Practice Pointer for Lawyers: Challenging Eyewitness Identifications in Rape Trials

Wundermann v. State of Idaho (2017)

by David S. Marshall

A recent Idaho Supreme Court case highlights the importance of challenging line-up identifications when defending rape cases. The lower court had found that John David Wundermann’s Sixth Amendment right to effective assistance of counsel was violated by his conviction for a 2000 attack on Linda LeBrane.

The Idaho Supreme Court agreed that Mr. Wundermann’s right was violated when his trial counsel, due to inadequate preparation and ignorance of the relevant law, failed at trial to properly challenge LeBrane’s eyewitness identification of Mr. Wurdemann in a video line-up. The supreme court held that the reliability of LeBrane’s identification did not outweigh the improper suggestiveness of the video line-up in which Mr. Wurdemann was identified as the attacker, and that Mr. Wundermann’s trial counsel should have filed a motion to suppress that evidence.

LeBrane Identifies Mr. Wundermann as Her Attacker

The supreme court called the identification procedures used by the police in this case “clearly improperly suggestive.” Before the line-up, LeBrane described her attacker to police as very tall and thin with very greasy, long, dark hair. She also said he was Hispanic or native-American, that he spoke English, and that his face was free of facial hair but “really messed up,” perhaps that it had a bad rash on it.

The video line-up presented to LeBrane consisted of six men, with Wundermann in the center (noticeably taller than the other men). Only two other participants in the line-up had long hair like Wundermann’s (and both of them were much shorter than him). One man did not speak English, and one man had a very full beard. As a result, Wurdemann was the only participant in the line-up who met LeBrane’s description of her attacker. The court called orchestrating a suspect line-up in such a way “the epitome of an improperly suggestive line-up.”

Trial Counsel Fails to Challenge the Identification from the Improperly Suggestive Line-up
Mr. Wundermann’s trial attorney made no attempt to challenge the line-up identification at trial because he mistakenly believed that the State’s pre-trial motion to admit evidence of photograph line-ups also covered the evidence of the video line-up. The State did not move to admit the video line-up until trial, at which point defense counsel failed to object.

In failing to object to the admission of the video line-up, Mr. Wundermann’s trial counsel overlooked Idaho Criminal Rule 12(b)(3). The rule permits defendants to move to suppress evidence on the ground that the evidence was illegally obtained or is otherwise constitutionally inadmissible. As an impermissibly suggestive line-up directly affects a defendant’s due process rights, it is evidence that can be challenged on constitutional grounds under the rule.

The supreme court found that there was no reasonable trial strategy that excused defense counsel’s failure to object to the admission of the video line-up. Because he failed to properly prepare and review the record and transcripts before trial, he did not realize the importance (or even the possibility) of challenging the admission of the suggestive video line-up on due process grounds.

Why Challenging Eyewitness Identifications is Crucial to Defending a Rape Case

Eyewitness identifications are common evidence in rape cases. In some cases, this identification may be the only significant piece of evidence linking the defendant to crime. It is therefore essential when defending these cases to be aware of the possible challenges in the jurisdiction to eyewitness identifications, whether on due process or other grounds. A lawyer’s duty to defend diligently requires thorough preparation and research of all relevant law.

Though most of our cases at the Marshall Defense Firm are in Washington State (our office is in Seattle), we occasionally defend cases in Idaho and other states. No matter where we work, we make sure to research the law that applies there.