dada_floridamisidentification_final - UDC Law Review

analysis, making it harder on the defendant to exclude suggestive evidence. 117 Hence, theapplicable law reads that “(1) the identification procedure employed by law enforcementwas unnecessarily suggestive, and (2) considering the totality of the circumstances, thesuggestive procedure gave rise to the substantial likelihood of irreparablemisidentification.” 118While the Supreme Court does not impose the “irreparable” standard on thelikelihood of misidentification, the Florida Supreme Court’s test imposes a morerestrictive burden on the defendant. 119 Furthermore, the Supreme Court standard wouldbe controlling in situations that the “irreparable” standard places more restrictions on thefundamental rights on defendants than the Constitution would permit. 120Conclusively, the Florida Supreme Court standard is highly unfavorable towardsdefendants. As previously mentioned, defendants can only try to exclude evidence if theidentification was unnecessarily suggestive by law enforcement. 121 Other factors, such asestimator variables are not taken into consideration in assessing unnecessarily suggestivepractices. Also, analysis can only be applied if the suggestion came from police conduct,the first prong does not account for unnecessary suggestion of private parties that mayfurther contribute to misidentification. 122 Moreover, the second prong analyzes the“totality of the circumstances” exclusively on the Biggers’ five factors, precluding anyother variables that may affect the eyewitness’s memory independent from unnecessarilysuggestive practices. Yet further, the defendant has to prove by the preponderance of theevidence that, based on the totality of the circumstance, the suggestive practices lead tosubstantial likelihood of irreparable harm. The result is a due process standard that ishighly skewed in favor of admissibility of eyewitness evidence even though it may behighly unreliable.III. RECOMMENDATIONSThe advancement and implementation of DNA testing have lead to post-convictionexonerations based on misidentification, like Frank Lee Smith. Unfortunately, hisexoneration came too late. Of the nine cases that the Innocence Project of Florida profiledon misidentification, all of the convicted were exonerated by DNA testing. 123 DNAtesting is not always viable in cases that the police cannot procure any genetic material. 124Additionally, judicial procedure, ineffective assistance of counsel, and other setbacksattribute to delays in access to DNA testing. 125 Smith for example, waited more thanfourteen years, through two evidentiary hearings, for post conviction DNA exoneration.ed.).117 Michael E. Allen, Florida Criminal Procedure: Chapter 7. Eyewitness Identification (2010118 Id. at § 7:11.119 Id.120 Id.121 Thompson, supra note 69, at 610-612.122 Id.123 Case Profiles, supra note 7.124 Id.125 Id.15