Tagged: victims

I Am Sure That’s Him … I Think – Eye Witness Identification: Improper Showups

POST WRITTEN BY: Maria Dollas (’16), J.D. Pace Law School

Often, there are no witnesses to a crime other than the victim. Given the stress and state of the victim the question arises whether such conditions affect this lone witness’s ability to accurately recall the assailant. Things become more muddied when the police apprehend an assailant (not necessarily THE assailant who committed the crime in question) and the police proceed to do more than to merely present the alleged assailant to the victim.

In a 3-1 majority the Appellate Division Second Department recently held that the use of showup identification by police was unduly suggestive and that the victim’s identification testimony should have been suppressed. People v. James, ___ N.Y.S.3d ___ 2015 N.Y. Slip Op. 03864 (App. Div. 2d Dep’t May 6, 2015).

The discrepancy in the attributes of the person the victim described and the person actually caught were significant:  they varied in age, height, and attire. The victim described her assailant as about 20 years old, 6 feet tall, wearing a brown and white striped shirt. The person apprehended by police was 13 years older and 4 inches shorter. A striped shirt of a different color combination, in this case a red-and-blue striped shirt was found near a parked vehicle and not on his person. Nonetheless, the police presented the person apprehended in handcuffs to the victim. That alone might have signaled guilt. It was particularly suspicious since the person arrested was walking shirtless in the area.

Still, the victim was not able to identify her assailant. It was only when the police purposely placed the miscolored striped shirt across the defendant’s chest that that the victim conceded that he was her assailant. The victim did not request the shirt to be placed upon the apprehended individual. Initially, she could not and did not identify him. It was only after the police officer took active steps that the victim said he was the one.

There is no doubt that the crime was committed. There is however doubt as to the reasonableness of the police tactics in presenting the apprehended individual to the victim. Showups and other identification procedures are not to be so unduly suggestive as to violate due process. The primary evil to be avoided is a “very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384 (1968).

The law is not concerned with the number of witnesses but rather with the quality of the identification given. Even a slight deviation from permitting the victim to objectively determine whether the person presented to her as the assailant taints the process. The circumstances in this case are not free from coaxing the victim even so slightly as to whether the right shirt and therefore the right person is in custody.

Additionally, the identification here may have been a cross-racial one:  the assailant was described as a light skinned black male, the victim was only described as a 22 year old female and her skin color was not noted. Ordinary human experience indicates that some people have greater difficulty in identifying members of a different race than they do in identifying members of their own race. See Gary L. Wells & Elizabth A. Olson, The Other-Race Effect in Eyewitness Identification: What Do We Do About It?, 7 Psychol., Pub. Pol’y & L. 230 (2001).  Here, an already challenging identification may have been even more problematic by irresponsible police tactics.

The people’s burden is not only to prove beyond a reasonable doubt that a crime was committed but justice requires that the defendant is indeed the person who committed the crime. One person wrongly identified is one person too many whose liberty and life may be irrevocably altered because of the procedural missteps of others. Misidentification and its consequences can also happen to you and me.

Related Readings:

TrackMyCrime Keeps Crime Victims in UK Informed

The Telegraph, in London, reports that the UK Ministry  of Justice has launched TrackMyCrime, an online platform intended to allow victims easier access to information about police investigations of their cases. By logging on, victims can track the progress of a police investigation and send secure messages directly to officers working on their cases. In the future, the hope is that victims will be able to follow their cases through the courts as well, and ultimately, if there is a conviction, through an offender’s imprisonment and release.

Victims, the one group of people often overlooked yet the most affected by crime are getting a voice in the UK for now – and in a relatively efficient manner. Maybe other systems should take heed.  At the international level, the International Criminal Court and the various criminal tribunals and hybrid courts allow and support victims’ participation, but even there, the participation is limited to court proceedings.  In the United States, victims’ interests are said to be represented by the prosecutor’s office; however, they often are not a priority, particularly for a busy, urban prosecutors office. It appears that the United Kingdom has found a reasonable middle ground – allowing victims to be part of the investigation, to be informed about the progress of their cases, to have the ability to provide information, and, perhaps most importantly, to feel involved in the process.

Related Reading:

The International Criminal Court Achieves a Landmark

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

June 25, 2014 marked a significant date in the history of the International Criminal Court; the ICC Prosecutor and the Defense for Germain Katanga discontinued their appeals regarding Katanga’s March 7, 2014 conviction on most (but not all) of the charges against him and his twelve year sentence issued on May 23, 2014. The discontinuance of the appeals in this case means that the judgment and sentence against Katanga are now final. This is the first time such finality has been achieved in a case that the ICC Prosecutor pursued to conviction.

