CAAF will hear oral argument in the Army case of United States v. Criswell, No. 18-0091/AR (CAAFlog case page), on Thursday, September 13, 2018, at 11 a.m., at the Fordham University School of Law in New York. A single granted issue challenges the military judge’s ruling that allowed the alleged victim to make an in-court identification of the appellant as her assailant:

Whether the military judge abused his discretion in denying a defense motion to suppress the accusing witness’s in-court identification of Appellant.

A general court-martial composed of a military judge alone convicted Specialist (E-4) Criswell, contrary to his pleas of not guilty, of one specification of making a false official statement, two specifications of abusive sexual contact, one specification of assault consummated by battery, and one specification of indecent language in violation of Articles 107, 120, 128, and 134, UCMJ. Criswell was sentenced to confinement for two years, reduction to E-1, and a dishonorable discharge.

Criswell’s convictions relate to an allegation by Specialist (SPC) AM that she was sexually touched and harassed by a man during a party at a convention center at Austin Peay State University in Clarksville, TN. SPC AM is a white female; her assailant was a black man. SPC AM did not know her assailant, but she described him to another soldier shortly after the alleged touching, and the other soldier said, “I probably know who this is.” App. Br. at 5 (quoting record). That led to the identification of Criswell as possibly being the assailant.

The following day SPC AM reported her allegation to military authorities, who showed her a picture of Criswell. SPC AM then said that Criswell was her assailant. But that out-of-court identification was not admited into evidence. Instead, SPC AM identified Criswell as her assailant during trial:

The trial counsel asked SPC AM whether she recognized her assailant in the ccourtroom. (JA 75). Specialist AM pointed to SPC Criswell and said, “I recognize his facial features. I recognize, like, the—it’s weird—like, the shape of his head. I recognize the size of his body. I am able to recognize, compared to when he was close to me.” (JA 76).

App. Br. at 12.

Criswell moved to suppress the identification at trial and again challenged it on appeal before the Army CCA. The military judge allowed the in-court identification and the Army court affirmed that decision. CAAF will now determine if those decisions were right.

Case Links:
• ACCA decision
• Appellant’s brief
• Appellee’s (Army Gov’t App. Div.) brief
• Appellant’s reply brief
• Law student amicus in support of appellant
• Law student amicus in support of the appellee (Gov’t Div.)
• Blog post: Argument preview

One Response to “Argument Preview: Reviewing an in-court, cross-racial identification in United States v. Criswell”

  1. AnnoyingProle says:

    I’m probably about as much of a government hack as you can have–but can we all agree that in-court identifications are bullsh** and inherently suggestive?  And that we should stop them entirely, because whatever value they offer as “dramatic presentation” is outweighed by how facially ludicrous they are?
    “Can you identify the accused?” 
    “I’m pretty sure he’s the guy sitting between the Defense counsel.”
    “Are you sure?”
    “Yes, the man that raped me definitely had a legal team like that.”