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On Behalf of | Apr 22, 2018 | Rules Of Evidence


Robert C. Bonsib, Esq & Megan E. Coleman, Esq.

Pre-trial photo identifications present challenges to a criminal justice system that seeks to make decisions regarding guilt or innocence based upon consideration of reliable evidence. History has taught us that the fact that a witness is 100% certain of an identification does not necessary equate to the witness being 100% accurate. At the same time, witness identification evidence is often the only evidence available to ensure that one who has committed a crime is brought to justice.

Over the years there have been efforts to improve the reliability of pre-trial identification procedures. Many police departments have begun to use the “double-blind” procedure for conducting pretrial identification procedures. In the “double-blind” procedure, a police officer possessing no knowledge about the facts of the case conducts the pre-trial identification procedure. With the “double-blind” procedure, the premise is that the police officer conducting the pretrial identification procedure cannot influence the eyewitness because the police officer does not know which photo, in the photo array, is the picture of the suspect. Of course, the “double-blind” procedure still requires that the police officers not share information between themselves so the integrity of police officers is still central to a reliable pre-trial identification process. Also, it has seems that in a six-photo array, the suspect almost inevitably seems to the number three or four photo – of course the witness is not likely to know that.

Courts have generally, and without great difficulty, been able to make a facial review of the photos in the photo array to determine if there are characteristics in the photo array that may be suggestive.

It is more difficult for a court to assess the manner in which the photo array was presented to the witness as the court must rely upon the testimony of police officers and the identification witnesses to assess the reliability and suggestiveness of such procedures.

Fortunately, more and more witness interviews are being conducted in interview rooms where the interview and identification procedure is video-recorded. In those circumstances, the prosecutor, the defense attorney and the reviewing court are in a excellent position to review the reliability of the process. A witness who is observed hesitating and then tentatively picking one photo before making an identification will demonstrate the witness’ lack of certainty. Alternatively, where the witness is seen to have immediately picked a photo, the identification will likely will be considered as more reliable and deserving of more weight (this assumes, of course, that the photo array is not suggestive on its face).

It has been some time since an appellate court has conducted a comprehensive review of the law pertaining to pre-trial identification procedures. In Small v. State, No. 916, Sept. Term, 2016, 2018 WL 1128744, (Md. Ct. Spec. App. Mar. 1, 2018), Judge Leahy conducts a comprehensive review of the law of pre-trial identification. This article discusses her opinion.

The Small case

Small was convicted of the street robbery and shooting of Ellis Lee (“Lee”), The facts essential to the identification procedure in Small were identified as:

1. Lee was waiting at a bus stop when a man who was covering part of his face with his T-shirt pointed a gun at Lee and told him to hand over his money.

2. Lee descripted his assailant as having a neck tattoo with a block cursive “M” in it.

3. Lee believed he had seen the man before and recognized his voice.

4. Later in the day, after being released from the hospital, Lee was shown two photo arrays.

5. In the first photo array, Small was the only person in the photo array with a neck tattoo.

6. During the showing of the first array Small advised the police officer that Small’s photo may be a photo of the one who shot him, but Lee said he was not sure.

7. In the second photo array all photos featured persons with neck tattoos of various content, however, Small’s photo was the only one of two photos in the array that had lettering in the tattoo.

8. Small’s photo was the only photo in the second photo array repeated from the first photo array and the only one with an “M”.

9. After being shown the second photo array, Lee told the police officer “This is the same tattoo and face I remember robbing me and the man I remember shooting me. I also remember him from coming into my job on two different occasions.”

On appeal, Small challenged the trial court’s denial of his motion to suppress the pre-trial identification. While, according to the Small opinion, the trial court was troubled by the suggestiveness of repeating the inclusion of Small’s photo in the second photo array, the trial court found by clear and convincing evidence that Lee’s identification of Small was reliable.

The Court of Special Appeals (“CSA”) held that the inclusion of Small’s photo in the first photo array showing the distinctive “M” tattooed in cursive on his neck – where no other person in the photo array had a visible neck tattoo – coupled with the fact the Small was the only person whose photo was repeated in the second array, rendered the identification procedure impermissibly suggestive. However, the CSA further held that the totality of the circumstances surrounding Lee’s identification of Small – including the unique features of his tattoo – made the identification sufficiently reliable to overcome the suggestive nature of the identification procedure.

