United States v. Williams
522 F.3d 809
7th Cir.
2008
Check Treatment
Docket

*1 (7th Cir.1985). Thomas, 774 F.2d do the same here.

Accordingly, we

III. CONCLUSION judgments

The but the Affirmed, solely

cases are Remanded for the district above-specified

court to correct the clerical judgments.

errors in the America,

UNITED STATES

Plaintiff-Appellee,

Corey WILLIAMS, L. Defendant-

Appellant.

No. 06-3620. Appeals,

United States Court of

Seventh Circuit.

Argued Sept. 2007. April

Decided 2008.

810 suppress of the motion to the (argued), L. Mullen Office of the The basis

Linda Island, IL, Attorney, Rock prevent United States identification and the witnesses Plaintiff-Appellee. that, for in court is identifying from Williams in the participants while five of the six (argued), A. Alvarado Office of Robert lineup navy slippers, wore blue the sixth Defender, Peoria, IL, the Federal Public person wore white tennis shoes. The Defendant-Appellant. wearing the tennis shoes was Williams. EASTERBROOK, Judge, Before Chief out, This made him stand counsel contend- EVANS, Judges. and and Circuit WOOD ed, that he would and increased the chance especially be identified as the be- robber — EASTERBROOK, Judge. Chief eyewitnesses the cause had described Corey armed pleaded guilty Williams to wearing tennis shoes. robber as white 1951, § robbery, possessing 18 U.S.C. and Having just wear white violence, during a crime of 18 a firearm lineup unduly sug- tennis shoes made the 924(c)(1). § He has been sen- U.S.C. gestive, But the district Williams insisted. imprisonment. tenced to 290 months’ His judge nothing concluded that in the record plea, conditional see Fed.R.Crim.P. shoes, implied opposed as to facial 11(a)(2), right challenge reserved the (and, characteristics and build for one wit- ruling the district court’s that the testimo- ness, voice), suspect’s played the a role in ny eyewitnesses at of would be admissible the identifications. trial. Powerful evidence connected robbery independent to the of Williams only argument on appeal Williams’s any eyewitness, so is not clear that he is that the white tennis shoes made the gain by sup- much to his motion to had so, unduly If lineup suggestive. this is identifications, there press but as was loses, suggestiveness still because Williams no error we need not decide whether it only part legal Eyewit of the standard. would have been harmless. prevented identify should be from nesses eyewitnesses Four to the a crime viewed suspect only a if ing pretrial court lineup persons rough- contained six of procedure impermissibly sugges “was so (from ly height five the same feet six give very tive as to rise to substantial inches), hair, inches to five feet nine facial irreparable likelihood of misidentification.” build, and skin color as one of the two States, Simmons v. United 377, 390 U.S. police robbers who had been described to (1968). 967, 88 S.Ct. 19 L.Ed.2d 1247 immediately after the crime. The six were Simmons said this about a photographic prison garb. dressed identical The offi- procedure; applied the same standard was conducting lineup cer told the wit- Biggers, Neil v. showups lineups by not to assume that one the par- nesses 188, 198, 409 U.S. 93 S.Ct. 34 L.Ed.2d ticipants suspect, was a and not to assume Brathwaite, (1972), and Manson v. 401 432 suspect’s identity that the officer knew the 98, 114, U.S. 97 S.Ct. 53 L.Ed.2d 140 (if present). was suspect Three of the (1977). (Neil “irreparable” said that the witnesses identified Williams as a robber. only part inquiry applies of the to testimo (The identify anyone.) fourth did not The ny, so an identification made at the officer each obtained statements from wit- in principle itself could be excluded even degree ness about their of confidence (which identify when the witness is allowed to ran from 99.9% for the most confi- trial, defendant at but makes dent witness to “five or six out of ten” for Williams this.) least). nothing of

