False Testimony – Ineffective Assistance of Counsel

Listen to this article

Criminal

7^th Circuit Court of Appeals

Officials: FLAUM, RIPPLE, and WILLIAMS, Circuit Judges

False Testimony – Ineffective Assistance of Counsel

No. 14-2779 USA v. Joseph B. Miller

Unreliability of identification does not preempt witness from making an identification. Counsel has ample opportunity to cross-examine.

“It is true that Hoffman’s in-court identification also lacks certain indicia of reliability. While Hoffman—who was standing at the teller counter during the bank robbery—had an unobstructed view of the robber at close range, the record suggests that she did not realize a robbery was being committed and that she likely paid little attention to the robber’s appearance. Further, although Hoffman appears to have displayed some certainty with respect to her in-court identification, at the time she viewed the photo array, she expressed doubt as to her ability to identify the robber. Yet we have acknowledged that in-court identifications are often “much less reliable than fair line-ups and photo arrays” but have nevertheless concluded that “[t]his does not necessarily mean … that a witness should not be allowed to take the stand and make such an identification.” Johnson, 92 F.3d at 597. Suppression of an identification is an extreme and often inappropriate remedy; rather, where defense counsel has “more than adequate opportunity to cross examine [the witness] and to make clear to the jury that [the witness] was unable to pick [the defendant] out of the photo array,” due process will generally be deemed satisfied. Id. Here, Tavitas thoroughly cross-examined Hoffman in an attempt to attack the reliability of her identification. He pointed out that she had only a brief opportunity to observe the robber, and further noted that she had failed to pick Miller out of a photo array shortly after the robbery. This exchange provided the jury with sufficient information with which to evaluate the reliability of Hoffman’s identification. We therefore conclude that Tavitas’s decision not to object to that identification did not fall below an objective standard of reasonable attorney performance.”

Affirmed

Full Text

Attorney Derek A. Hawkins is the managing attorney at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.