10-1292 U.S. v. West

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Sixth Amendment
In court ID by lineup witnesses

Where police conducted incustody lineup identifications while a defendant was unrepresented by counsel, and the district court ruled that the lineup was unduly suggestive but nonetheless held that lineup witnesses may be allowed to make incourt identifications, we reverse because the district court failed to make findings as to the admissibility of witnesses’ in-court identifications as required by United States v. Wade, 388 U.S. 218, 240 (1967).

“The government argues that the district court twice made Wade findings as to the admissibility of the incourt identification. We disagree. While the district judge twice made statements acknowledging that he would allow witnesses to make in-court identifications of West, he made no Wade finding. …

“These are the district judge’s only statements about the admissibility of the in-court identification of West. Neither statement recognized that the government bore the burden of proof on the issue, and by clear and convincing evidence. The district court never made a finding that the government had shown by clear and convincing evidence that a potential in-court identification would be based on observations of the suspect other than from the in-custody lineup, and at no time were the Wade factors addressed explicitly. There simply were no findings of fact by the district court as to the admissibility of the in-court identification.
“The government requested that both the magistrate judge and the district judge make a Wade finding, but the fact remains that neither did so. The government argues that the district court’s consideration of the Wade factors is implicit in its statements, but we disagree. The district judge’s statements seem merely to be agreeing with the magistrate judge that the lineup was not unduly suggestive under Neil v. Biggers, 409 U.S. 188 (1972), rather than making a finding that there was an independent basis for the in-court identification. That analysis is not sufficient to comply with Wade.”

We vacate the defendant’s convictions and remand to the district court for findings of fact under Wade as to the admissibility of in-court identifications.

10-1292 U.S. v. West

Eastern District of Wisconsin, Clevert, Jr., J., Hamilton, J.

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