Page 1 – MOTION TO SUPPRESS UNRELIABLE “EYEWITNESS IDENTIFICATION”

Thomas K. Coan, OSB #89173

tom@tomcoan.com

Attorney at Law

1001 SW Fifth Ave., Suite 1400

Portland, OR 97204

(503) 221-8736

Attorney for Defendant Santilli

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON

UNITED STATES OF AMERICA,

Plaintiff,

vs.

PETER SANTILLI,

Defendant.

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Case No. 3:16-cr-00051-BR

MOTION TO SUPPRESS 

UNRELIABLE “EYEWITNESS 

IDENTIFICATION” 

1. Motion

Defendant Peter Santilli, through his attorney, Thomas K. Coan, moves the Court 

for an order excluding the identification testimony of government witness Kevin Johnson 

pursuant to Federal Rules of Evidence 104(b), 602, and 701.

2. Certification of Counsel

Undersigned counsel certifies that he provided the government with a video 

showing Santilli in Ohio on December 22, 2015, at the time he was reportedly “identified” 

by Kevin Johnson. Counsel conferred with AUSA Ethan Knight about this matter and 

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provided, and Mr. Knight indicated that, given this new information, the Government 

would investigate this matter further. 

3. Introduction

At issue is witness Kevin Johnson’s purported identification of Mr. Santilli as 

having been at a meeting of “occupiers” in Burns, Oregon, that reportedly occurred on the 

Tuesday prior to Christmas, December 22, 2015. Johnson attended the meeting, and at the 

time Johnson saw the person he later said was Mr. Santilli, he did not know the identity of 

the person; some other, unnamed individual told Johnson this person was Santilli. 

Objective evidence shows that Santilli was in Ohio on December 22, 2015 and that he did 

not arrive in Oregon until December 30, 2015. 

Johnson’s identification is based on unreliable hearsay. At some time after that 

pre-Christmas meeting, Johnson asked an unnamed third party who someone was, and that 

third party identified this person to Johnson as Mr. Santilli.1 It is unclear if this 

identification was made by pointing out someone who was present or by describing 

characteristics. Johnson based his later “identification” of Mr. Santilli as the person at the 

pre-Christmas meeting on the purported knowledge of this third party. 

The defense recognizes that without improper government conduct, due process 

does not require the court to screen eyewitness evidence for reliability. Perry v. New 

Hampshire, 132 S. Ct. 716, 728 (2012)2; Benjamin v. Gipson, No. 12-56664, 2016 WL 

 

1 Since we do not know the identity of the person from whom Johnson received this wrong 

information, we do not know whether it was a law enforcement officer or not. 

2 Justice Sotomayor, in dissent, emphasized the need to ensure that eyewitness 

identification be scrutinized even without improper state action: “The empirical evidence 

demonstrates that eyewitness misidentification is the single greatest cause of wrongful

convictions in this country. Researchers have found that a staggering 76% of the first 250 

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683131, at *2 (9th Cir. Feb. 18, 2016) (citing Perry) (“Although Angelica’s identification 

was exceedingly unreliable, courts suppress eyewitness identifications only when they are 

the product of improperly suggestive conduct by the police.”). However, even though due 

process may not confer a right to the pretrial exclusion of unreliable eyewitness

identification, other grounds exist to exclude Johnson’s (mis)identification of Mr. Santilli. 

Johnson’s identification is not admissible as it is not based on his personal knowledge, is 

not conditionally relevant, and is not rationally based on his first-hand perceptions or 

helpful to the trier of fact. 

A. Johnson’s identification of Mr. Santilli is not based on his personal 

knowledge.

“A witness may testify to a matter only if evidence is introduced sufficient to 

support a finding that the witness has personal knowledge of the matter. Evidence to prove 

personal knowledge may consist of the witness’s own testimony. . . .” FRE 602. “[T]he 

personal knowledge requirement of Rule 602 applies at two levels: first, the witness who 

testifies must have personal knowledge of the making of the out-of-court statement, and 

second, the person who made the out-of-court statement must have had personal 

knowledge of the events on which he based his statement.” United States v. Owens-El, 

 

convictions overturned due to DNA evidence since 1989 involved eyewitness 

misidentification. Study after study demonstrates that eyewitness recollections are highly 

susceptible to distortion by post event information or social cues; that jurors routinely 

overestimate the accuracy of eyewitness identifications; that jurors place the greatest 

weight on eyewitness confidence in assessing identifications even though confidence is a 

poor gauge of accuracy; and that suggestiveness can stem from sources beyond policeorchestrated procedures.”

 Perry v. New Hampshire, 132 S. Ct. 716, 738-39 (2012)

(Sotomayor, J., dissenting) (footnotes and quotations omitted).

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889 F.2d 913, 915 (9th Cir. 1989) (resolution of personal knowledge “determines the 

admissibility of . . . [the] out-of-court identification of Owens.”). 

It is this second level that is at issue here: The government, as the proponent of the 

testimony, cannot show that the third party who identified Mr. Santilli to Johnsons had any 

personal knowledge of Mr. Santilli’s identity. If the third party did not have personal 

knowledge of the identity of Mr. Santilli, Johnson’s testimony regarding the identity of Mr. 

Santilli is also inadmissible. See United States v. Owens, 789 F.2d 750, 754 n.2 (9th Cir. 

1986), rev'd on other grounds, 484 U.S. 554 (1988) (applying reasoning). Because 

Johnson’s personal knowledge is entirely dependent on the third party’s knowledge, 

Johnson lacks sufficient personal knowledge of Mr. Santilli’s identity and he is 

incompetent to testify with respect to that matter and that portion of his testimony should 

be excluded.

Similarly, Johnson’s identification of Mr. Santilli is not conditionally relevant. 

“When the relevance of evidence depends on whether a fact exists, proof must be 

introduced sufficient to support a finding that the fact does exist. The court may admit the 

proposed evidence on the condition that the proof be introduced later.” FRE 104(b). 

Here, like to the 602 issue, the problem for the government is that, without 

evidence that the third party accurately identified Mr. Santilli, Johnson’s testimony on this 

point is irrelevant. 

B. Johnson’s identification of Mr. Santilli is not rationally based on his firsthand perception. 

To be admissible lay opinion testimony, it must be “rationally based on the 

witness’s perception” and must be helpful to the trier of fact. FRE 701. “We do not 

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require a showing of both sustained contact and special knowledge as prerequisites to a lay 

witness giving identification testimony. Instead of any particular amount of sustained 

contact, we require a lay witness to have sufficient contact with the defendant to achieve a 

level of familiarity that renders the lay opinion helpful.” United States v. Henderson, 68 

F.3d 323, 326 (9th Cir. 1995) (analyzing identification testimony under FRE 701).

Here, Johnson’s identification was not based on his perception of the meeting 

attendee being Mr. Santilli. His identification is instead based on the third party’s 

perception. Because his perception is based on the opinion of a third party, it is not helpful 

to the trier of fact in determining if Mr. Santilli was in fact present at that meeting. 

CONCLUSION

For the above-stated reasons, this Court should grant Mr. Santilli’s motion and 

order that the identification testimony of Johnson is inadmissible at trial.

Dated this 13th day of June 2016.

Thomas K. Coan3

Thomas K. Coan, OSB 89173

Attorney for Defendant

 

3 Attorney Emily Elison provided substantial assistance with this memo.

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