Video: How did accuser identify Duke men?

updated 4/24/2006 1:14:09 PM ET 2006-04-24T17:14:09

There are new questions as to what the alleged victim in the Duke lacrosse rape case says the two defendants, Reade Seligmann and Collin Finnerty, did to her and also how she picked them out in a photo lineup.  A stripper told police she was raped at a lacrosse team party March 13. 

Seligmann and Finnerty have been charged with rape.

NBC's Michelle Hofland discussed the exclusive details with Dan Abrams.  

DAN ABRAMS, HOST, "ABRAMS REPORT": Michelle, what did you find?

MICHELLE HOFLAND, NBC NEWS CORRESPONDENT:  The defense attorneys for the lacrosse players came down here to the courthouse to get from the district attorney copies of the documents that say how the alleged victim identified her alleged attackers.  The defense attorneys are being very tight-lipped about those documents. 

However, NBC News has exclusively taken a look at those documents.  Dan, this is what I saw.  The date, April 4: about three weeks after the alleged gang rape.  The documents say the police only showed her photos of lacrosse players and they flashed the photos one at a time on a big screen in front of her for one minute at a time.  And in each case they asked her, do you recognize him? In the transcripts that I read, when she saw a photo of Collin Finnerty, one of the players indicted, she said "That's the man who stood behind me" and then she briefly described how she says he sexually assaulted her. 

Detectives then asked, are you sure.  Her response, yes.  Then when she got to the second photo of the second player indicted, Reade Seligmann, according to the transcripts, she said he was the player who stood in front of her and forced her to perform oral sex.  Detectives asked her, are you sure?  And her response, yes, 100 percent. 

About the third alleged attacker.  The transcript shows that she thinks that there could be two other guys that possibly could be that one attacker. 

When she looked at one particular photo, she said, "He looks like him, I'm not sure.”  Then on the very next photo, she said that he looked like the guy who could've assaulted her.  Dan, further down, the detectives ask her how sure she was about that guy and her response was 90 percent.

ABRAMS:   On the third assailant, she is not 100 percent, correct? 

HOFLAND:  Ninety percent on that. 

ABRAMS:  Right.  She says she is 100 percent certain with regard to Seligmann and Finnerty, 90 percent certain about another person, right?

HOFLAND:  Yes, that is true. 

ABRAMS:  All right, Michelle Hofland, it's an important find you got here.  This is important stuff in the context of this case.  Thanks.

MSNBC legal analyst and former prosecutor Susan Filan, criminal defense attorney Yale Galanter, North Carolina defense attorney Mark Edwards, and former Denver District Attorney Norm Early joined Dan to discuss how the accuser identified the men involved in the case. 

ABRAMS: What strikes me about this, Norm, and you've done a lot of these cases, and you've done a lot of lineups, they only showed her Duke lacrosse players? 

NORM EARLY, FORMER DENVER DISTRICT ATTORNEY:  In this instance, Dan, that may not be suggestive.  The issue is whether the lineup and the photos that she is shown suggests to her who the culprit is, and one issue would be, did they tell her that there were only lacrosse players, so she's expecting the person to be there?  That wasn't clear from what Michelle said.

But nonetheless, they're all white males, it's not as if though you're looking for an African American and you have 26 white guys and one African American guy because that would be clearly a suggestive lineup, so we're talking about all white males.  You can't see their height probably, so that's not suggestive and if their hair colors are similar, you may not have a suggestive lineup.  Showing them for a minute apiece and showing them in that fashion where they're up on the wall, maybe that is something that has been cleared with their police department on other occasions where judges have said that that procedure is OK. 

ABRAMS:  Yes.  It is.  I guess what troubles me is that I would think in an effort to test her credibility, they would put in some other people as well, to say "Could it be this person or could it be that person?"  I mean yes, it's fair to say that she said it happened at this party, and this was a Duke lacrosse party, but shouldn't they do something to test her credibility?

