Motion for an Evans Pretrial Lineup
In Evans v. Superior Court (1974) 11 Cal.3d 617, two men robbed James Liddle's restaurant. Responding police officers apprehended two men who fit Liddle's description. The men were put into the back of a patrol car and driven to the restaurant where, within 15 minutes of the robbery, Liddle identified them as having the same physical build as the robbers. However, the two men never got out of the patrol car and Liddle "viewed them only through the back window, observing only the backs of their heads and shoulders." (Id. at p. 620.)
At the preliminary hearing, Liddle identified one of the two men, Evans, as having been one of the robbers. Evans thereafter moved for a pretrial lineup, which the trial court denied because it believed it lacked the power to compel the People to conduct a lineup.
Evans held that, in these circumstances, the defendant was entitled to a pretrial lineup:
"Petitioner seeks to compel the People to exercise a duty to discover material evidence which does not now, in effect, exist. Should petitioner be denied his right of discovery the net effect would be the same as if existing evidence were intentionally suppressed. It is settled that the intentional suppression of material evidence denies a defendant a fair trial. We conclude in view of the foregoing that due process requires in an appropriate case that an accused, upon timely request therefor, be afforded a pretrial lineup in which witnesses to the alleged criminal conduct can participate. The right to a lineup arises, however, only when eyewitness identification is shown to be a material issue and there exists a reasonable likelihood of a mistaken identification which a lineup would tend to resolve. The questions whether eyewitness identification is a material issue and whether fundamental fairness requires a lineup in a particular case are inquiries which necessarily rest for determination within the broad discretion of the magistrate or trial judge. We do not hold, accordingly, that in every case where there has not been a pretrial lineup the accused may, on demand, compel the People to arrange for one. Rather, as in all due process determinations, the resolution here to be made is one which must be arrived at after consideration not only of the benefits to be derived by the accused and the reasonableness of his request but also after considering the burden to be imposed on the prosecution, the police, the court and the witnesses." (Evans v. Superior Court, supra, 11 Cal.3d at p. 625.)
When the trial court denied Herring's Evans motion, it ruled as follows:
"Well, in the court's mind, it is a very close call because it's a very serious case -- but the issue really is not the severity of the charges but whether or not there is a reasonable likelihood of mistaken identification which a lineup would tend to address. You have the named victim identifying the defendant; although not, as defense counsel pointed out, not a very clear or strong identification. But it does say . . . , 'That looks like him,' according to the police report. But there is corroboration to that identification, which is the paperwork that is found, a variety of different pieces of mail in the defendant's name, and the court took note of the fact that the address, the city of the mail is San Bernardino, which is the location where this vehicle was stopped and recovered by San Bernardino Police with Mr. Pollard being the driver. The Court feels that there is, taken sic the totality of the evidence, is sufficient corroboration. The lineup motion is going to be denied."