The factors relevant to the analysis of whether a witness' in-court identification, under the totality of the circumstances, was reliable even though the confrontation procedure was suggestive are: (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 the witness' prior description of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation.

Facts:

Defendant was convicted of felony murder, in violation of 18 U.S.C.S. § 1111, and robbery, in violation of 18 U.S.C.S. § 2111, based in part on the in-court identification of defendant by a witness who had seen him for a few seconds in the dark and had initially stated that he could only see a silhouette. By the next day, the witness was able to provide a description for a police sketch. He also provided a license plate number of a vehicle, which was registered to defendant's brother. A FBI agent produced a photo of defendant, and the witness said it closely resembled the man he had seen. The witness then identified defendant from a different photograph in a lineup. The district court held that the witness' in-court identification was admissible because it was reliable despite the impermissibly suggestive identification procedure. Defendant appealed.

Issue:

Was the witness’ in-court identification admissible despite the impermissibly suggestive identification procedure?

Answer:

Yes.

Conclusion:

The appellate court affirmed defendant’s conviction, finding that under the totality of the circumstances, the identification was reliable and that defendant was not entitled to a lesser-included offense jury instruction. According to the court, if the jury found that defendant participated in the robbery, it could not rationally acquit him of felony murder and convict him of second-degree murder.

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