SUSAN FILAN, MSNBC LEGAL ANALYST:   Well the key here and Norm hit on it, is a lineup in order for the results to be admissible in a court of law cannot be unduly suggestive.  It can't suggest to the complaining witness who the perpetrator is.  Now the question is, is it really suggestive to just show lacrosse players? It may be in this case and if they made a mistake here, this is a very serious mistake, because we've got to figure out if a rape occurred and if so, who did it.  The I.D. now without DNA is really going to be key.  If they blew this, it's trouble. 

ABRAMS:  I can tell you that the defense attorneys had told me if it turns out that they only showed her Duke lacrosse players, we're going to move to suppress that and they're going to try and keep that out of the case altogether. 

YALE GALANTER, CRIMINAL DEFENSE ATTORNEY:  She had to pick three Duke lacrosse players.  Two definitely, one maybe.  She had no choice to pick anybody else.  This is as suggestive a lineup as I've ever seen.  It's a confined database of people; it's highly suggestive just to have shown her Duke lacrosse players.  We know that other people were at that party. 

So it could have been anybody else.  They should test her credibility and that's been the major mistake here.  This district attorney and these law enforcement officers haven't tested this complaining witness' credibility at all, and that's why we're seeing all these mistakes. 

EARLY:  If this were a perfect lineup, the defense attorneys would be moving to suppress it.  There's a suppression motion in any case where a lineup is shown.

ABRAMS:  Fair enough, but that doesn't address the question of whether this is a particularly good motion or not.

FILAN:  Exactly.  Most suppression motions fail.  The question here is, might this one actually win?

ABRAMS:  Right.  All right, Mark Edwards, you're our North Carolina guy, what do you make of this? 

MARK EDWARDS, DEFENSE ATTORNEY:  I'm not very surprised that they didn't include any photographs of anyone else other than the Duke players.  I agree.  I think it is overly suggestive.  There's a chance that legally, the out of court I.D. may be suppressed. 

I think there's a higher standard to keep her from being able to identify people in court.  I think that would probably be permitted, but this is going to be such an area for cross-examination.  I think the police have really hurt their case by doing this.

ABRAMS:  One of the things that troubled me, Susan, was the fact that as Michelle read it to us, she said that one person, might be him and then the next person was sort of, how certain, 90 percent.  Just the language she was using didn't sound like 90 percent.

FILAN:  I wasn't sure which 90 percent, the first guy or the second guy?

ABRAMS:  I don't know.  Just the fact that she says 100 percent certain though, I mean that's exactly what prosecutors want.  They want someone who is going to come in and say that's the guy.  She's saying 100 percent certainty. 

GALANTER:  If she was told that she was being shown all of the Duke lacrosse team and she picked these two guys and she said 100 percent certain, their neophyte criminal defense attorney could cross-examine her and make such hay with this lineup.  I've seen those pictures.  If those pictures came from that team photo, this whole identification procedure will never see the light of day in a courtroom. 

They don't look dissimilar.  All the kids look the same.  They're wearing the same type of shirts.  They're looking into the camera the same way. 

FILAN:  I think another problem, Dan, might be that some of these photos might be dated and some of these boys might have changed their appearance.  Their hair may be longer now, etc.

EARLY:  That's an excellent point because appearances do change, and as has been pointed out, if they told them they're Duke lacrosse players or there's some other way they can be identified as Duke lacrosse players by the shirts that they're wearing or something that makes them stand out as Duke lacrosse players, that in and of itself is suggestive. 

ABRAMS:  Norm, you're agreeing that if they showed them the lineup from the lacrosse team photo, you would agree even as a tough former prosecutor that that was a suggestive and inappropriate way to show her pictures?

EARLY:  One is suggestive.  The issue is whether it's unduly suggestive.  And that's for a judge to decide.

Watch the 'Abrams Report' for more analysis and interviews on the top legal stories each weeknight at 6 p.m. ET on MSNBC TV.

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