A criminal defendant convicted of various gun crimes in relation to a shooting claimed on appeal that a photographic array (array) presented by police to the victim was unnecessarily suggestive and his identification (ID) was not reliable, thus the trial court erred in denying his motion to exclude it from evidence.

The Case

After the shooting, officers arranged an array “comprised of eight photographs of white males who were similar in appearance to the defendant.” They presented it to the victim in the hospital and asked whether he recognized anyone. An officer told the victim that “there could be someone in there that you might recognize, and there may not be.” Upon viewing the array, the victim immediately pointed to the defendant’s photograph and began to shake and cry. He stated he was “100 percent certain” that the defendant was the man who shot him.

Thereafter, the defendant filed a motion to suppress the ID, which the court denied. The court reasoned that “the photo array procedure was proper both in its substantive quality as well as the way it was presented to the witness. … [T]here is nothing in the record to establish any suggestiveness.”

On appeal, the defendant argued that the procedure was unnecessarily suggestive. Officers did not tell the victim that the defendant’s picture may not be in the array, and did not have any physical description on which to compile the photographs. In addition, he claimed that the ID was unreliable because the incident was over quickly, the victim’s intoxication impacted his ability to see clearly, and the victim had morphine in his system at the time of the ID.

The Defendant’s ID Reliability

In a case such as this, a court must determine whether a chosen ID procedure was “unnecessarily suggestive.” A procedure will not be invalidated “unless the police expressly indicate that a suspect is included in the array.” If a court finds this has occurred, it must then establish whether the ID was nonetheless reliable based on the totality of the circumstances. A defendant must prove both determinations by the court were incorrect to succeed on his claim. If the reviewing court finds that the procedures were not unnecessarily suggestive, it will not inquire as to the ID reliability.

In this case, the Appellate Court concluded that the ID was not unnecessarily suggestive. It found the officer’s statement “serves a purpose similar to that of an instruction that the assailant may not be in the array.” Such an instruction, though approved by the State Supreme Court, is not required. In addition, police did not indicate expressly that the defendant was included, only that “there could be someone in there that you might recognize, and there may not be.” Therefore, the array was not unnecessarily suggestive, and because the defendant failed to prove this determination was incorrect, the Court declined to address his ID reliability argument.

Written by Lindsay E. Raber, Esq.

Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.