A New Journey

Dear readers,

You have probably noticed a lack of posts in the last few months. The reasons are many, but primarily  I was not sure what direction to take this blog or even to continue it at all.

I have been honest with all of you the last few years, trying to provide a glimpse into the life of a prosecutor. I pulled back the curtain and let you know the good and the bad. Now, you deserve to know that I have left my job as a prosecutor and am now a private attorney.

I will explain the reasons why, but first I want to provide a little background into my career and how it intersected with this blog. I was a prosecutor for eight and a half years in two very busy metropolitan areas in New York State. For the last three years, I was also a Special Assistant United States Attorney prosecuting gang crimes in both state and federal courts as part of a task force. These duties added to my regular job as a state prosecutor of violent crimes and violent juvenile crimes.

Writing was an outlet for me throughout my life, but I had stopped doing it for about ten years. I wanted to get back into it and share what was really happening in the criminal world. That started the idea for this blog. My boss (surprisingly) agreed to let me do it as long as I did not discuss pending cases and abstained from belittling anyone. The decision to keep it anonymous was mine alone to protect my ability to keep blogging. I felt that if I went public my boss would not like it if a reporter called me for a quote. I think writing became an outlet again for some of the horrible crimes I prosecuted.

My last major case as a prosecutor was the strangulation and sexual abuse of a thirteen year old boy by another thirteen year old boy (The case is still ongoing). This case highlights the difficulties in being a prosecutor and part of the reason I left. You see, the better you get at a job, the more responsibility you receive. For a prosecutor who specializes in violent crime, that means you get the worst defendants and facts.

Three years ago, I met a robbery victim. He was in his mid-twenties and had come into my office with his parents. The suspect, a serial robber, took his cell phone at gun point. The victim, like so many, did not want to cooperate. His parents came with him to support his decision.

I informed him that in a case like this his wishes did not matter. He could either testify or get an attorney when he received the subpoena so the attorney could explain his rights. In a case with one man causing so much havoc in the streets, we couldn't just leave what happens up to one victim who   decided not to cooperate without putting the case in the grand jury and forcing the witnesses to testify. A prosecutor protects society and does not have to cave to the wishes of a victim if the greater good requires a prosecution. The witness' father asked me if I liked my job. I spoke honestly. I have learned that you have to listen and be honest in order to relate. I told him it was a difficult job to do. No one ever looked forward to speaking with me. Every time a prosecutor like me contacted the victim it was to have the victim relive the worst moment of his or her life.

The father said, "That's bad. Time for a new job."

It registered with me and stuck in my subconscious the way you remember stories from your childhood that affect your life. At the time, it was just another conversation. But every now and then it would appear in my brain for no reason at all. The breaking point for me came when I was driving to work in May 2014 and heard the news report about a missing thirteen year old boy on the radio. When they found his body and made an arrest of another thirteen year old, I knew I would get the call as the violent crimes juvenile prosecutor. I met with the victim's family. Victim? He was a boy. I met with the boy's family the day before the felony hearing. I went with a good friend, the murder victim advocate. The family needed to meet us and hear the truth from us before they heard it in court the next day. There are some things you can't unknow, some things you can't unremember. I will never forget the murdered boy. I will never forget the conversation with his family about what happened to him. I will never forget the pictures of the boy's body.

This is not to say that there was only one case that caused me to look for other work. I had been toying with the thought for months. The inability to stay in one job forever might be a problem with my generation, or it might be a gift. There is so much else I wanted to do with the law outside of prosecution. Working for the government limits the opportunities because I was a public servant. I've always loved business and finance too. I have always wanted to start a business. I always wanted to write more. I thought, 'maybe I should try something before it's too late.'

I faced a crisis of what I wanted. I had accomplished so much in my career already - state and federal prosecutor, experienced trial attorney, experienced investigator. My greatest accomplishment was taking what started out as a a set of phone records and building that into an indictment of a four month long robbery spree by five teenagers that ended in the murder of a cab driver. I had worked so hard and so long on that case that I could still give the closing argument today. That case was part of the problem though. It is a tremendous accomplishment and that month long trial with over 60 witnesses might never get replicated in my county again. But I looked at what it took to obtain an accomplishment - someone had to die. In that case, we were scheduled to present the first set of robberies to a grand jury in March. The defendants, who had made bail, committed the murder nine days before we were set to indict them.

