This blog will discuss suggestive pre-trial identification.  Photographic identification procedures can violate a defendant’s due process rights if they are so impermissibly suggestive as to give rise to a substantial likelihood of misidentification.  Police may provide an improper suggestion when a witness is shown only one person.  This is because the witness is tempted to presume the photo is of the assailant/suspect.  If only one photo is shown in a photographic line-up, a motion may be filed by the defense in the appropriate case.
Upon the filing of a defense motion the next step is for the court to determine whether the witness has an independent basis for identifying the individual in the photo (other than that he or she was the only photo provided).  The following factors are considered in deciding whether there is an independent basis for identification:

  1. Prior relationship with or knowledge of the defendant;
  2. Opportunity to observe the offense;
  3. Length of time between offense and identification;
  4. Accuracy of description vs. defendant’s appearance;
  5. Previous proper identification/failure to identify the defendant;
  6. Pre-lineup identification lineup of another person;
  7. Nature of offense & victim’s age, intelligence, and psychological state;
  8. Special features of the defendant.

A recent Michigan Court of Appeals case, People v. Demarcus Quamaine Curry discussed suggestive pretrial identification.  In that case, defendant was charged and convicted following the robbery and nonfatal shooting of a man outside an apartment complex.  The victim arranged to purchase Vicodin from the defendant and after talking several times the two decided to meet.  The victim’s identification of the defendant was based on a single photograph of the defendant.  The defendant challenged this lineup on the basis it was suggestive.
The Court found that showing one photograph might have been impermissibly suggestive.  However, the inquiry continued on whether there was an independent basis for the identification.  In this case, the court found there was an independent basis, as the victim had a substantial opportunity to observe the defendant from a close distance; he observed the defendant in the early afternoon in broad daylight; the two had a face-to-face conversation; the victim accurately described defendant’s height, weight, and wardrobe; the victim identified the defendant within hours of the offense; and the victim never identified anyone else as the assailant.  Therefore, the court found there was a sufficient independent basis for the victim’s identification.
If you or a loved one have been charged with a criminal offense and were identified in a pretrial line-up, feel free to contact our office to discuss the details.
 

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