People v. Perdue


Issue before the Court: Whether a first-time, in-court identification is permissible.

Factual Background: Someone was shot in the leg at a 2017 house party. A neighbor, who had not
seen the shooting, called 911 to report the shooting and described the perpetrator as a skinny, darkskinned
Black man wearing a white baseball hat, gray pants, and white sneakers. The 911 caller told
police she could identify this man, if necessary, but was never asked to do so. At trial, the 911 caller
identified Thomas Perdue as the shooter. Defense counsel sought to preclude this first-time, in-court
identification, but the court denied the request, pointing to defense counsel’s opportunity to crossexamine
the witness about the basis for her identification.

Held: If the prosecution anticipates calling a witness who “may” make a first-time, in-court
identification, it must give the defense notice “as early as practicable.” The defense then may request
“alternative identification procedures” designed to reduce the suggestiveness of the first-time, in-court
identification (e.g., having the defendant sit elsewhere in the courtroom) or to test its reliability (e.g., an
adjournment for an out-of-court ID procedure), which the trial court has its ordinary evidentiary
gatekeeping discretion to permit or not.

Here, because Mr. Perdue’s attorney allegedly had been aware of the possibility of a first-time, in-court
ID (through the officer’s body cam footage of his interview with the witness) and only sought
preclusion with the witness on the stand, the trial court didn’t abuse its discretion to deny that remedy
because there was other evidence tending to show it would be reliable, such as her detailed description
of the shooter at the time of the incident. The court also noted the other evidence linking Mr. Perdue
to the crime, which Rivera contextualizes in dissent.

Judge Rivera, per usual, dissents with analysis many times longer than the opinion itself. She would
adopt a rule that requires an out-of-court identification procedure prior to a first-time, in-court ID
where identification is at issue and the witness and defendant are strangers to each other (i.e., no
Rodriguez problem). She takes this rule from the thoughtful opinions from all the states surrounding
New York, which are also worth a read if you ever have this issue in your case. This rule would put
the burden on the prosecution—where it belongs—to show that a first-time, in-court ID is not
suggestive (because it is a show-up ID by another name), rather than majority’s rule, which places the
burden on the defense to intuit the possibility of a first-time, in-court ID, thereby rewarding bad
conduct by the prosecution.

CAL Observes: Beware the ides of March, and a criminal appeal reversal written by Judge Singas!
The rule is now better than it was, which previously permitted first-time, in-court identifications
virtually without limit. However, the upshot of this decision is that the prosecution still has enormous
leeway to disclose the possibility of a first-time, in-court identification (we just learned about it!); the
trial court will then have enormous leeway to fashion a remedy or decide none is necessary; and the
appellate court will have enormous leeway to mine the trial record for facts that suggest defense
counsel already knew about the possible ID where there is an inexcusably late disclosure by the
prosecution. The Court justifies this rigamarole with the fiction that defense counsel might prefer to
cross-examine a witness about their ID rather than have it precluded in the first instance.

That said, there is some good language to use in ID cases, regardless of whether this issue is preserved.
The court reiterated its concerns about “the real danger of wrongful convictions” based on mistaken
identifications and explained all the ways that a first-time, in-court identification is incredibly
suggestive. Rivera’s dissent includes the receipts. While leaving open the possibility that a good crossexamination
may suffice, it presents a hurdle to relying on that alone, without further analysis.