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Expert on Due Process – Andrew T. Bodoh, Esq. Quoted by Virginia Supreme Court


June 21, 2023 by Tom Roberts, Esq.

Virginia Supreme Court cites expert Andrew T. Bodoh, Esq. with the law firm of Thomas H Roberts & Associates, PC as authority on origins of "Due Process of Law"

Photo of Andrew T Bodoh, Esq.

In its June 1, 2023 decision affirming the conviction of a bank robber, the Virginia Supreme Court quoted at length Andrew T. Bodoh with the law firm of Thomas H. Roberts & Associates, PC as an authority on the origins of “due process of law” stating the following:

The Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution provide that no person shall be deprived “of life, liberty, or property, without due process of law.”  The phrase “due process of law” traces its origin to “[a] series of statutes enacted during Edward III’s reign.” Andrew T. Bodoh, The Road to “Due Process”: Evolving Constitutional Language from 1776 to 1789, 40 T. Jefferson L. Rev. 103, 113 (2018). These statutes “specified and updated the interests protected and the nature of the protections afforded under the Magna Carta’s law of the land and denial of justice clauses. These statutes are the original link between due process language and the Magna Carta.” Id. One of these statutes, from 1363, “interpreted the Magna Carta as prohibiting taking or imprisoning a man, or putting him out of his freehold, ‘without process of the law.’” Id. at 113-14

The Virginia Supreme Court rejected the argument by the bank robber that the Due Process Clause required the pre-screening of in-court identifications not withstanding the perils associated with eyewitness testimony.  A 1st time eye-witness identification of a defendant is permissible at trial.

Reasons the Virginia Supreme Court rejected the challenge to 1st time eye-witness identification at trial.

  1. Courts including the United States Supreme Court have not prohibited eye-witness identification of a defendant for the 1st time at court without a pre-screening process. A distinction is made between in court identification versus out of court suggestive or tainted identifications.
  2. The mechanism for determining reliability of evidence is generally the trial itself, subject to the right of cross examination and confrontation of witnesses.
  3. Construing the Due Process Clause is an interpretive exercise not a policy-making one.  The practice of in-court identification has existed continuously for centuries.
  4. The Neil and Manson v Brathwaite test by the US Supreme Court drawn from earlier judicial rulings and not from scientific research widely considered flawed should not be extended.
  5. Only a minority of courts have concluded that the Due Process Clause regulates eyewitness identification made for the first time in court. citing 4 United States v. Greene, 704 F.3d 298, 305-07 (4th Cir. 2013); United States v. Rogers, 126 F.3d 655, 658-59 (5th Cir. 1997); United States v. Archibald, 734 F.2d 938, 941-43 (2d Cir. 1984); State v. Dickson, 141 A.3d 810, 820-27 (Conn. 2016). Two of these federal decisions pre-date Perry. Additionally, the Supreme Court of Massachusetts has relied on “common law principles of fairness,” as opposed to the Due Process Clause, to impose a “good reason” requirement for identifications that are made for the first time in court. Commonwealth v. Crayton, 21 N.E.3d 157, 169 & n.16 (Mass. 2014) (cleaned up).

CONCLUSION: The court reasons “There are ways to address the problem of flawed eyewitness testimony, however, without tearing down our long-accepted understanding of the Due Process Clause to rebuild it on the shifting sands of social science. Of course, a defendant can make use of the traditional safeguards of the right to counsel, the right to present evidence, and cross-examination to expose mistaken eyewitness testimony.”

Thomas H Roberts & Associates, PC
105 S 1st Street,
Richmond, VA 23219


The materials are prepared for information purposes only.  The materials are not legal advice.  You should not act upon the information without seeking the advice of an attorney.  Nothing herein creates an attorney-client relationship.


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