For more information on arrest procedures and false identification, call (603) 686-5454 to schedule a complimentary consultation with New Hampshire criminal defense lawyer Sven Wiberg.
Due Process Protection In Identification Procedures
In order for the state to legally have witnesses or identify the perpetrator of a crime, the identification procedure must not violate due process guaranteed under both the state and federal the constitution. A knowledgeable New Hampshire criminal defense lawyer will make sure that the identification process is not unnecessarily suggestive and does not create a substantial risk of misidentification.
The Due Process Protection Standard
There are several requirements that must be met for an identification to meet the requirements of due process protection.
First, the standard requires the New Hampshire criminal defense lawyer needs to show that the procedure was suggestive and that there was justification for the police to use a less suggestive identification procedure.
Conducive to Mistaken Identification
Second, the New Hampshire criminal defense lawyer will need to show that the procedure was conducive to mistaken identification or that it gave rise to a substantial likelihood of misidentification. If the lawyer can successfully meet both prongs of the test, the identification will not be admissible in court because it will have violated due process standards.
Second Chance For Admissibility
Federal law and New Hampshire state law allow for the prosecution to admit an identification that is otherwise inadmissible because of being unduly suggestive if it can prove that “under the totality of circumstances the identification was reliable even though the confrontation procedure was suggestive.”
In allowing the second chance, the court will need to weigh the corrupting effect of the unduly suggestive identification against the following factors:
- The amount of time between the crime and the confrontation
- The witness’s degree of attention
- The accuracy of the witness’s prior description of the person who committed the crime
- The degree of certainty portrayed at the confrontation
A good New Hampshire criminal lawyer should be familiar with these factors to provide sufficient evidence to persuade the court not to allow the identification.
For more information about the due process protection and identification procedures in a criminal matter, you should call (603) 686-5454 to schedule a complimentary consultation with New Hampshire criminal defense lawyer Sven Wiberg.
If you need advice on criminal defense, call (603) 686-5454 to schedule a complimentary consultation with New Hampshire criminal defense lawyer Sven Wiberg.
Brady Motion: Disclosing Favorable Evidence to the Defense
Identities and statements made by witnesses are usually very important in a successful defense preparation. Given the importance of such evidence, the due process clause of the Constitution requires the prosecution to disclose identities of witnesses and any pertinent statements made by the witness to the defense. In order to get this necessary information, your New Hampshire criminal defense lawyer will first need to make a motion for such evidence, referred to as a Brady motion. This motion derives from the dictates of the U.S. Supreme Court case Brady v. Maryland, 373 U.S. 83 (1963), which ruled that exculpatory or impeaching information and evidence that is material to the guilt or innocence or to the punishment of a defendant must be disclosed to the defense. Suppression by the prosecution of evidence favorable to a defendant who has asked for it violates due process.
Specific Theory of Defense
For a Brady motion to be approved, the New Hampshire criminal defense lawyer needs to articulate a specific theory of defense that is based on specific witnesses. This approach requires the attorney to know exactly what and whom he is looking for when making the motion to the court.
Production of Witnesses
Whether the New Hampshire criminal defense lawyer can force the prosecution to produce statements made by key witnesses prior to trial depends on the jurisdiction where the case is being tried. While certain jurisdictions obligate the prosecution to disclose witness statements during discovery, other jurisdictions do not allow it until the time of trial.
Regardless of which jurisdiction the case is being tried in, a New Hampshire criminal defense lawyer can request in both a discovery letter and a motion for the prosecution to preserve any notes or drafts of witness interviews, for example. Attorney Wiberg requests such material as soon as he takes on a case.
For more information about a Brady motion or disclosing favorable evidence to the defense, call (603) 686-5454 to schedule a complimentary consultation with New Hampshire criminal defense lawyer Sven Wiberg.
Our new website is finally up. We’ve worked hard to get a beautiful new site ready and we’re proud to show it off. Thanks for reading our blog. We have lots of great blog posts in the works. Please check back or contact us now to find out how we can help you.