U.S. v. Williams

• Decision Date: 14 April 2008
• Docket Number: No. 06-3620.,06-3620.
• Citation: 522 F.3d 809
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Corey L. WILLIAMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

522 F.3d 809

UNITED STATES of America, Plaintiff-Appellee, v. Corey L. WILLIAMS, Defendant-Appellant.

No. 06-3620.

United States Court of Appeals, Seventh Circuit.

Argued September 5, 2007.

Decided April 14, 2008.

Linda L. Mullen (argued), Office of the United States Attorney, Rock Island, IL, for Plaintiff-Appellee.

Robert A. Alvarado (argued), Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, and WOOD and EVANS, Circuit Judges.

EASTERBROOK, Chief Judge.

Corey Williams pleaded guilty to armed robbery, 18 U.S.C. § 1951, and possessing a firearm during a crime of violence, 18 U.S.C. § 924(c)(1). He has been sentenced to 290 months' imprisonment. His conditional plea, see Fed.R.Crim.P. 11(a)(2), reserved the right to challenge the district court's ruling that the testimony of eyewitnesses would be admissible at trial. Powerful evidence connected Williams to the robbery independent of any eyewitness, so it is not clear that he had much to gain by his motion to suppress the identifications, but as there was no error we need not decide whether it would have been harmless.

Four eyewitnesses to the crime viewed a lineup that contained six persons of roughly the same height (from five feet six inches to five feet nine inches), facial hair, build, and skin color as one of the two robbers who had been described to police immediately after the crime. The six were dressed in identical prison garb. The officer conducting the lineup told the witnesses not to assume that one of the participants was a suspect, and not to assume that the officer knew the suspect's identity (if a suspect was present). Three of the witnesses identified Williams as a robber. (The fourth did not identify anyone.) The officer obtained statements from each witness about their degree of confidence (which ran from 99.9% for the most confident witness to "five or six out of ten" for the least).

The basis of the motion to suppress the identification and prevent the witnesses from identifying Williams in court is that, while five of the six participants in the lineup wore navy blue slippers, the sixth wore white tennis shoes. The person wearing the tennis shoes was Williams. This made him stand out, counsel contended, and increased the chance that he would be identified as the robber—especially because the eyewitnesses had described one robber as wearing white tennis shoes. Having just one participant wear white tennis shoes made the lineup unduly suggestive, Williams insisted. But the district judge concluded that nothing in the record implied that shoes, as opposed to facial characteristics and build (and, for one witness, the suspect's voice), played a role in the identifications.

Williams's only argument on appeal is that the white tennis shoes made the lineup unduly suggestive. If this is so, Williams still loses, because suggestiveness is only part of the legal standard. Eyewitnesses should be prevented from identifying a suspect in court only if the pretrial procedure "was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Simmons said this about a photographic procedure; the same standard was applied to showups and lineups by Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), and Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). (Neil said that the "irreparable" part of the inquiry applies only to testimony, so an identification made at the lineup itself could in principle be excluded even when the witness is allowed to identify the defendant at trial, but Williams makes nothing of this.)

Misidentification is "irreparable" when the source of the error is so elusive that it cannot be demonstrated to a jury, which therefore will give excessive weight to the eyewitness testimony. Williams has never tried to show that the effect of white tennis shoes is something that operates subconsciously, so that witnesses will be unshakeable in their errors, or that jurors would be unable to understand what happened and react appropriately. Unless the misidentification is irreparable, there is no basis for blocking the testimony. Perceptual biases and errors are endemic to identification. See Elizabeth F. Loftus, Eyewitness Testimony (1979); Daniel L. Schacter, The Seven Sins of Memory 88-137 (2001). The normal way of dealing with them is to expose the problem at trial so that a discount may be applied to the testimony, rather than to exclude relevant evidence.

All questions about "irreparability" to one side, was this lineup unduly suggestive in the first place? That depends on how clothes affect identification. Will giving one participant an article of clothing that matches the description of the offender lead a witness astray? Williams's lawyer says yes; when asked why at oral argument, counsel replied "Common sense." The prosecutor says no; when asked why at oral argument, counsel replied "Common sense."

If there is one thing known about eyewitness identification, it is that "common sense" misleads more often than it helps. See United States v. Brown, 471 F.3d 802 (7th Cir.2006) (discussing some of the evidence). See also, e.g., Gary L. Wells & D.M. Murray, What can psychology say about the Neil v. Biggers criteria for judging eyewitness identification accuracy?, 68 J. Applied Psych. 347 (1983); Timothy P. O'Toole & Giovanna Shay, Manson v. Brathwaite Revisited: Towards a New Rule of Decision for Due Process Challenges to Eyewitness Identification Procedures, 41 Val. U.L.Rev. 109 (2006). The problem with "common sense" is that experience tells us what leads to confidence about whether we have seen a given person before but does not provide reliable ways to test whether that confidence is justified. People confuse certitude with accuracy and so are led astray. Psychologists have established that certitude often is unwarranted. It takes data rather than intuition to answer questions such as "can non-uniform footgear in a lineup...