This case asks the Florida Supreme Court to decide whether the right to counsel guaranteed by the constitutions of Florida and the United States requires a defendant’s attorney to be present when the prosecution shows a video taped lineup of the defendant to a potential witness. The facts of this year’s case are as follows.

On the evening of November 6, 2000, Officer Rubinson with the Miami-Dade Police Department responded to an armed robbery call. The police dispatcher described the robbery suspects as two African-American males traveling in a white Acura. As Officer Rubinson approached the scene, he observed a white car matching the description traveling toward him at approximately forty to forty-five miles per hour. Once the vehicle passed him, the officer made a u-turn and gave chase, but subsequently crashed his police cruiser. Rubinson testified before the trial court that one week after giving chase to the robbery suspect, a career criminal auto theft “be on the look out” flyer, also known as a BOLO flyer, was distributed at Department roll call. The flyer had six photographs, including a photograph of Jones, the petitioner in this year’s case. In addition to stealing cars, the BOLO flyer indicated that Jones had been arrested for shooting at a policeman. Rubinson informed the trial court that he may have mentioned recognizing one of the men on the BOLO flyer to his captain, but that he did not mention this to the lead detective on the armed robbery case.

Subsequently, Jones was arrested and charged with several burglaries unrelated to the incident that occurred the evening of November 6th. Upon his arrest for these charges, Jones participated in a video taped lineup. Those charges were dropped, but Jones was later arrested again and charged with armed robbery and aggravated assault when one of the victims of the November 6th robbery identified him as the perpetrator.

Prior to trial on the armed robbery charges, Jones informed the prosecution that he had an alibi for the night of November 6, 2000, and gave the prosecution the names of six alibi witnesses. On February 15, 2002, after deposing Jones’ alibi witnesses, the state attorney held a meeting in his office with several law enforcement officers, including Rubinson, and Detectives Villegas and Fernandez, two auto theft detectives who knew Jones and had arrested him on previous occasions. Detectives Villegas and Fernandez did not, however, have anything to do with the armed robbery case. After confirming that Rubinson was the officer involved in the car chase that occurred the night of November 6, 2000, the state attorney asked Rubinson whether he could identify the driver of the vehicle he observed fleeing the scene. Rubinson indicated that he could, and was shown the video tape lineup in which Jones had participated.

In testimony before the trial court, Rubinson stated that prior to viewing the video tape, the state attorney told Villegas and Fernandez, who remained in the room for the viewing, not to say anything to Rubinson. Rubinson stated that he moved his chair to the corner of the table and sat with his chin in his hands so that he could concentrate on the tape. Rubinson testified that he may have seen the BOLO flyer again prior to his viewing of the video tape in the state attorney’s office. After viewing the tape, Rubinson identified the man he had observed speeding away from the November 6th incident. The man he identified was Jones.

The State informed the defense of Rubinson’s identification. Jones submitted a motion to suppress the identification on the basis that the procedure used to obtain the identification was unnecessarily suggestive. (To “suppress” an identification means to exclude it from trial.) The trial court agreed, and suppressed the identification, stating that the passage of years between the crime and the viewing of the video lineup, coupled with the presence of two auto theft detectives who had previously arrested the defendant several times for auto theft, undermined the reliability of the identification. The trial court ruled that Officer Rubinson would be permitted to testify based on what he personally observed the night of November 6, 2000, as well as his identification of Jones from the BOLO flyer he saw approximately one week later, but that the officer’s identification from the video lineup would be excluded.

The State appealed the trial court’s order suppressing the identification from the video lineup to the Third District Court of Appeal. The State asked the district court to recede from, or overrule, its prior decision in Cox v. State, 219 So. 2d 762 (Fla. 3d DCA 1969). In Cox, the district court had ruled that a person who has been arrested and “booked” is entitled to have a lawyer present when a video taped lineup in which he appears is shown to a state witness as a substitute for a live lineup. The State also asked the district court to recede from its decision in State v. Gaitor, 388 So. 2d 570 (Fla. 3d DCA 1980), where the court clarified that the Cox decision applies only to video taped lineups shown after the defendant is charged with a crime. The prosecution asked the court to replace the decisions in Cox and Gaitor with the rule established by the United States Supreme Court in United States v. Ash, 413 U.S. 300 (1973). Ash provides that the federal right to counsel under the Sixth Amendment does not require defense counsel’s presence during the display of photographic lineups. On appeal, Jones argued that the video lineup procedure at issue was unduly suggestive, and that Cox and Gaitor are good law and should be upheld.

The Third District, sitting en banc (a term that means the case was heard by all of the Third District judges instead of the normal three-judge panel), held that “a witness’ viewing of a video taped lineup is not a crucial or critical stage triggering a defendant’s right to have counsel present under either Section 16 of Article I of the Florida Constitution, or the Sixth Amendment of the federal constitution.” State v. Jones, 849 So. 2d 438, 440-41 (Fla. 3d DCA 2003). In so holding, the Third District followed Ash and receded from its earlier rulings in Cox and Gaitor.

Jones petitioned the Florida Supreme Court for discretionary review. In the briefs submitted to the Court, Jones, the petitioner, argues that the United States Supreme Court’s decision in Ash was wrongly-decided, and that a photographic or video display is a “critical stage” requiring counsel’s presence. Jones asserts that a stage is critical if the presence of counsel is necessary to protect the fairness of the trial itself, and that the lack of counsel during the display of a photographic or video taped lineup prevents the accused from protecting against undue suggestivity or unfairness.

In support of his argument, Jones cites psychological studies and social science research recounting the subtle suggestiveness of photographic or video displays, the likelihood that a misidentification from a photograph or video will be “frozen” in the witness’ mind, and the fact that honest identification mistakes are impossible to reveal through cross-examination of the witness. Jones also argues that it is impossible to reconstruct subtle elements of suggestivity for the jury to review in determining whether a given identification procedure was trustworthy. Finally, Jones argues, Floridians expect a higher degree of protection against misidentification and unfair trials under the state constitution than is required under the federal constitution. This desire is underscored by the recent trend of wrongful convictions revealed through the use of DNA evidence. The Center for Wrongful Convictions at Northwestern University School of Law describes the Florida cases involving Frank Lee Smith, Bradley Scott, and Joseph Green, all of whom were convicted based on eyewitness testimony, and subsequently exonerated.

The State counter argues that Ash was correctly decided, and that there is no right to counsel when a photographic or video taped lineup is shown to a witness because the defendant is not physically present for a “confrontation” with the State. The State also contends that counsel need not be present to guard against impropriety because photographic or video lineups are easy to recreate for a jury. According to the State, the Florida Supreme Court is not obligated to interpret the Florida Constitution in the same manner as the U.S. Supreme Court has construed the Sixth Amendment, but the view expressed in Ash is logically correct, and there is no intent on the part of Florida citizens to consider Florida’s right to counsel differently. The State further notes that the majority of jurisdictions around the country addressing this issue have adopted Ash in refusing to extend the right of counsel to either photographic or video tape identification procedures.

 For a more detailed explanation of the issues in the cases, review the attorneys’ briefs and the appellate decision in the case. In Jones v. State, there are three briefs: (1) the petitioner’s initial brief (Jones); (2) the respondent’s answer brief (the State of Florida); and (3) the petitioner’s reply brief. This case is scheduled for oral argument on April 21, 2004.