Eyewitness Identifications and the Due Process Clause

• Jurisdiction: Maryland

IV. Eyewitness identifications and the Due Process Clause

The Due Process Clause protects a defendant from being convicted based on an unreliable identification obtained through unnecessarily suggestive procedures. Moore v. Illinois, 434 U.S. 220, 227 (1977); Neil v. Biggers, 409 U.S. 188, 198 (1972). Unnecessarily and impermissibly suggestive identification procedures deprive the defendant of due process because of the likelihood of misidentification and wrongful conviction. See, e.g. Greene v. State, 469 Md. 156, 169 (2020).

The right to due process applies whether or not the right to counsel has attached. Generally speaking, there are three types of out-of-court identification procedures: lineups; show-ups; and photo arrays.

A. The two-step inquiry of suggestiveness and reliability

To determine whether an identification complies with due process, courts engage in a two-step process. In the first step, the defendant bears the burden of showing that the identification procedure was impermissibly suggestive. Small v. State, 464 Md. 68, 83 (2019). If the defendant fails to meet the burden of showing that the identification procedure was unduly suggestive, the court's inquiry ends, and the identification is admissible. Id.

If the identification is found to be impermissibly suggestive, the inquiry moves to the second step where the court must determine whether, based on a totality of the circumstances, the identification was reliable despite the suggestiveness. Manson v. Braithwaite, 432 U.S. 98, 106 (1977); Biggers, 409 U.S. at 200-01.

1. Impermissible Suggestiveness

Not all police misconduct renders an identification procedure impermissibly suggestive. As Judge Charles E. Moylan, Jr. writing for the Court of Special Appeals, explained:

Even if it were to be assumed that the police dragged a witness screaming into the police station, rudely shoved her down in front of a "mug" book containing a thousand photographs, and threatened her that if she did not pick out one of them within the hour they would shoot her on the spot, such behavior would no doubt be improper. It would not, however, be impermissibly suggestive. To do something impermissibly suggestive is not to pressure or to browbeat a witness to make an identification but only to feed the witness clues as to which identification to make. THE SIN IS TO CONTAMINATE THE TEST BY SLIPPING THE ANSWER TO THE TESTEE. All other improprieties are beside the point. There is no place in the appellate syllogism for undifferentiated angst. The appellant does not even make an argument that the police abetted Ms. English in playing

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