Suppress Identification

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The following was taken from a motion to suppress identification.  The original was drafted by Paul J. Notarianni in 2015.

The Defendant offers the following argument as to suppression of the identification.   A Defendant in a criminal matter is protected by due process against the introduction of evidence of, or tainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedures. (U.S.C.A. Const. Amend 14; Jones v. State,395 Md. 97, 107 (2006)).    The Supreme Court has recognized that improper use of  photographs by police may cause misidentifications.  (Simmons v. U.S., 390 U.S. at 383-84).  There is a two part test for inquiry of due process violations related to extra-judicial identifications.  (Jones v. State, 310 Md. 569, 577 (1987); Jones v. State 395 Md. 97, 109 (2006)).  The first is whether the identification procedure was impermissibly suggestive. (Jones v. State, 310 Md. 569, 577, 530 A.2d 743 (1987)).  If the answer is “no,” the inquiry ends and both the extra-judicial identification and the in-court identification are admissible at trial. If, on the other hand, the procedure was impermissibly suggestive, the second step is triggered, and the court must determine whether, under the totality of the circumstances, the identification was reliable. (Upshire v. State, 208 Md.App. 383 402 2012)). The Court of Special Appeals has recognized that an officer providing a single picture to a witness for identification purposes is impermissibly suggestive. (Id.)  “When the identification procedure is impermissibly suggestive, it is the prosecution’s burden to show  ‘that the in-court identification offered had a source independent of the illegal pre-trial confrontation or viewing. It must do this by clear and convincing evidence that the in-court identification is based upon observations of the suspect by the witness other than the confrontation or photographic identifications.’ ” (Id. quoting Smith and Samuels v. State, 6 Md.App. 59, 68, 250 A.2d 285 (1969)). “This [C]ourt has emphasized: ‘It is only where there is a very substantial likelihood of irreparable misidentification, to wit, a situation where the identification could not be found to be reliable, that exclusion would be warranted. Short of that point, the evidence is for the jury to weigh.’ ” (Id.  quoting Turner v. State, 184 Md.App. 175, 184, 964 A.2d 695 (2009)).

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