You can probably see that the cases take a toll on me. I am not the type of person who can leave it all at the office.

There are failures, but there are so many successes. I obtained convictions for numerous violent criminals, even in the face of adversity like a lack of cooperation from witnesses. Serial robbers, rapists, burglars, murderers, and would be shooters who carried guns were convicted. I am confident that I helped to save lives. I was successful because I cared so much. The successes aren't just convictions either. A large part of my caseload was dismissing cases that did not have enough evidence or where the police performed an illegal search. I hope I exonerated the innocent as much as I convicted the guilty. A professional prosecutor is the first guard against a wrongful conviction.

Another of the success at the time? I helped convict a 16 year old of murder in my first trial when I switched offices. Three witnesses identified him, including the murder victim's girlfriend. The girlfriend sat on the witness stand and yelled at the defendant, asking him why he killed her man. I wiped tears away, the judge wiped tears away, and jurors wiped tears away. The emotion in the courtroom hung like fog on everyone inside of it. After hours of deliberation, the jury convicted based on the eyewitness testimony.

As it turns out, the defendant was innocent. The case was truly a failure. The defendant was convicted even though the police, prosecutors, judge, and defense attorney did everything right. He is out now, but that still sits with me. A defense attorney never gave up on his client and we agreed to dismiss the case when the exoneration evidence came out almost four years later.

As the cases and memories piled up, I asked myself did I want to do this forever? Was there something else out there? I owed it to myself to look. I owed it to myself to make sure whatever decision I made was right for me and my family. There was a point where I was going to become a career prosecutor if I stayed much longer no matter if I wanted it or not.

I found a job that fit at the end of 2014 and started it in 2015. I am now a civil litigator, which is about as far as you can get from criminal prosecution. It was what I wanted. It was what I needed.

Prosecution has taught me values and ethics. It has shown me how to work hard and how to investigate before making a decision. I learned how to listen when everyone else wanted to talk at the person. I learned how to work with the poorest and dirtiest person and how to work with the wealthiest. It surrounded me with people that I love and will be friends with forever. It made me laugh every day. There was never a day I dreaded going to work because of the people I worked with. Making a decision to leave felt like ending a long-term relationship. Sometimes you know it is not working out anymore, but ending it meant you were breaking up with the family too.

The one hang-up, the one thing that almost caused me to stay was the thirteen year old victim. Even as I write this I am tearing up. Did I owe it to him to stay? To his family? I built up so much trust with them and had given that case everything. Should I see it through to trial even though there would be no way I could get through it without becoming an emotional wreak? Maybe I had become too attached, too invested in some of these cases. It was not every case, but there was always one or two that really meant more than just a name on a file. Before I made the decision to leave, I checked my ego. There were plenty of amazing prosecutors who would handle the case just as well, if not better, than me.

This blog's readers have made this so much fun. During the first few months of doing this, about eight people a month would read this blog. I don't know what happened, but over the last two years 10,000 people a month come to check it out. I think that's pretty decent for not doing any marketing. Apparently, people wanted to listen to what I had to say. I like to think it was because I was honest. I tried to help. I wasn't doing this because I had something to sell or was trying to get you to hire me. I wanted you to know what life was really like for a prosecutor.

I am still conflicted about what to do with this blog. I love doing it. I love the comments and the emails. So many of you reach out for help in your career or even on whether to go to law school. So many of you have written back to tell me about your success in getting DA jobs or even avoiding DA jobs because you realized it was not the right fit. I will continue the blog and now can be more open about criminal cases and DA life. To be honest, I have no idea what will happen with it over time. Maybe it will morph into something else. Maybe I will write more and tell you about it. Maybe I will not. Who knows? Public service is still a large part of what drives me. Maybe doing this will be part of that?

