# Summitt v. Bordenkircher

> Court of Appeals for the Sixth Circuit · October 19, 1979 · 608 F.2d 247

URL: https://www.frixlaw.com/law-library/cases/8910456

## Case

- **Full name:** James Willard SUMMITT v. Donald E. BORDENKIRCHER, Warden, Kentucky State Penitentiary, Respondent-Appellee John Gregory WATKINS v. Donald E. BORDENKIRCHER, Warden, Kentucky State Penitentiary
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** October 19, 1979
- **Citations:** 608 F.2d 247
- **Precedential status:** Published
- **Opinion:** Dissent by Merritt
- **Judges:** Brown, Merritt
- **Cited by:** 34 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8910456

## Opinion text

MERRITT, Circuit Judge,
dissenting.
In each of these habeas corpus cases from Kentucky, there is a serious question concerning the reliability of the courtroom *254 identification of the defendant as the perpetrator of the crime. In both, the identification testimony constitutes the only substantial evidence linking the defendant with the crime. In both, the state trial judge denied the request of defense counsel for a hearing on the question out of the presence of the jury. In such circumstances, I would follow Judge Aldisert’s opinion for the Third Circuit in United States v. Driber, 546 F.2d 18 (1976), holding that due process requires a hearing out of the presence of the jury where serious identification questions are present. Otherwise, defense counsel is paralyzed in his efforts to defend his client. He is in the untenable position, as the Supreme Court noted in United States v. Wade, 388 U.S. 218, 241 , 87 S.Ct. 1926, 1939 , 18 L.Ed.2d 1149 (1967), of trying by cross-examination of the identification witness “to discover and reveal unfairness, while bolstering the . courtroom identification by bringing out and dwelling upon his prior identification.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8910456. Public record. Not legal advice.