SUMMARY OF ARGUMENT

The Court should limit the availability of first time, in-court stranger identifications in light of four decades of robust, peer-reviewed scientific research, hundreds of wrongful convictions based on mistaken eyewitness identifications, and recent decisions of sister states. These in-court identifications violate due process because they are unnecessarily suggestive and present a grave risk of irreparable mistaken identification. They are also highly prejudicial while lacking probative value and tend to confuse the jury, making them precisely the type of evidence CRE 403 guards against.

Among first-time, in-court stranger identifications, those preceded by non- suggestive out-of-court procedures in which the witness was unable to identify the defendant present a special risk of wrongful conviction due to misidentification because the in-court identification will most likely be based only on the suggestive circumstances of the in-court procedure, not the witness’s memory. But all in-court identifications enhance the already significant risk of mistaken identification and can easily lead to wrongful conviction.

Amicus curiae the Innocence Project urges the Court to establish a new rule of law limiting the availability of in-court identifications to those cases where (i) identity is a contested issue, and (ii) the State can establish that the witness has identified the defendant in a prior, non-suggestive out-of-court procedure, and (iii) there is good reason for the in-court identification.

Summary

The Court should restrict the use of initial in-court identifications made by witnesses who did not know the defendant before the trial. This recommendation is based on 40 years of scientific studies, numerous cases of wrongful convictions due to incorrect eyewitness identification, and similar decisions made by courts in other states. These in-court identifications violate due process because they are highly suggestive and carry a significant risk of leading to a mistaken identification that cannot be corrected. Such identifications are also very harmful to the defendant's case, while not offering much useful evidence, and can confuse the jury. This type of evidence is exactly what Court Rule 403 aims to prevent.

First-time in-court identifications are especially risky when a witness previously failed to identify the defendant in a fair, unbiased out-of-court procedure. In such situations, the in-court identification is likely based on the suggestive nature of the court setting rather than the witness's actual memory. All in-court identifications, however, increase the already high chance of mistaken identification and can easily result in a wrongful conviction.

The Innocence Project, acting as a friend of the court, asks the Court to create a new rule. This rule would limit in-court identifications to situations where: (i) the defendant's identity is a disputed fact, and (ii) the prosecution can prove that the witness identified the defendant in an earlier, unbiased out-of-court procedure, and (iii) there is a valid reason for the in-court identification.

Summary

The Court should restrict the use of first-time in-court identifications of strangers. This stance is supported by extensive scientific research conducted over forty years, numerous cases of wrongful convictions due to incorrect eyewitness identifications, and recent rulings by courts in other states. These in-court identifications are considered a violation of due process because they are unnecessarily suggestive and pose a serious risk of irreversible mistaken identity. They are also highly biased, lack significant evidential value, and can mislead the jury, which is the type of evidence that Rule 403 of the Colorado Rules of Evidence aims to prevent.

First-time in-court identifications of strangers are particularly problematic when a witness failed to identify the defendant in a previous, non-suggestive out-of-court procedure. In such situations, an in-court identification is likely based on the suggestive nature of the court setting rather than the witness's actual memory, significantly increasing the risk of a wrongful conviction. All in-court identifications, however, heighten the already substantial risk of incorrect identification and can easily lead to wrongful convictions.

The Innocence Project, acting as amicus curiae, recommends that the Court implement a new legal rule limiting in-court identifications. Such identifications should only be permitted if identity is a disputed matter, the State can demonstrate that the witness previously identified the defendant in a non-suggestive out-of-court procedure, and there is a valid reason for the in-court identification.

Summary

Courts should restrict how often new, in-court identifications of strangers are allowed. This is based on forty years of strong scientific research, hundreds of wrongful convictions due to mistaken eyewitnesses, and recent rulings from other states. These in-court identifications go against fair legal process because they are too suggestive and carry a serious risk of irreversible mistaken identification. They are also very biased, offer little real proof, and can confuse juries, which is exactly what legal rules aim to prevent.

When a witness failed to identify a defendant in an earlier, fair identification process but then makes a first-time identification in court, there is a particular danger of wrongful conviction. This is because the in-court identification is likely based on the suggestive court setting rather than the witness's actual memory. All in-court identifications increase the significant risk of mistaken identification and can easily lead to wrongful convictions.

The Innocence Project, acting as a "friend of the court," suggests a new legal rule. This rule would limit in-court identifications to situations where: (i) the defendant's identity is disputed, and (ii) the prosecution can prove the witness previously identified the defendant in a fair, out-of-court procedure, and (iii) there is a good reason for the in-court identification.

Summary

Courts should not allow people to identify someone for the first time in court. This is because science has shown for 40 years that these identifications can be wrong. Many people have been wrongly jailed because someone made a mistake identifying them. Other states have also started to limit these types of identifications.

When someone identifies a stranger in court for the first time, it can be unfair. The way it happens in court might make them pick the wrong person. This makes it very likely that an innocent person could be wrongly identified. This kind of identification also makes it harder for the jury to understand what is true.

Sometimes, a witness tries to identify someone outside of court in a fair way, but they can't. If they then identify someone in court for the first time, it's very risky. This is because they are probably picking someone based on how it looks in court, not on their memory. All in-court identifications can make it more likely for someone to be wrongly identified and wrongly convicted.

The Innocence Project wants the court to create a new rule. This rule would only allow in-court identifications if:

• Who the person is matters to the case.

• The witness already identified the person outside of court in a fair way.

• There is a good reason to have the witness identify the person in court.