Garner v. Colorado

Brief Filed: 5/17
Court: Colorado Supreme Court
Year of Decision: 2019

Read full-text amicus briefopens in new window (PDF, 172KB)

Whether the state court of appeals erred in affirming the trial court’s admission of the in-court identifications of the defendant.

Eyewitness Identification Research

All three eyewitnesses failed to identify Garner from photo arrays at the time of the shooting, and in fact gave highly inconsistent descriptions of the perpetrator. Moreover, their in-court identifications occurred more than three years after the offense. Yet all three testified that they were highly confident in their assessment.

The APA’s amicus brief builds on earlier amicus briefs regarding the scientific research regarding reliability of eyewitness testimony. An in-court identification is very similar to a show-up identification, which establishes that identifications where there are no alternative suspects are inherently suggestive, and more than twice as likely to yield false identifications. Additionally, an in-court identification involves a witness who knows that the defendant is the only suspect, and a person the police and prosecutors are confident is guilty. The trial setting also creates heightened pressure to confirm guilt, and is associated with false confidence. And trials often occur years after the crime (as here), which is likewise associated with inaccurate identification.

On March 28, 2019, by a 4-3 vote, the Colorado Supreme Court rejected the defendant’s challenge to the in-court identifications made against him. The majority concluded that a trial judge need not screen the reliability of an in-court identification unless (1) it follows a pretrial identification procedure that is impermissibly suggestive (and that is arranged by law-enforcement) or (2) there is something suggestive about the in-court identification beyond the fact that it is an in-court identification. The majority relied heavily on the U.S. Supreme Court’s Perry decision, even though that case was about whether state involvement in the suggestiveness of an identification was a prerequisite for a due-process challenge.