Thank you for reading. Thank you for commenting. Please come back as I open up on more stories about cases I've handled or issues that continue to come up. I would not trade my life as a DA for anything. At its core, it was about helping people. I am proud and honored to say I helped people who  needed it the most.

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ABA Top 100 Nominee!

For the first time since I started doing this, the American Bar Association has nominated the lowly staff of one over here at Prosecutor's Discretion for its annual inclusion in the top legal blogs (or blawgs).

I am very excited to be nominated and that means that someone reads all of this and appreciates its content. But it's not over. Voting is open for an even more exclusive club, to be a member of the top 100 Blawgs of the year. Please visit the site here and vote for your favorites, including Prosecutor's Discretion which is under the criminal justice section.

Voting ends soon so head over quickly and thank you for voting and reading!

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The Prosecutor's Decision

On Monday, I posted a hypothetical fact pattern based on different cases we see in my office. Check it out here.

This is a difficult case as it is laid out. There were many comments and emails from readers with good questions and suggestions on what type of evidence should be collected.

Let me put what the prosecutor looks at. If these are the only facts, we cannot prove the case beyond a reasonable doubt. The police have probable cause to arrest based on the witness statements, but it is not even clear the case would survive grand jury. With just these facts, the question arises of whether we should prosecute the case. Is this the case where innocent men might be convicted? If we choose not to go forward, how do we tell the victim?                                

Prosecutors receive cases like this every day. It's called an incomplete investigation. We are not investigators, but many time the prosecutors have to pick up where the police left off. Once police officers put the cuffs on, they move on to the next case.

One suggestion was to get the Facebook messages between the victim and boy she was talking too. That is the first thing I would do. Then, I would find out where the boy posted his messages from. A cell phone? We would obtain a search warrant for the cell phone to get the messages. Does the boy's Facebook page contain a video? Then, we can access his videos on his phone through the warrant too. Maybe these boys took a video of the incident which would show what happened.

If the victim reported the crime early on, we would obtain a search warrant for the house where it occurred to try and find evidence too.

Every investigation starts with obtaining some evidence and then any good prosecutor follows all the leads from that piece of evidence. One of my mantras is that every file has the potential to turn into numerous files. A gun case means we might be able to find out who sold the gun to the person. One robber probably did more in the area. If we get a cell phone of a rape, there is a good chance more exist on there.

It creates a never ending cycle.

Once we exhaust the possible evidence, we can make the decision. Again, if no other evidence existed but the victim's word this case would be difficult, if not impossible to prove. Those are the worst conversations with victims. They were robbed or raped and are certain we have the right person, but there is nothing to corroborate the identification. With what we know today about DNA and wrongful convictions, can I as a prosecutor justify the prosecution of that person? Does the victim deserve their day in court?

This is the cases we must decide every day. Prosecutorial discretion is a great power that we need to wield responsibly and still respect the rights of the victims. There are rarely easy choices in this line of work.

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The Police Officer's Conundrum

There is a difficult dance that we prosecutors perform with the police. One would think that we are on the same team and that it would be easy to get along with those on our team. I see officers on a daily basis and have become friendly with many of them outside of my employment. I have great respect for the job that they do.

But it is a different job than mine. A police officer must protect and serve the community. He/she has great discretion in how to conduct an investigation and whether to arrest a person, write a ticket, or come to an equitable resolution. The prosecutor's job is to do justice, and with that we are vested with prosecutorial discretion (more on how a case moves from arrest to prosecution here).

Years ago in my county, the police force and the district attorney's office had a conversation about the investigation of homicide cases. The DA's office was sick of not knowing about a murder arrest or investigation until it happened. The police department did not appreciate the speed it took us to investigate those cases. The police agreed to use the DA's office as a resource during the investigation and discuss the case with the homicide chief before making an arrest.