Underscoring the caution and skepticism appropriate to eyewitness identification, the CSA further noted that approximately two weeks after Lee made his photo identification of Small, Lee called the investigating detective to report seeing a man that he believed was the one who had robbed and shot him. Lee was advised “that can’t be true. We already have the guy. You know, he has already confessed to it. You’re fine.” Additionally, at trial, Lee testified that he was then on 70% sure and not 100% of his identification. The trial court asked him what changed from the time of the original 100% certain initial identification to the later 75% certain identification, to which Lee responded, “I don’t even know.”

The law of pre-trial identification

In Small, the CSA first provides a concise review of the law applicable to a review of the suggestiveness and reliability of pre-trial identification procedures and stated as follows:

“Our review of the circuit court’s denial of the motion to suppress is limited ” ‘to the record of the suppression hearing[.]’ ” James v. State, 191 Md. App. 233, 251, 991 A.2d 122 (2010). We will not disturb the suppression court’s findings of fact and credibility determinations unless they are clearly erroneous, and we review the evidence and the inferences that may be reasonably drawn therefrom in the light most favorable to the prevailing party. McFarlin v. State, 409 Md. 391, 403, 975 A.2d 862 (2009). However, we consider whether a constitutional right has been violated independently, under a de novo standard of review, applying the law to the facts. State v. Andrews, 227 Md. App. 350, 371, 134 A.3d 324 (2016) (citing Williams v. State, 372 Md. 386, 401, 813 A.2d 231 (2002).

[Small] contends that the suppression court’s failure to grant his motion to suppress violated his right to due process. In support of this contention, [Small] cites Webster v. State, 299 Md. 581, 474 A.2d 1305 (1984), for the proposition, ” ‘[D]ue process protects the accused against the introduction of evidence of, or tainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedures.’ ” Id. at 599-600, 474 A.2d 1305 (quoting Moore v. Illinois, 434 U.S. 220, 227, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977).

The Due Process Clause is implicated “when law enforcement officers use an identification procedure that is both suggestive and unnecessary.” Perry v. New Hampshire, 565 U.S. 228, 238-39, 132 S.Ct. 716, 181 L.Ed.2d 694 (2012) (synthesizing Manson v. Brathwaite, 432 U.S. 98, 107, 109, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) and Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) ). A photographic identification procedure that is “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification[,]” should be suppressed. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

In Simmons, Justice Harlan, writing for the majority, forcefully described how photographic arrays, if conducted improperly, may give way to incorrect identifications:

A witness may have obtained only a brief glimpse of a criminal, or may have seen him under poor conditions. Even if the police subsequently follow the most correct photographic identification procedures and show him the pictures of a number of individuals without indicating whom they suspect, there is some danger that the witness may make an incorrect identification. This danger will be increased if the police display to the witness only the picture of a single individual who generally resembles the person he saw, or if they show him the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized…. Regardless of how the initial misidentification comes about, the witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen, reducing the trustworthiness of subsequent lineup or courtroom identification.

390 U.S. at 383-84, 88 S.Ct. 967 (emphasis added).

In determining whether to suppress an extra-judicial identification on due process grounds, Maryland suppression courts undertake a two-step inquiry:

The first is whether the identification procedure was impermissibly suggestive. 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 … [U]nless and until the defendant establishes that the identification procedure was in some way suggestive, the reliability of a witness’ identification is not relevant for due process purposes. (Kevin) Jones v. State, 395 Md. 97, 109-10, 909 A.2d 650 (2006). Thus, in order to suppress a pretrial identification, the accused person bears the burden “to make a prima facie showing of suggestivity at a suppression hearing.” Id. at 115, 909 A.2d 650. In other words, the accused “must show ‘some unnecessary suggestiveness in the procedures employed by police.’ ” Thomas v. State, 213 Md. App. 388, 417, 74 A.3d 746 (2013). An identification procedure that falls “[s]hort of that point[ ] … ‘is for the jury to weigh.’ ” Turner v. State 184 Md. App. 175, 185, 964 A.2d 695 (2009) (quoting Brathwaite, 432 U.S. at 116, 97 S.Ct. 2243).

Once an accused is successful in “showing that the procedure employed to obtain the identification was unduly suggestive[,] … the State must then prove, by clear and convincing evidence, that the independent reliability in the identification outweighs the ‘corrupting effect of the suggestive procedure.’ ” Gatewood v. State, 158 Md. App. 458, 475, 857 A.2d 590 (2004) (quoting Thomas v. State, 139 Md. App. 188, 208, 775 A.2d 406 (2001), aff’d, 369 Md. 202, 798 A.2d 566 (2002) ). The reliability analysis is not intended as a means to discover another ground for excluding the identification, but rather, an opportunity for the State to limit exclusion. Conyers v. State, 115 Md. App. 114, 120, 691 A.2d 802 (1997). Should the State fail to meet its burden, then any subsequent in-court identification by the person who made the unreliable pretrial identification is inadmissible, unless the State can show an independent source for the identification. Id. at 121, 691 A.2d 802.

