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Duke Lacrosse Defense Wants Photo IDs Thrown out

Posted December 14, 2006

— Defense attorneys in the Duke lacrosse case now want the judge presiding over the case to throw out the photographic lineup in which the accuser identified the defendants.

In a motion filed Thursday, attorneys for Reade Seligmann, 20, Collin Finnerty, 20, and David Evans, 23, also ask that any "in-court" identification by the accuser be barred on the grounds that it is unreliable "as a result of tainted procedure … as a result of the numerous errors and misidentifications made by the accuser."

Experts have said such a motion, if successful, could keep prosecutors from bringing the case to trial.

"If the court throws out the out-of-court identification and rules that it is so suggestive that there can't be an in-court identification, then the case is effectively dismissed," said James E. Coleman Jr., a Duke University law professor.

The motion says that the alleged victim had failed to identify any of her attackers in an identification procedure before the April 4 lineup -- the one in which she did identify Seligmann, Finnerty and Evans as her attackers.

It goes on to say that District Attorney Mike Nifong directed that a different identification procedure be used in which photos of all the white members of the team who were at the March 13 party where the alleged attack occurred were assembled in a PowerPoint presentation for her to view.

Attorneys write that this happened despite the fact that two people at the party were not members of the lacrosse team.

"In short, the accuser was asked to pick three people as her attackers from those present at the scene, and because only those thought to be at the scene were shown to her, she was, in effect, given a multiple-choice test in which there were no wrong answers," attorneys wrote.

They also write that the accuser's identification is "riddled with errors," with the accuser identifying two players who were later determined not to be at the party.

"In the process of identifying her three attackers, the accuser actually identified four separate men as her attackers. The state apparently just chose three or four to indict without further investigation," the motion reads.

It also states the woman did not recognize people whom she had identified previously and misidentified people as doing things at the party that the investigation showed they did not do.

This is not the first time defense lawyers have asked the court to disallow the photo lineup. In an earlier motion, the defense called the procedure "unnecessarily suggestive" because the accuser was shown only photos of lacrosse players.

But Thursday's motion makes a much more detailed argument. It details efforts by police investigators and Nifong to assist the accuser in identifying the three men she said gang-raped her in a bathroom.

This latest motion comes one day before a scheduled hearing in which Nifong is expected to hand over more evidence to defense attorneys.

Evans, Finnerty and Seligmann, who have maintained their innocence throughout the investigation, are expected to be in court. It would be the first time they have been in court together.

Nifong has not commented, telling WRAL that he is reserving his comments for the courtroom.
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