Over the decades that passed, this discussion has now morphed into a necessity prior to making an arrest in a homicide case. The DA's office now requires the detectives to seek clearance for the arrest before one is made. While technically not a legal requirement, it does make the relationship smoother and avoids the dangerous and embarrassing situation of the DA's office dismissing a homicide arrest.  The problem though? What about when the police believe they have a viable case, but the DA's office does not?

The police only require probable cause to arrest, while the DA's office will not prosecute cases that do not have a chance of conviction. These are not the same thing. Probable cause requires a police officer to have reliable information providing the input necessary to arrest. That reliable information does not always man it would be reliable or persuasive at trial though.

Take this set of facts: The victim picks up the witness in the victim's car. They agree to go buy drugs and meet the drug dealer at a location. The drug dealer gets in the rear seat, and then proceeds to rob the driver and passenger, accidentally shooting the driver to death. The drug dealer runs away and the witness is unharmed. 

If the witness can identify the rear seat killer with 100% certainty, the police will have probable cause to arrest him for felony murder (committing murder during the course of a felony, whether intended or not). But can this set of facts sustain a conviction? A one-witness identification from an admitted drug user? Rarely is there a quick arrest in a homicide case. The police need to investigate and gather evidence. What happens if this case never gets better though? There's no physical evidence at the scene, no phone records exist like a cigarette butt left?  It is solely the word of the witness and that is the only evidence that will ever exist.

Should the DA's office give it a shot? Does justice for the victim demand an arrest and prosecution? Does justice for the defendant and society prohibit it? The police have probable cause to arrest in this scenario. The DA's office will provide guidance and tell the officers what other pieces of investigation need to occur. What if we never consent to the arrest?

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Twists of Fate

ANDREW, THEODORAKIS/NEW YORK DAILY NEWS

Over 10 years ago, a police force rejected my application.  During law school, I turned down a different agency's offer to join their squad.  After seeing what the officers deal with on a daily basis - unending calls, no sleep, an abnormal schedule, the threat of violence in every encounter - I'm not sure how well I would have done.  I'm certain I was not mature enough to have that kind of responsibility in my early 20's.

Although, I would be halfway towards retiring...

But still, 12 NYPD officers survived gunshots (there were 9 total in the three years before that) in the course of their duty this year.  Here's hoping to a speedy recovery and that we all learn to keep our cool.  No one ever wins in a gunfight.

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Election Day to a Public Employee

Most New York State and County employees are given a gift the first Tuesday following the first Monday of every November (can you tell that law was written by lawyers?).  They are given a day to reflect on the year that has past and the full eight hours that they otherwise would be working can be spent doing anything they desire.

Yes, Election Day is my favorite work day of the year because, well, it's not a work day at all.  It's a random Tuesday off in November.  I understand why the day off began.  It stems from the days when all the government jobs were patronage jobs and all the government employees were given the day off to go work for the person who gave them the job - ferry voters back and forth, stand outside polling places, etc.

I'm not saying we should have the day off, only that I appreciate it.  Not even teachers get this day off.  

But tomorrow does not mean a holiday for me this year.  I'm involved in two large investigations which both have big days tomorrow.  So I will be at the office for a period of time fielding phone calls from law enforcement and helping them on the legal end.  I assure you, I will not be there the full day though.

I get many comments on the blog and emails concerned with prosecutors and the workings of government and the court system.  I post them all and respond to all the emails so long as they are in the realm of an honest discourse.  America is an amazing place because we all have the right to take an opinion and express it to anyone.  I hope all my readers take advantage of their right to vote and their ability to say the direction they want their country, state, and county headed tomorrow.  Don't like the judge?  In New York, most are elected so vote for the other one.  Same for the President on down to the Town Supervisor.  This is our chance to do something about whatever problems exist.

It is a partisan world, where everyone has instant access to a blog, twitter, or Facebook, and can voice their opinions on any topic immediately.  Are people becoming more entrenched in their opinions and more unwilling to compromise or do we just see more of it because of the proliferation of social media? I check my Facebook page and it reads like a roll of DNC and RNC talking points.  I'm all for the expression of political views, but hopefully we can move everyone past toeing the party line and towards making decisions based on the good of the citizens who voted them in office.  

