Totality of Circumstances Evidence Admissibility - Example Case in California
In People v. Kennedy (2005) 36 Cal.4th 595, , a woman parked in a car outside the restroom at a highway rest stop heard a gunshot, then saw a man come out of the restroom and walk towards her. The man came to within 5 to 10 feet of her as he got into a car parked near hers. The witness was parked under the light, and she maintained eye contact with the man for 30 to 60 seconds. After he drove away, she saw another man stagger out of the men's restroom and collapse. The woman's first description to the police made no mention of the suspect's prominent beard, and she could not identify him from the first picture she was shown because she could not see the suspect's eyes. She then made a certain identification of him when she was shown a videotape of his arrest, even though she admitted that she didn't know how she missed seeing the beard. (People v. Kennedy, supra, at pp. 602-603, 610-611.)
In that case, a witness to a murder at a rest stop described the perpetrator to police and attempted to aid in preparing a composite sketch of the man. (Id. at p. 603.)
She said the perpetrator had no facial hair. (Ibid.) When an arrest was made, the witness saw a newspaper photograph of the arrestee, the defendant, and expressed her concern to police because of the defendant's eyes and beard. (Id. at p. 605.)
A detective showed her a picture of the defendant without a shirt, which revealed his tattoos of a swastika, a gun, and the name of his gang. The witness could not identify the defendant because his eyes were downcast in the picture. When shown a videotape of the arrest, however, the witness saw the defendant's eyes as he looked up and said: "'Oh, my God, that's him, and I don't know how I missed that beard.'" The witness later positively identified the defendant at trial. (Ibid.)
The trial court found the identification procedure was not unduly suggestive, and cited Neil v. Biggers (1972) 409 U.S. 188 in support of its decision.
The Kennedy court determined that the identification evidence "was admissible as reliable under the totality of circumstances, taking into account such factors as those the high court identified in Neil v. Biggers, supra, 409 U.S. at page 199." (Kennedy, supra, 36 Cal.4th at p. 610.)
The court applied the factors, quoted, ante, in this opinion, and found that the fact that the witness had inaccurately described the suspect to police and did not recognize him in the newspaper photograph was outweighed by her proximity to the perpetrator, the fact she had looked at him for 30 to 60 seconds, the passing of only three weeks between the crime and the identification, and the certainty of her later identifications upon seeing the video and in court. (Id. at pp. 610-611.)