BRADY EYEWITNESS ID DISCOVERY LETTER

The attached ID-specific Brady discovery letter takes the position that any information tending to
show that an identification is weak, flawed, or unreliable for any reason is exculpatory and therefore must
be disclosed under Brady. This includes anything the police did or did not do that might undermine the
reliability of the identification, any information relating to the witness’s opportunity to view or encode the
identity of the perpetrator, and any other factors that tend to weaken the identification, such as an earlier
description that conflicts with the defendant’s appearance.
 [DATE]

[PROSECUTOR]

Re: United States v. ________

Criminal Case Number: F-

Dear [PROSECUTOR]:

In a previous letter concerning the above-cited case, I have requested that the government
provide Rule 16 discovery, Brady and Jencks materials. By this letter I renew those requests and
additionally make specific requests for materials related to the government’s intention, as I
understand it, to elicit eyewitness identification testimony at the trial of this matter.

A great deal of scientific research by psychologists in the area of eyewitness

identification has yielded a number of findings as to factors that correlate positively and
negatively with accurate eyewitness identification. The following requests for information are
based on this research and therefore are “material in the preparation of the defendant’s defense”
pursuant to Rule 16 and have the potential to produce defense-favorable evidence that must be
turned over as Brady. As you know, the government has an obligation to search in and/or
inquire of all the sources of your evidence to determine if information and evidence favorable to
the defense exists. See Kyles v. Whitley, 514 U.S. 419, 437-38 (1995) (prosecution “has a duty to
learn of any favorable evidence known to the others acting on the government’s behalf in the
case, including the police”); see also Strickler v. Greene, 527 U.S. 263 275, n. 12 (1999)
(prosecutor has constructive knowledge of all favorable evidence known to those acting on the
government’s behalf, even if no actual knowledge of materials, and even if materials are in the
file of another jurisdiction’s prosecutor); United States v. Safavian, 233 F.R.D. 205, 207 (D.D.C.
2006) (prosecutor has a duty to search and disclose Brady evidence, within reason, in the
possession of all Executive Branch agencies and departments, rather than solely the agencies
“closely aligned” with the prosecution); United States v. Jernigan, 492 F.3d 1050, 1056 (9th Cir.
2007) (prosecutor has a duty to disclose existence of potential “second suspect”).

Accordingly, I request that you provide as soon as possible information related to the
following areas concerning the eyewitness identification evidence in this case.

 Condition of Eyewitness at time of viewing subject of identification

o Any problems with sight? Needs corrective lens? History of vision problems?
o Any problems with mental functioning? Memory? Attention? Mental disorders?
o Age of the eyewitness?
o Under the influence of alcohol or any drug at the time of the incident?
o Any limitations in verbal ability and ability to describe?
o Is witness of a different race or ethnic group from subject identified?
 o Is witness of a different gender from subject identified?
o Is there any evidence that the witness was under stress or afraid at time of
viewing? If so, from what causes and to what extent? Please provide any
statements documenting stress or fear.
o Was witness exposed to a weapon?
o Was the witness familiar with the subject from contact or interaction before the
incident? If there is information about the history of contact between eyewitness
and subject, what is the source of that information and has it been corroborated?

 Opportunity to view subject of identification

o What was the length of time eyewitness was able to view subject of
identification?
 If there is information as to the length of viewing time, what is the source
of that information – the eyewitness, another witness, or another source?
o What was the distance between the eyewitness and the subject of identification
o During duration of eyewitness viewing subject, were there any visual obstructions
between witness and subject?
o What were the lighting conditions at the time of the incident?
o During period of viewing, did any events or circumstances distract witness?
 Specifically, did the incident involve any weapons or violent acts?
 Did the witness view the weapon? If so, provide any description of the
weapon and any information about where the weapon was pointed.

 Post-incident Circumstances

o Did the witness provide a description of the culprit?