So vote tomorrow.  I will after my half day of work.

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100 and Counting . . .

Let Rainn Wilson (who plays Dwight Schrute onThe Office) ring in the celebration.
100 POSTS!

Three huge achievements mark this celebration:  1) I'm still employed, 2) My boss has not instructed the removal of any posts, and 3) More people view the blog everyday.

100 posts and I've learned something - I've got a lot to say. 

There's a line in every summation where an attorney can cross over from sharp and engaging rhetoric to over-the-top boredom.  Usually, a five minute window separates the two.

Hopefully, I'm still providing insights into the criminal justice system and the life of an ADA.  I do worry that your eyes are glossing over sometimes, but the stats tell a different story.

With the advice and well wishes of a current prosecutor and former prosecutor, I embarked on this writing journey.  The blog started with just one follower and two views (one being mine and the other my wife).  The follower was (of course) a family member.  100 posts later and there are 27 followers (most of whom I haven't given a birthday present to) and tens of thousands of views. 

Thank you for following.  I hope you are enjoying reading as much as I am writing.  I've got plenty in store for the coming months.  Many of the upcoming posts will allow you to contribute too.  I'll be interviewing a former Legal Aid Attorney in the Bronx and current Innocence Project attorney.  Towards the start of June, I'll be asking readers to submit any questions and we will get as many answered as we can.

There is a terrific community of bloggers out there, which I'm discovering daily.  Check out the blogroll on the right for their work.  Their support has helped the site grow and I hope I'm returning the favor.

There will be 100s more posts coming.  As always, please submit your questions and ideas either in a comment of via email. 

As per a reader request, later this week we'll discuss the life of a New York City ADA.

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So, Why Law School?

I hear this question frequently.  It comes from lawyers and non-lawyers alike.  From college students contemplating law school and middle-aged men wishing they would have went.

As a writer and lawyer, words are the tools of my craft.  You would expect some witty reply that sums up my basic philosophy in life.  That is what the person who asked the question expects too.

My answer always disappoints.  The truth usually does.  The answer is I don't know.

My life has always been a guessing game.  When I describe my past, no one could have predicted my future.  And I feel that's still the case.  There is a lot more future for me out there and I don't have a clue where it will take me.  That is the exciting part of life, isn't it?

I digress.  So the real reason I went to law school?  I had finished college and dropped out of a master's program in speech therapy.  I was no longer interested in it.  I returned to my part-time job stocking shelves at a grocery store, started substitute teaching, and joined a volunteer fire company.

At the time, I was contemplating full-time employment at the grocery store.  Work my way up through the ranks and maybe I'd be a store manager by the time I was 40.

It was actually the chief of my fire company that changed the course of my life.  He told me that I needed to seek out a big city.  A person can only grow as big as their surroundings.  My destiny was not in stocking broccoli and pruning romaine lettuce.

A friend of mine was set on going to law school.  I decided to check it out.  I was a bit naive as I took the LSAT (which is exactly what it sounds like.  SAT's for law school), but I did well enough to get into a school.  A law degree would allow me to get an advanced degree, but not limit me to a particular field. A law degree would help open doors that were otherwise closed.

Law school was never the dream for me.  It became a means to an end of doing something bigger than I could imagine.  I still don't know what that will be.  I envy people I meet that are performing their dream jobs, or had specific goals from the time they were young.  For me, the river of life swept me along.  I floated and followed.  Sometimes I kicked my legs to feel like I was in motion.

It took someone to push me out of the current to actually start moving.  Thank you.

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Charged

Despite the three day weekend, I've spent a lot of time advising on criminal law.  Through my years in law enforcement I've developed several good relationships with police officers.  We've exchanged cell phone numbers and whenever I need anything on a case, I call them. 

The reverse is also true.  They call me when they need legal advice on a case or to ask if they have enough probable cause to arrest.  As I thought about my conversations with several detectives this weekend, I thought a post on how a suspect gets charged with a crime is due.

