that the person previously identified by her was in jail on April 15, 1920. (M. R. 180.)
2. Devlin, a little over a month after the murders, thus testified:—
He (Sacco) looks very much like the man that stood up in the back seat shooting. (R. 274.)
"Q. Do you say positively he is the man?" and you answered: "A. I don't say positively." (R. 275.)
At the trial, over a year later, she had no doubt, and when asked: 'Have you at any time had any doubt of your identification of this man?" (R. 276) replied: "No." The obvious discrepancy of an identification reaching certainty by lapse of time, without any additional opportunity for verification, she explained thus:—
At the time there I had in my own mind that he was the man, but on account of the immensity of the crime and everything, I hated to say right out and out. (R. 276.)[1]
- ↑ The process by which casual observation of a stranger is in process of being translated into positive identification is illustrated in a recent New York case in which conviction for murder, based on tenuous identification, was reversed. In the course of his opinion the Chief Judge of the New York Court of Appeals wrote as follows:—
"Thus in a final analysis the conviction of defendant must basically rest upon the asserted similarity of his eyes to those of a man whom the witness momentarily saw looking at her through a window when she had no occasion to exercise a complete and careful scrutiny. That is a pretty small basis upon which to rest a conviction and, as we read the testimony of the witness as it proceeds from the friendly atmosphere of direct and redirect examination to the hostile one of cross-examination with its more exacting and insistent questions, it seems to us that she, acting upon a small foundation, has rather reasoned herself, conscientiously we have no doubt, into the belief that defendant is the man whom she saw at the farm and that her attempted identification is the result of a conclusion thus developed and clouded by more or less doubt and uncertainty rather than