811 “irreparable” lenges Eyewitness Misidentification is Proce- Identification dures, (2006). of the error is so elusive when the source Val. U.L.Rev. The jury, that it cannot be demonstrated to a problem with “common is that sense” ex- give weight therefore will excessive which what perience tells us leads to confidence *3 eyewitness testimony. Williams has to the about given whether we have seen a per- never tried to show that the effect of white son before but does provide not reliable that something operates tennis shoes is ways to test whether that confidence is subconsciously, so that witnesses will be justified. People confuse certitude with errors, jurors in that unshakeable their or accuracy astray. Psycholo- and so are led hap would be unable to understand what gists have established that certitude often pened appropriately. and react Unless the unwarranted. It is takes data rather than no irreparable, misidentification is there is intuition to questions answer such as “can testimony. the blocking Percep basis for non-uniform in footgear lead to tual and to biases errors endemic iden misidentification?” Loftus, F. Eye tification. See Elizabeth parties We directed the to post- file (1979); Testimony L. witness Daniel argument memoranda addressing the so- Schacter, The Memory Seven Sins 88- of cial-science literature. The United States (2001). way dealing The normal of 137 helpful memorandum; filed a Williams’s expose problem them is to the at trial with counsel nothing informed us that he had to may applied so that a discount to the be add and thus surrendered the opportunity testimony, rather than to exclude relevant provide any empirical support for his evidence. Perhaps submissions. there is none to be questions “irreparability” All about by had. The studies collected the United side, lineup unduly was suggestive this optimal States discuss identification proce- in place? depends the first That on how (our opinion dures in Broim discusses clothes affect identification. giving Will work) some of this but do not address the an clothing article of question at in hand: do differences the description matches the of the offender by clothes worn in participants lineups astray? lawyer lead a witness Williams’s lead to false identifications? says yes; why when asked at argu- oral ment, counsel we do learn from replied “Common sense.” What the studies no; The prosecutor says why police when asked is that the in prudently telling acted argument, at oral counsel replied “Com- the lineup may witnesses that have mon all, sense.” suspect contained no at and that the conducting may ignorant officer be of If thing eye- there is one known about suspect’s identity. steps Those reduce identification, witness it is that “common chance witnesses will choose sense” misleads more often than it helps. though they someone even don’t remember Brown, See United States v. 471 F.3d 802 face, may his or follow cues from the offi (7th Cir.2006) (discussing some of evi- rely entirely cer rather than on their mem dence). also, e.g., Gary See L. &Wells Wells, Gary Eyewitness ories. See L. Murray, say D.M. can psychology What Procedures: Recommenda Biggers judg- about the Neil v. criteria Identification for 22 Lineups Photospreads, tions L. ing eyewitness accuracy?, for identification (1998); & Human Behavior 627-29 (1983); Applied Psych. Timothy 68 J. 347 Nancy Steblay, M. Social Shay, P. O’Toole & Giovanna v. Manson Influence Eyewitness Meta-Analytic Brathwaite Revisited: Recall: A Re Towards New 21 Lineup Effects, Rule Decision Due Process Chal- view Instruction L. of (1997). say This is not at all to that counsel & Human Behavior 284-85 present experts, of confi- must or even social-sci- Obtaining immediate estimates evidence, every the chance of error. ence case. Instead dence also reduced greater judges confidence should take account of these mat- People profess often fact; thinking about the issue and realign after the their memories ters when statements, juries. informing their earlier so that trial testi- See United States (7th Cir.1999) Hall, mony may reflect more confidence than is 165 F.3d 1118-20 Contemporaneous (concurring opinion). right warranted. estimates Often the dis- Wells, position reduce that risk. See will be evident with or without the of confidence Procedures, lawyers’ But Eyewitness aid of social science. when Identification only thing presented con- talk to the L. & Human Behavior at 630. These *4 ruling, rarely it support judge clusions the district court’s was here —there will be —as outcome, overturning a and the lack of evidence about the effects basis for clothing any way goes. judge leaves without whichever it The district Williams err, way ruling. to undermine that did not so the conviction and sentence thing more is worth mention. One AFFIRMED. per- Three witnesses identified the same lineup, although they son at the viewed the EVANS, Judge, concurring. Circuit no lineup separately and there was risk join Judge I opinion Chief Easterbrook’s that influ- person’s one identification would abundantly it is clear this case because ence the others. The fourth did not identi- Judge that Mihm was correct when he fy anyone and could not have been led lineup unduly sug- found that the was not astray by the tennis shoes. Counsel have gestive. get Because Williams can’t appeal only if it briefed this as involved base, get beyond first he can’t that and witness, but the number of identifica- lineup that the a establish created substan- supplies tions valuable information. Even tial likelihood that a misidentification any if that the risk one identification would would occur. substantial, be mistaken is the risk multiple make the I separately simply witnesses would same write to note that majority view, error is smaller. v. opinion gives, my See Newsome a (7th Cir.2003). McCabe, 319 I rap F.3d 301 bad to “common sense.” don’t think (such- How much a prosecutor smaller? Does cue as Williams’ counsel or the were shoes) that points they white to one out of line when answered “common witnesses, (of course, indepen- affect all or are errors sense” what’s common sense to else!) dent? If the individual-witness error rate one can be nonsensical someone 0.3, Assume, people during argument. is the risk that three will make oral for exam- power, ple, the same mistake is third 0.3 that a bank is robbed and several 0.027, if independent. report wearing or the errors are tellers that the robber was they? “Girdwood, green Are None of the briefs mentions a sweatshirt with Alas- question, prosecutor’s supple- this and the ka” on the front. Assume further that a filing day mental does not address it. or two later tellers lineup When viewed a men, multiple roughly height, witnesses make the same identifi- with six all the same cation, robber, likely weight, it is essential to know how and race of the but given wearing green is that a misidentiflcation will recur. was with sweatshirt too, That, subject “Girdwood, empirical inqui- is Alaska” on the front. Com- ry. mon sense tells me that the would unduly suggestive. Scientific studies be make that point.

would not be needed to

Here, shoes, in white tennis while Williams navy slippers, rath-

the others wore blue way long away

er trivial —his shoes are a Girdwood, Alaska, green

from the sweat-

shirt. sense tells me Common

shoes Williams wore did not make his line-

up unduly suggestive. AG, Plaintiff-Appellee,

BASF CO., AMERICAN

GREAT ASSURANCE *5 Co.,

Federal Insurance Westches Co.,

ter Fire Insurance Defendants-

Appellants. 06-3962, 06-3938, 06-3978,

Nos. 06-

4156, 06-4244 and 06-4257. Appeals,

United States Court

Seventh Circuit.

Argued 2007. Nov. April

Decided 2008.