2018 WL 1128744, at 7-8.

The Photo Array

Small challenged the photo array citing five main reasons why the photo array was impermissibly suggestive:

1. Small’s photo in the first array was the only photo with a visible tattoo.

2. Small’s photo in the first array was the only one to appear in the second array.

3. Small was the only individual with a “light complexion” in the second photo array.

4. The letter “M” in the tattoo was visible on the tattoo on Small’s neck in the first photo array and Small was only one of two individuals with tattoos on their necks that contained the letters in the second photo array.

5. Detectives failed to show photos of “filler suspects” who more closely resembled him – including the presence of neck tattoos – as required by Maryland Code, PS 3-506.1, which requires the inclusion of a least five fillers, in addition to the suspect, that resemble the description of the perpetrator given by the eyewitness in significant physical features.

The Small opinion then advises that suggestiveness in the context of a photo array arises “when the manner itself of presenting the array to the witness or the makeup of the array indicates which photograph the witness should identify.” Smiley v. State, 442 Md. 168, 180, 111 A.3d 43 (2015). The inquiry is not whether the police acted improperly, but whether there was police conduct that “tipped off” the witness making the identification “as to which photograph was the photograph of the assailant.” Conyers, 115 Md. App. at 121, 691 A.2d 802.

The CSA instructed that trial courts should examine the level of uniformity of physical features between persons in the photo array and that “similarity of features is critical.” It further observed, however, that the photo array “need not be composed of clones” and a suspect’s unique or unusual feature as described by a witness may be included in the array and the inclusion of a unique identifying mark described in detail by the identifying witness may aid in ensuring that an identification is reliable. The CSA referred to Sallie v State, 24 Md. App, 468, 472 (1975) in which it concluded a photo array was not unduly suggestive where the inclusion of a photo of a suspect who the victim described as having a diamond-shaped mark on his cheek was the only such photo in the array.

The CSA reviewed a series of cases in which a suspect’s photo was included in repeated photo arrays, noting that in some circumstances the procedure was deemed to not be unduly suggestive and in others the procedure was found to be suggestive. The CSA pointed to the statements from other courts that a repeated display of the suspect’s photo “is fraught with the possibility that the identification resulted from the procedure used and not the witness’ recollection” and “procedures involving the repeated display of a single photograph in successive arrays until a positive identification is obtained are viewed with great caution by the court[s].”

Applying these principles in Small’s case, the CSA concluded that the procedure employed was unduly suggestive. The CSA noted that Small was the sole individual with a neck tattoo in the first array and that the tattoo was featured prominently. It distinguished Small’s tattoo, from the diamond-shaped scar in the Sallie case, and observed that tattoos are more common, especially in current times. Including only one individual with a tattoo, when the police could have included others in the array with tattoos, was particularly suggestive in that Lee had described his assailant as having a tattoo. The CSA said that the filler photos should have included persons with tattoos – not necessarily the same tattoo – in the same general location as described by Lee. Even with Small being the only person in the first array with a tattoo, with respect to his review of that array, Lee was only “80 percent sure.” While the investigating officers did not tell Lee which picture to select, the Court emphasized that the repetition of Small’s picture, which featured a virtually identical shot of the tattoo, “essentially pointed out to Mr. Lee that the repeated picture was the ‘correct’ choice.

Having found that the identification procedure was unduly suggestive, the CSA then turned to consideration of the “reliability prong” of its analysis.

The Reliability Prong

Once a court determines that the identification was tainted by a high degree of suggestiveness, the test of admissibility becomes “whether under the ‘totality of the circumstances’ the identification was reliable even though the [procedure] was suggestive.” Webster, 299 Md. 581, 601, 474 A.2d 1305 (1984) (quoting Biggers, 409 U.S. at 199, 93 S.Ct. 375). Once the accused shows that the identification procedure was impermissibly suggestive, then the burden shifts to the State to show by clear and convincing evidence that, under a totality of the circumstances, that it was reliable. Smiley, 442 Md. at 180, 111 A.3d 43; Gatewood, 158 Md. App. at 475, 857 A.2d 590. Small, 2018 WL 1128744, at 15

Small and the State highlighted the factors each argued were relevant to the reliability analysis.

