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United States v. Greene, No. 11-4683

Decided: January 3, 2013

The issue in this appeal involved the in-court identification of a defendant charged with armed bank robbery and brandishing a firearm during and in relation to a crime of violence.  During the defendant’s trial, the prosecution put on the witness stand a bank teller who had been present during the robbery.  The bank teller had not been able to make an out-of-court identification of the perpetrator, likely because the witness had only a limited opportunity to view the robber, who was had been wearing a makeshift disguise.  In addition, the trial took place seventeen months after the robbery, and during that time, the teller was “not once asked to view a lineup or photo array or assist a police artist in drawing a sketch.”  During the government’s direct examination, the prosecutor asked the witness to look at the accused sitting at the defense table and describe any similarities between him and the robber she had seen.  The defendant was ultimately convicted by a jury on both criminal offenses.

On appeal, the Fourth Circuit considered whether it was plain error for the trial court to have admitted this witness’s testimony.  The court applied a two-step test established by the Supreme Court to determine the admissibility of identification testimony:  “First the court must consider whether the identification procedure is unnecessary suggestive.  Second, if the procedure was unnecessarily suggestive, a court must look at several factors to determine if the identification testimony is nevertheless reliable under the circumstances.”  After a lengthy analysis of the first prong of the test, the court concluded that the identification testimony was unnecessarily suggestive.  According to the court, the prosecutor’s action in asking the witness if the defendant sitting in the courtroom reminded her of the robber was designed to put undue pressure on the witness and was thus unreliable.  In addition, the impermissible procedure utilized to elicit the testimony was not overcome by other indicia of reliability in the identification.  Applying the so-called Biggers factors (from Neil v. Biggers, 409 U.S. 188 (1972)), the court stated that other circumstances, such as the witness having had only a hurried view of the disguised armed robber, demonstrated a lack of reliability.  Thus, the court held it was error for the trial court to admit this in-court identification.

Nonetheless, because the defendant had not objected at trial to the witness’s testimony, the Fourth Circuit reviewed the lower court’s error under the plain error doctrine.  The court stated that the error was plain, in that it is “well-settled that a prosecutor cannot verbally or physically point to a defendant and ask a witness if the defendant is the person who committed the crime.”  However, the Fourth Circuit then stated that the plain error did not affect the defendant’s substantial right to a fair trial.  According to the court, there was “strong independent evidence” indicated that the defendant had committed the robbery.  The bank teller’s testimony, while damaging to the defendant, had not been an essential part of the prosecutor’s case against the defendant.  Thus, the court refused to reverse the defendant’s convictions on the basis of plain error.

Full Opinion

-John C. Bruton, III