Pretrial Identification Using a Photo Array Triggers Constitutional Issue

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Recently, I represented a client who was facing multiple burglary charges in Prince George's County Circuit Court. He was arrested after the victim picked his photo out of a photo array. The materials provided to me by the State through discovery cast doubt on the reliability of the victim's pretrial identification of the suspect and the procedure used by the Prince George's County police.

The Constitutional right to due process forbids any pretrial identification procedure that is unnecessarily suggestive and conducive to irreparable mistaken identification. All lineups and showups must be conducted in a fair and impartial manner. Suggestivity is evaluated by courts under the totality of the circumstances surrounding the pretrial identification. Factors to be considered in evaluating the reliability of an identification are:

  • The witness's opportunity to view the criminal at the time of the crime
  • The witness's degree of attention
  • The accuracy of the witness's prior description of the criminal
  • The level of certainty demonstrated by the witness at the confrontation
  • The length of time between the crime and the confrontation
  • The corrupting effect of the suggestive identification

In my client's case I noticed several red flags immediately after reviewing discovery. First, the burglary occurred at night. I suspected that the home was not well lit (I would later discover that the only light on was the television). Second, the witness's description of the suspect was limited to an 18 year old African American male wearing a black coat. Third, the procedure used by the Prince George's County police was unduly suggestive.

Law enforcement should follow guidelines when conducting a photo array. The photo array should include the suspect and other individuals similar in appearance to the suspect; the witness should be presented with at least six different photos; there should be a double-blind administration (the person conducting the photo array should not be aware of who the actual suspect is); the witness should be given thorough instructions; and photos should be viewed sequentially not simultaneously. The victim in my client's case was presented with six photo's. Out of the six photo's only two of the men depicted were wearing black coats. One of them was my client. There was also no indication in the discovery material as to how my client was determined to be a suspect nor did the discovery material show that the police followed any type of procedure when conducting a photo array. As a result of my analysis I filed a Motion to Suppress the Pretrial Identification with the Circuit Court for Prince George's County.

The Motion Hearing was continued several times. Once because of a family emergency and once because of flooding (a Hicks Date issue was starting to come into play but that is a story for another day). Eventually, the State prepped the witness for the Motions Hearing. The State's Attorney asked the witness the same exact questions I would have asked if given the opportunity. What I suspected was true. The witness's identification of my client was due to the facts that he was depicted in a black coat and had darker skin then the men in the other photos. In addition, his opportunity to view the suspect was in a poorly lit room for a short period of time.

Throughout the entire process several plea offers were made by the State. My client was facing the possibility of several years behind bars. My client maintained his innocence. If the motion to suppress was not filed, the pretrial identification of my client by the witness could have been entered into evidence by the State. Instead, because the issue was brought to the State's attention, and the prosecutor agreed that the pretrial identification was unduly suggestive, the charges were dropped. If you or someone you know is charged with a crime or serious traffic offense contact the Prince George County criminal defense attorneys and DUI lawyers at Portner & Shure.

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