The police have the authority to arrest any person when they have probable cause to believe the person has committed a crime.  The police officers then decide the charges as well.

How do they attain probable cause to arrest?  Some examples:

1) Observe the crime being committed (DWI, drug and gun possession)
2) A citizen informs the police about what happened and the police corroborate the information (robbery call and the victim provides a description.  The suspect is arrested ten minutes later, one block away, and is identified by the victim).
3) Someone reports a crime, but there is no suspect.  The police investigate and develop evidence against a person.  (DNA hit in rape or burglary cases, following the paper trail in an embezzlement case).

The police file the charging paperwork at the time of the arrest.  The defendant is then arraigned on this paperwork shortly after.

The time between the arrest and filing of charges is when an officer or detective usually calls me seeking advice.  The questions are either is there enough probable cause to arrest or what charges should be filed.  Many times I instruct the police to gather more evidence before charging.

Once a defendant is charged and arraigned an ADA looks at the case.  If it's a misdemeanor, the ADA may need to file new charging paperwork if the charges the police filed were incorrect.  If it's a felony, the grand jury indictment will charge the proper crimes so no changes are necessary at the outset. 

The police do not need the district attorney's consent to arrest and charge person.  It is the district attorney's discretion to decide which cases to prosecute, however.  The DA's office can also direct the police to arrest someone who they did not arrest initially.

It's an interesting interplay between the police and ADA's.  Most of the time we are of the same mindset regarding what should happen to a case.  There have been many instances where we disagree though.  At that point, the DA's office has the final say on whether to proseute a crime.

So what was the result from all the phone calls over the weekend?  The police arrested a suspect we've been looking for since the New Year. 

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Practice Makes Perfect

This past Saturday morning, I could be found at my law school. The purpose - to judge a mock trial competition.

I'm sad to report this was my first time in that building since graduation. I left for another city after the bar exam and only recently returned. You can imagine the memories flooding back.

The building looked the same. The classrooms were in their proper place. The library was still on the second floor. But it was all different. Smaller maybe. The memories swirled, but they too were different. They were out of focus and came back slowly like waving around photos from a old polaroid camera.

I was one of three evaluators for the students in my room. This was the culmination of their semester's work in a trial technique class. They had practiced their opening and closing statements for weeks and were ready for action.

That's when the vagueness faded and the memories flooded as if the dam holding them shattered. Growing up, I was paralyzed when public speaking. Sweat dripped from my face and armpits. My voice cracked. My breath faltered. I knew every person watched, judged, and waited for my inevitable mistakes. It was all I could think about.

This didn't develop in law school. The flower of my insecurity was planted in elementary school, watered in high school, and grew like a weed in college. There was just something about speaking to a group that threw my insecurity motor into overdrive.

I determined to crush this feeling in law school. There was only one way to do it. Practice. It took me a year to garner the necessary courage. In my second year, I tried out for the national trial team. This is a team that travels around the country competing against other schools in a mock trial.

At the tryout, I gave an opening statement and cross-examined the defendant. Deep breaths didn't work. Sweat billowed from every outlet. My voice cracked like I'd never used it before. It was so bad, the judges even commented on my nerves.

They saw something though. Something I didn't. Something I was trying to see. They let me on the team (although this could be attributed to having more spots available than applicants). It was a life-altering moment. Without it, I never would have practiced so hard. I might not have set food in a courtroom again.

I competed in Atlanta. We lost. I was far from the best in the competition, but my performance was credible. It was a stepping stone. I signed up to read at my church every week. I tried out and made a moot court team. I took the very same trial technique class I now judged. At the end of law school, speaking in public was a breeze. I actually looked forward to it.

Now, when I stand in front of a jury, there are nerves. But these are different. They aren't nerves based on an irrational fear that these twelve men and women were judging me. The nerves are there because I want to do a great job. I worked so hard on the case that the thought of losing is difficult to accept. Today, I just hope I can live up to my new standards. I am far from perfect at anythind I do, but now I accept my mistakes as lessons. I learn every time. Anytime I'm speaking, I know the audience isn't following along on a printed speech. No one even knows when I make a mistake! I act natural and move on.

