Section 10.3 Burden of Proof

• Library: Criminal Practice 2012 Supp

B. (§10.3) Burden of Proof

The defendant’s burden is to prove that the identification procedure was unnecessarily and impermissibly suggestive. Only then will the court consider the reliability of the identification by balancing the Neil v. Biggers, 409 U.S. 188 (1972), factors against the suggestiveness of the procedure. United States v. Thompson, 730 F.2d 82, 85 (8^th Cir. 1984), cert. denied, 469 U.S. 1024 (1984); State v. Hill, 839 S.W.2d 605 (Mo. App. W.D. 1992).

To prevail and suppress testimony when a showing of impermissible suggestivity exists, the defendant bears the burden of proving the unreliability of the testimony, which goes to the...