Opinion Analysis: Admission of an in-court identification is (barely) affirmed by applying a highly-deferential standard of review, in United States v. Criswell
CAAF decided the Army case of United States v. Criswell, 78 M.J. 136, No. 18-0091/AR (CAAFlog case page) (link to slip op.), on November 16, 2018. The court granted review to determine whether the military judge erred by allowing the alleged victim to identify Criswell as her assailant during her testimony, even though she did not know him before the alleged assault and she was shown a picture of him (and only him) before trial in a way that was found to be unnecessarily suggestive. CAAF narrowly affirms the military judge ruling and Criswell’s convictions, with the majority applying a highly-deferential standard of review that focuses on Criswell’s appellate-stage objections to the military judge’s ruling. The dissenters, however, conduct a broader review, find numerous flaws in the military judge’s ruling, and would reverse the findings and authorize a rehearing.
Judge Maggs writes for the court, joined by Chief Judge Stucky and Judge Ryan. Judge Ohlson dissents, joined by Judge Sparks.
CAAF granted review of a single issue:
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. 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 verbally harassed and sexually touched on two separate occasions during a large party at a convention center. SPC AM is a white female; her assailant was a black man. The lighting was poor during both encounters and SPC AM did not know her assailant, but she saw his face well enough to provide a general description to another soldier at the party and based on that description the other soldier suspected Criswell. Military criminal investigators showed SPC AM a single picture of Criswell the next day, and she identified him at that time as her assailant “immediately and without hesitation.” Slip op. at 7 (quoting military judge’s findings of fact). Testifying in court, SPC AM again identified Criswell as her assailant. The military judge did not allow the prosecution to introduce SPC AM’s out-of-court identification of Criswell, but he allowed the in-court identification over a defense objection that challenged it as the unreliable product of the actions of the military investigators.
Considering those facts, all of CAAF’s judge’s agree that eyewitness identifications can lead to injustice. Judge Maggs observes for the majority that “eyewitness identifications are problematic in any criminal justice system.” Slip op. at 2. Judge Ohlson observes for the dissenters that “mistaken eyewitness identifications are responsible for more wrongful convictions than all other causes combined.” Diss. op. at 11 (quoting United States v. Brownlee, 454 F.3d 131, 142 (3d Cir. 2006)). But CAAF splits over how to review the eyewitness identification allowed in this case. While the ordinary standard of review for rulings admitting evidence is abuse of discretion – where findings of fact are reviewed for clear error and conclusions of law are reviewed de novo – the majority narrows that approach, with Judge Maggs explaining:
Applying this standard in this case, we do not undertake a de novo analysis of whether the in-court identification should have been admitted. Instead, we focus on Appellant’s objections to the military judge’s findings of fact, view of the law, and conclusions in applying the law to the facts.
Slip op. at 7 (emphasis added). The majority then addresses the challenges raised in Criswell’s “brief and reply brief,” slip op.at 8, and during oral argument, slip op. at 8-9 (citing oral argument recording). See also slip op. at 11 (excusing the military judge’s failure to specifically address a factor because “Appellant does not contend, either in his briefs or his oral argument[,] that the military judge misunderstood this aspect [of the law]”). The dissenters, however, make no reference to Criswell’s briefs or to the oral argument while concluding that “the military judge committed three errors in this case.” Diss. op. at 4.