That's a far cry from just praying I didn't pass out.

The participants I observed on Saturday were all terrific and will have fine careers. Anyone reading, please take it from me. Practice makes perfect. It's part of the reason I started this blog. I love writing and hope all this practice is helping.

What obstacles have you overcome in your life to get to where you are? Your career?

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Eyewitness (Mis?) Identifications

The New York Times had an article over the weekend concerning eyewitness identification. What struck me about the article was the generalization of all cases based on eyewitness identification without providing any data to support the claims. I realize my argument will not be based on scientific studies either. I will only discuss my experience.

For instance, the author states that "every year 75,000 eyewitnesses identify suspects in criminal investigations. Those identifications are wrong about a third of the time, a pile of studies suggest."

One of the reasons I wanted to start this blog was to address issues like this from a prosecutor's standpoint. My caseload consists of hundreds of felonies every year. For easy math, let's say I handle 99 a year. Based on this assertion, 33 of those cases are based on mistaken identification! While there are a handful of cases a year that I am not confident in the identification, my office disposes of such cases before they are even presented to the grand jury. We are not interested in prosecuting anyone when we have a doubt about.

The key is corroboration in cases. As a prosecutor, corroboration is the lifeblood of an eyewitness ID. What does this mean? A few examples:

1) A robbery victim calls 911 and reports to the police that the robber was a white male, six feet tall, with a shaved head, wearing a red hooded sweatshirt with white letters. A half hour later a police officer stops a white man, 5'11" tall, bald, and wearing the sweatshirt described. He's only one block away from where the robbery took place, but he doesn't have the purse on him.
2) The suspect has the watch that was stolen from the victim on him when stopped by police
3) The suspect says they were in the area when the robbery happened. Maybe they even say they saw it. This coupled with an ID is good corroboration.
4) Three gas stations are robbed in three weeks. The identified suspect lives smack in the middle of all three.
5) Two separate witnesses are shown a series of photos of the suspect in separate rooms at the same time and both identify the suspect's photo as the robber.

Should the suspect be charged with the robbery if the victim identifies him and that's the only evidence? The prosecutor should look at single eyewitness identifications with a critical eye as it is abhorrent to prosecute an innocent man. If there is nothing to contradict the ID though, justice for the victim and the community demand the person be charged.

Are the police supposed to let the suspect go because their is no forensic evidence? As I tell juries, the defendant decides where the crime happens and how it happens. He decides whether to leave any forensic evidence behind. We cannot reward smart criminals and only punish the sloppy ones.

There is no DNA or fingerprints in the majority of cases. There's not even an opportunity to gather some as the defendant was wearing gloves or threw the only evidence in a river never to be recovered. Justice demands that crimes be prosecuted, not just the easy ones. I applaud and encourage the work being done by the Innocence Project and have a friend working hard to exonerate the wrongly accused. I subscribe to some of their suggestions as well like a double blind line-up (where the detective conducting the line-up doesn't know who or where the suspect is in the line-up so they can't even inadvertently suggest who it is). I don't agree that these exonerations should require more evidence in cases than the law currently requires.

In New York State, a judge determines whether a police arranged identification was "unduly suggestive" during pre-trial hearings. The law recognizes that all identification procedures are somewhat suggestive. The court is looking for those procedures where it is so suggestive that the witness picked the defendant based on the improper police conduct. Also, the identifications are then subjected to cross-examination by defense attorneys in front of juries. These are two levels of already established review and the judge instructs the jury on how to judge the credibility of a witness and the factors to consider in weighing an identification.

The debate will rage on and eyewitness experts will keep gaining in popularity. Experts like that, however, are a topic for separate blog. I'm trying to find statistics of identifications that have been confirmed through forensic testing after new testing is ordered. Does anyone know of any?

Should cases based solely on eyewitness identifications require additional evidence to proceed? Should charges be barred if the only evidence in the case is the victim saying with certainty the defendant committed the crime?

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