Section 10.16 Impermissible Suggestivity in Photograph Identification

• Library: Criminal Practice 2012 Supp

2. (§10.16) Impermissible Suggestivity in Photograph Identification

The mere fact that a pretrial identification procedure is suggestive and unnecessary does not amount to a violation of the due process clause of the Fourteenth Amendment when the identification is otherwise reliable. See Manson v. Brathwaite, 432 U.S. 98 (1977); Simmons v. United States, 390 U.S. 377 (1968).

Missouri courts have been steadfast in their application of the five factors outlined in Brathwaite to determine the reliability of in-court identification. The factors to be considered include:

1. the opportunity of the witness to view the criminal at the time of the crime;

2. the witness’s degree of attention;

3. the accuracy of the witness’s prior description of the criminal;

4. the level of certainty demonstrated in the confrontation; and

5. the time between the crime and the confrontation.

The corrupting effect of the suggestive identification is weighed against these factors. In determining the admissibility of identification testimony, reliability rather than suggestiveness provides the linchpin in securing due process. State v. Robinson, 641 S.W.2d 423, 427 (Mo. banc 1982) (cited in State v. Motley, 740 S.W.2d 313 (Mo. App. E.D. 1987)). The reliability of the in-court identification testimony is to be assessed under the totality of the circumstances. State v. Tettamble, 746 S.W.2d 433 (Mo. App. S.D. 1988) (citing State v. Story, 646 S.W.2d 68, 71 (Mo. banc 1983)); State v. Charles, 612 S.W.2d 778, 780 (Mo. banc 1981), cert. denied, 454 U.S. 972 (1981); State v. Caldwell, 785 S.W.2d 98, 101 (Mo. App. S.D. 1990); State v. Twitty, 793 S.W.2d 561, 563 (Mo. App. E.D. 1990); State v. Vinson, 800 S.W.2d 444, 446 (Mo. banc 1990).

Dissimilarity in physical appearance alone is insufficient to establish impermissible suggestiveness. State v. Reasonover, 700 S.W.2d 178, 182–83 (Mo. App. E.D. 1985) (cited in State v. Walker, 755 S.W.2d 404 (Mo. App. E.D...