31
One last word about photo identifications and due process: Federal courts have been flooded with allegations of suggestive photospreads even since Simmons v. United States, 390 U.S. 377 (1968), but in the last year, only two federal appellate courts sustained these contentions. See, Eighth Annual Review of Criminal Procedure 67 Geo. L.J. 317, 388 (1979). After a comprehensive survey of last year's cases involving this point, the writer of the Review noted that there are "formidable odds against judicial acceptance of a defendant's claim that the use of an identification against him violated due process." 39/
B. IDENTIFICATION OF THE RESPONDENT
1. In court identification
1Mendelkorn, Wulfowitz and Loewenstein each pointed out Hazners in the courtroom and identified him as the same person whom they had seen at the Prefecture (Mendelkorn, tr. 90, 911; Wulfowitz, tr. 2532) or at the ghetto gate (Loewenstein, tr. 354, 3553) 40/ Wulfowitz noted that "he has changed, he has the same features but
| 39/ | Id. the "tainted photo ID" argument was rejected in, e.g., United States v. Falange, 426 F.2d 930 (2d Cir.) (3 of 16 photos were of defendant), cert. denied, 400 U.S. 906 (1970); United States v. Harrison, 460 F.2d 270 (2d. Cir.) (defendant's picture was full face, all others were profiles), cert. denied, 409 U.S. 862 (1972); United States v. Boston, 508 F.2d 1171 (2d Cir. 1974) (spread included photo which had appeared in newspaper), cert. denied, 421 U.S. 1001 (1975). |
| 40/ | 2In civil law courts, the only ones with which the witnesses were familiar, the in-court identification procedure allows the defendant to be placed anywhere in the courtroom, even among the spectators. This fact should be kept in mind in weighing the value of the in-court identifications. |
Examination
1“Mendelkorn, Wulfowitz and Loewenstein each pointed out Hazners in the courtroom” . . . 2“In civil law courts, the only ones with which the witnesses were familiar, the in-court identification procedure allows the defendant to be placed anywhere in the courtroom, even among the spectators. This fact should be kept in mind in weighing the value of the in-court identifications.”
The INS's contention that in-court identification carried any weight is meaningless because Hāzners sat next to his defense counsel every day of every session.
| 1 | Testimony of Ber Mendelkorn, 25-October-1977, direct, transcript pp. 15–93. |
| 2 | Testimony of Mendel Wulfowitz, 27-October-1977, direct, transcript pp. 232–253. |
| 3 | Testimony of Meier Loewenstein, 27-October-1977, direct, transcript pp. 319–355. |