Back to my '92 murder case. . .the line-ups are gone, missing, lost, mia. I have two ids from line-ups of the defendant placing him in the neighborhood (which is helpful because he isn't from Texas). One is an id of him being in the neighborhood a few days before the offense and the second is of him being in the neighborhood earlier in the day on the date of offense.

The line-ups are missing, however. I do NOT believe either witness will identify the defendant IN court. The only line of cases I have found concern that issue - If they could id him in-court, the missing line-ups are not a problem (usually).

Thoughts on whether I could have each witness testify to the showing of the line-up, that it was not suggestive, no one told him which to pick, that he chose one etc. Then have the detective testify to the same and that the photo the witness chose was the defendant and have the detective id. the defendant. . . .

Statement of identification? TRE 801(e)(1)(C).

Is that a question JohnR, or a statement of law?

that read this forum and like to post it to their list serve. . .The defense attorney is being kept informed, as he should be and as required by law, of the missing evidence in this case. I have been, in fact, compiling a written Brady disclosure as I go along to make sure nothing is not turned over.

I think the missing line ups are a problem, as how else can you prove that there was no undue influence or that the line up was properly done (i.e. included pictures of people with similar appearance as the suspect, that there were enough pics, and the like). While someone can say those things, the proof, afterall, is in the pudding.

Because the stakes are so high in this case, and because you are dealing with a 'stranger' situation, as opposed to a person known to the witnesses, I would think that a jury is really going to want to see how those line ups were done.

I also do not see how a witness can testify that the line up was not "suggestive." How would they even know? They are not experts in how line ups are supposed to be conducted.

But if that's all that you've got, then you have no choice but to go for it.

There have been too many exonerations lately due to misidentification to let this one slide by.

That is a statement of identification. The fact that the lineups are no longer available goes to the weight to be given the testimony and not the admissibility.

More a suggestion than a question.