8.3 Suggestive Pretrial Identification Procedures

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

8.3 SUGGESTIVE PRETRIAL IDENTIFICATION PROCEDURES

8.301 Background. The Supreme Court's mandate that in certain circumstances an accused is entitled to be represented by counsel when confronted by eyewitnesses is not the only method by which the Court has attempted to control the use of eyewitness testimony. A defendant's due process right to a fair trial may be violated by "suggestive" pretrial identification procedures.

The constitutional mandate banning "suggestive" identification procedures applies at any stage of the proceeding and without regard to the nature of the eyewitness identification, including photographic identifications. Once it has been established that an unconstitutionally "suggestive" identification has occurred, it must be suppressed, and the witness's later identification will be treated as a "fruit of the poisonous tree."

8.302 The Standard. Due process is violated by a procedure that is "unnecessarily suggestive and conducive to irreparable mistaken identification." ³⁷ Despite numerous attempts to refine the standard, the concept remains difficult to apply because the primary evil to be avoided is the "very substantial likelihood of irreparable misidentification." ³⁸ This phrase was adopted as the standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification. ³⁹

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Deleting "irreparable" from the language serves as the standard for determining the admissibility of the out-of-court identification. ⁴⁰ It is the likelihood of misidentification that violates the defendant's right. ⁴¹ Suggestive confrontations are not approved because they increase the likelihood of misidentification; unnecessarily suggestive confrontations are similarly condemned because the increased chance of misidentification is gratuitous. ⁴² However, there is no per se rule banning eyewitness identifications simply because the procedure was "unnecessarily suggestive." ⁴³

8.303 Application of the Standard.

A. In General. Once a suggestive identification has occurred, the admissibility of the eyewitness testimony depends on a variety of factors. The court must determine whether, under the totality of the circumstances, the identification is reliable even though the procedure was suggestive. ⁴⁴ The factors to be considered in evaluating the likelihood of misidentification include: (i) the opportunity of the witness to view the criminal act at the time of the crime; (ii) the degree of attention the witness paid to the suspect; (iii) the accuracy of the witness's prior description of the suspect; (iv) the level of certainty demonstrated by the witness at the confrontation; and (v) the length of time between the crime and the confrontation. ⁴⁵ Even after a highly suggestive identification procedure, a court may admit eyewitness testimony if it determines that other factors point to the likelihood of reliability. ⁴⁶

B. Elements of Suggestiveness. The Supreme Court's decisions imply that some suggestive identification procedures are necessary and this must be taken into account in determining admissibility. ⁴⁷ On the other

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hand, when the suggestiveness was gratuitous or unnecessary, that fact may weigh heavily in the defendant's favor. ⁴⁸ This is so despite the Court's statement that it is the likelihood of misidentification that determines admissibility and that there is no per se rule of exclusion for unnecessarily suggestive identification procedures. ⁴⁹

A one-on-one confrontation between the accused and an eyewitness is usually impermissibly "suggestive." ⁵⁰ However, the Court also has indicated that there are some circumstances where this practice may be necessary and even beneficial to the accused. ⁵¹ Therefore, despite the fact that one-on-one confrontations have been widely condemned, there is no per se rule banning them. ⁵²

Suggestive confrontations also occur in the context of the traditional lineup or showup. The defense should consider not only the physical characteristics of the lineup participants but also any prompting or coaching by police that might suggest their belief in the guilt of the accused. There appears to be no rule, however, requiring that all lineup participants resemble one another. ⁵³ In fact, the Model Code of Pre-Arraignment Procedure takes the position that the inclusion of some persons in the lineup of markedly dissimilar appearance may be desirable since the accused will be effectively exonerated if the eyewitness identifies someone else. ⁵⁴ Finally, multiple identification opportunities, especially when the accused is the only common participant, may create impermissible suggestiveness. ⁵⁵

Photographic identification procedures are treated in the same fashion. A defendant seeking to suppress an out-of-court photographic lineup bears the burden of establishing both that the procedure was impermissibly suggestive and that this flaw created a substantial likelihood of irreparable

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misidentification. ⁵⁶ In...