The ICC Prosecutor achieved a conviction on March 14, 2012 against Thomas Lubanga Dyilo, and Lubanga was sentenced on July 10, 2012. However, appeals in the Lubanga case are still pending. As noted in a previous post, Germaine Katanga was convicted on charges of war crimes and crimes against humanity relating to the situation in the Democratic Republic of the Congo.

In a statement released on June 26, 2014, ICC Prosecutor Fatou Bensouda said,

This first conviction with finality at the ICC is a clear signal to all those who might seek to perpetrate such crimes, putting them on notice that, sooner or later, justice will be served.

As the next step in the process, the ICC Trial Chamber with responsibility for the Katanga case will consider possible reparations to victims of the crimes for which Germain Katanga was convicted.

Human Trafficking – Articles of Interest – Learn More


Pace Criminal Justice Center hosted a program on Monday, January 28, 2013 that addressed the legal framework for human trafficking and social services and other needs of victims, as well as a horrific evaluation of the scope of the problem, internationally, nationally and locally. For more information on the subject, see the articles below.

Related Readings:
Compiled by Anthony DiPietro

Vacating Prostitution Convictions

People v. Gonzalez, Docket No.:93N022568 (NY County 2011) (vacating the defendant’s  prostitution convictions as a result of  the 2010 amendments to CPL 440.10 which allow for the vacating prostitution convictions where the defendant can show she was the victim of sex trafficking).

Kevin Deutsch, Woman Forced Into Sex Trade Has Prostitution Convictions Thrown Out Under New Sex-Trafficking Law, NY Daily News (Sept. 22, 2011).

Sex Workers ProjectVacating Criminal Convictions for Trafficked Persons.

News Articles on Human Trafficking

Louis P. Masur, How Many Slaves Work for You?, NY Times (Dec. 31, 2012).

Marjorie Elizabeth Wood, Christmas Ornaments, Child LaborNY Times (Dec. 24, 2012).

Mark McDonald, Buy, Sell, Adopt: Child Trafficking in ChinaNY Times (Dec. 26, 2012).

Don GoldenThe Fight Against Human Trafficking in the United States, Huffington Post Blog (Oct. 29, 2012).

Nicholas D. Kristof, Where Pimps Peddle Their GoodsNY Times (March 17, 2012).

Fran Berkman, Hofstra Study Shows Thousands of Human Trafficking Victims in N.Y., Long Island Report (Nov. 15, 2011).

Gidon Belmaker, New York City: Point of Entry for Human Trafficking in US, Epoch Times (March 23, 2011).

William Finnegan, The Counter-TraffickersThe New Yorker (May 5, 2008).

Nicholas D. Kristof, The 21st-Century Slave TradeNY Times (Apr. 22, 2007).

Julia C. Mead, A Slow War on Human TraffickingNY Times (May 28, 2006).

NY Office of Mental Health, New York State Response to Labor and Sex Trafficking: Human Trafficking: A Violation of Human Rights.

New York State’s Response to Labor & Human Trafficking, Human Trafficking, Response to Labor and Sex Trafficking Brochure .

Law Review Articles

Marisa Nack, The Next Step: The Future of New York State’s Human Trafficking Law, 18 J.L. & Pol’y 817 (2010). [available via HeinOnline]

Eileen Overbaugh, Human Trafficking: The Need for Federal Prosecution of Accused Traffickers, 39 Seton Hall L. Rev. 635 (2009). [available via HeinOnline]

Luz Estella Nagle, Selling Souls: The Effect of Globalization on Human Trafficking and Forced Servitude, 26 Wis. Int’l L.J. 131 (2008).

Jayashri Srikantiah, Perfect Victims and Real Survivors: The Iconic Victim in Domestic Human Trafficking Law, 87 B.U. L. Rev. 157 (2007). [available via HeinOnline]

Kathleen Kim, Psychological Coercion in the Context of Modern-Day Involuntary Labor: Revisiting United States v. Kozminski and Understanding Human Trafficking, 38 U. Tol. L. Rev. 941 (2007).  

Kevin Bales, et. al., Hidden Slaves Forced Labor in the United States, 23 Berkeley J. Int’l L. 47 (2005).