Small’s identified the follow factors:

1. Lee encountered the assailant late at night in a location with little lighting.

2. The assailant’s face was partially covered by a T-shirt.

3. Lee reported seeing someone on the street who he believed was the perpetrator, weeks after Small was already in custody.

4. Lee testified that his confidence in the correctness of his identification waivered throughout the process, dropping to “only 70 percent sure of his identification” shortly before the trial.

5. The two momentary interactions at Lee’s workplace did not rise to the “high degree of familiarity … to overcome an otherwise suggestive array.”

The State countered noting the following factors:

1. Lee’s opportunity to see and speak with Small on at least two prior occasions.

2. The physical proximity of Lee to his assailant during the alleged attempted robbery.

3. The accuracy of the description of Small’s tattoo.

4. The fact that the event was still fresh in Lee’s mind when he made the identification.

5. Lee’s testimony that he recognized the person who attacked him from two prior interactions at Staples and recognized his voice.

6. Lee did not rely solely on the photograph for making his identification.

7. The State also aruged that Lee’s equivocation during his pre-trial identification of Small went to the weight of the evidence, not to its admissibility, and did not justify exclusion of the second array.

The CSA underscored that the Supreme Court, in Brathwaite, instructed that “reliability is the linchpin in determining the admissibility of identification testimony[.]” and that that Court established a five-factor test that a court should consider in evaluating the reliability of a photo array identification and the likelihood of a misidentification. The factors are:

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

2. The witness’ degree of attention.

3. The accuracy of the witness’ prior description of the criminal.

4. The level of certainty demonstrated by the witness at the identification. 5. The length of time between the crime and the identification.

In Brathwaite, the Supreme Court also clarified that the Biggers factors are not intended to be exclusive because the reliability of an identification should be determined by the totality of the circumstances and by weighing the facts of each case.

Analysis of Biggers Factors

To resolve whether the identification in this case was sufficiently reliable to overcome the highly suggestive nature of the photo array, the CSA then examined the factors set out in Biggers, as well as Lee’s prior familiarity with Small and his initial description of Small’s unique tattoo.

Lee’s opportunity to view

The CSA concluded that Lee was able to see a portion of his attacker’s face, beard, hair, and “most importantly,” the tattoo on the side of his neck and that these facts weigh heavily in favor of reliability.

Degree of attention

Lee noted that when his attacker approached and demanded money, he “saw the gun first before [he] saw the guy connected.” The CSA stated that while the presence of the weapon may have affected Lee’s ability to concentrate on the appearance of the tattoo this determination is ultimately for the fact finder to weigh.

Accuracy of the description

Lee gave a detailed physical description of his assailant, including a detailed description of a portion of the neck tattoo, and recognized the voice of his assailant. The CSA concluded that these facts weigh in favor of reliability.

Level of certainty

The CSA considered that Lee’s level of certainty “constantly varied throughout the course of the investigation and up to the date of the trial.” The CSA concluded that “[o]verall, we conclude these facts weight somewhat against reliability.”

Length of time before identification

Lee described his assailant to police while his memory was “fresh” and in the second photo array less than ten hours later. The CSA concluded that these factors weigh in favor of reliability.

Lee’s prior familiarity with Small

The CSA said that the degree of a prior familiarity between a victim and the perpetrator is but one factor in the totality of the circumstances involved in an identification and, while a lesser showing of prior familiarity may require stronger indicia of reliability, a victim’s prior contact with his assailant is relevant even if the victim only had met the assailant a few times before the assault.

The CSA concluded that while Lee’s familiarity with Small, standing alone, may not have been sufficient to overcome the suggestive procedure in this case, it nevertheless bolsters the reliability of the identification when considered under the totality of the circumstances.

The presence of Small’s unique neck tattoo

Lee description of the tattoo on the neck of his assailant was detailed and specific and the tattoo on Small’s neck was consistent with that description. The CSA stated that “[t]he fact that [Lee’s] assailant and [Small] had the unique cursive block letter tattoo with an “M” made [Lee’s] identification ‘inevitable indeed, but also made it more rather than less reliable.”

The CSA concluded that Lee’s detailed familiarity with Small’s tattoo prior to the photo array made Lee’s identification more reliable.

The CSA’s conclusion

After completing its review of the totality of the circumstances presented in the record and, after noting Lee’s prior familiarity with Small, as well as the detailed description he provided of Small’s unique tattoo prior to the photo array, the CSA held that Lee’s identification of Small was sufficiently reliable to overcome the suggestive nature of the identification procedure and it affirmed the suppression court’s decision to deny the motion to suppress the second photo identification.

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