 Specify time, date and location, and person to whom description was
given.
 Specify presence or absence of details of description, including facial
characteristics, hair, clothing, shoes, height, weight, age, race or
ethnicity, gender, or other distinctive characteristics.
 What questions were asked of the eyewitness to prompt a description of
the subject?
o At any time after the incident, did the witness indicate any level of confidence or
lack of confidence in his/her ability to make an identification?
o After the incident, did the eyewitness have any association with other witnesses to
the incident?
o What if any information did police or others give to the eyewitness concerning the
incident or any suspect before the eyewitness made an identification?
o What comments did the police or others make or information did police or others
give to the eyewitness concerning the incident or any suspect after the eyewitness
made an identification?
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 Identification Procedures
o How many identifications were made? Specify date, time, location, all persons
present, the witnesses who made an identification, and type of procedure used.

o How many non-identifications (either identification of a third party or a failure to

identify anyone) were made? Specify date, time, location, persons present, and
type of procedure used.

o In addition, if a show-up procedure was used in this case to collect identification

evidence, please provide all details of how police conducted each show-up,
including but not limited to:
 Where was the eyewitness when the subject was presented?
 Was more than one subject presented? Simultaneously or sequentially?
 What were the viewing conditions, including distance from the subject and
any obstructions between eyewitness and subject?
 Were any other witnesses present during or immediately before or after
the procedure?
 Specify all statements made to the eyewitness before during and after the
identification procedure, including any cautionary instructions.
 Specify all statements made by the eyewitness before during and after the
identification procedure, including any statements regarding confidence or
lack of confidence in the identification made or not made.
 How was the subject presented? (e.g., standing, sitting, lying on the
ground, in handcuffs, flanked by police etc.)
 Was any police officer conducting the procedure familiar with the case?

o If a photographic array procedure was used to collect eyewitness identification

evidence, please provide all details of how police conducted the photographic
array procedure, including but not limited to:
 How many photos in the array?
 How were these photos selected?
 Did any of the individuals displayed in the photo array have any suspected
involvement with the case? If so, identify these individuals by name.
 Did any of the individuals selected to participate in the photo array work
for a law enforcement agency? If so, identify these individuals by position
in the photo array.
 By whom were these individuals in the photo array selected and what is
the race/ethnicity of the persons who composed the photo array?
 Did the photographs show the full body of the participants in the array or
just head and shoulders?
 Was the police official who administered the identification procedure
familiar with the case?
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  Was any other police officer present for the administration of the
identification procedure familiar with the case?
 Were any other witnesses present during or immediately before or after
the procedure?
 Were the photos in the array presented to the eyewitness sequentially or
simultaneously?
 Specify all statements made to the eyewitness before during and after the
identification procedure, including any cautionary instructions.
 Specify all statements made by the eyewitness before during and after the
identification procedure, including any statements regarding confidence or
lack of confidence in the identification made or not made
 Please provide a copy of any array shown to the witness(es).

o If a lineup procedure was used to collect eyewitness identification evidence,

please provide all details of how police conducted the line-up procedure,
including but not limited to:

 How many individuals in the line-up?

 How were these individuals selected?
 By whom were the individuals in the line-up selected and what is the
race/ethnicity of the persons who composed the line-up?
 Did any of the individuals selected to participate in the line-up other than
the defendant have any suspected involvement with the case? If so,
identify these individuals by name.
 Did any of the individuals selected to participate in the line-up work for a
law enforcement agency? If so, identify these individuals by position in
the line-up.
 Was the police officer who administered the identification procedure
familiar with the case?
 Was any other police officer present for the administration of the
identification procedure familiar with the case?
 Were any other witnesses present during or immediately before or after
the procedure?
 Specify all statements made to the eyewitness before during and after the
identification procedure, including any cautionary instructions.
 Specify all statements made by the eyewitness before during and after the
identification procedure, including any statements regarding confidence or
lack of confidence in the identification made or not made
 Was any document given to the eyewitness either before or after the
procedure to be read or to be marked on? If so, be sure to provide these
documents.
 Please provide any videotaped or photographic recording of any line-up
procedure.
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 o Has any eyewitness (including eyewitnesses who have identified defendant and
those have not identified defendant) met with the police or the prosecution in
preparation for trial and have been shown any photographs or video footage of the
defendant.
 If so, please identify the witness and specify when and where this meeting
occurred, and with whom.
 Please detail anything that was said by the police or the prosecution before
during or after the viewing about any photographs or video footage or the
witness’ opportunity to view the culprit or identify the defendant, and
anything that was said by the witness regarding the same.
 Please provide a copy of the photography or video footage displayed

 Potential “Second Suspect”

o Do any other individuals exist who correspond to the description given by the
witness(es) and who are under suspicion by the police for a similar crime or who
are currently being prosecuted for a similar crime?

Your prompt response to these Brady requests is much appreciated.

____________________
Staff Attorney
[OFFICE]
Tel: ##
Fax: ##
E-mail ###