By Robert C. Bonsib, Esq. & Megan E. Coleman, Esq.
In Reyes v. State, 257 Md. App. 596 (2023), Reyes was convicted by jury of attempted first-degree murder. The victim of the shooting, Daniel Bartley, made both a pre-trial and in-court identification of Reyes as the shooter. Reyes unsuccessfully moved to suppress both identifications contending that because Bartley was presented with a single-photo “photo array” that such a procedure was impermissibly suggestive.
The Appellate Court of Maryland (“ACM”) rejected Reyes’ argument and explained the different analysis required when the identification procedure is a “confirmatory” and not a “selective” identification.
The ACM defined both terms and explained that a “selective” identification occurs when an eyewitness observes an unknown perpetrator commit a crime and then views suspects in an effort to identify the perpetrator to law enforcement. This often occurs during a line-up or when a victim is asked to view a series of photographs to determine if the perpetrator is amongst those depicted in the line-up or photo array. In such an identification process, the witness has no independent experience with the suspect.
A “confirmatory” identification is one where the witness has prior familiarity with the suspect and is merely asked to confirm that a suspect is the person the witness knew from before the crime. The police show a photograph in an effort to confirm the identity of the suspect.
The ACM noted that its prior decisions have discussed confirmatory identifications made by displaying a single photograph to the witness. In State v. Greene, 240 Md. App. 119, 154-5 (2019), aff’d 469 Md. 156 (2020), Judge Moylan provided, as expected, a detailed and extensive review of the history of Supreme Court and other relevant opinions discussing when constitutional and due process concerns impact the admissibility of pre-trial and in-court identifications.
In its further discussion of the differences between the two types of identifications, the ACM notes that in the typical selective identification, the witness does not know the perpetrator from before the crime and any identification is based only upon the witness’ memory of the person’s characteristics, a memory that poses risks because of the fact that the witness might have obtained only a brief glimpse of the criminal or may have made observations under poor conditions. In such a circumstance, an impermissibly suggestive police procedure could have the effect of influencing a witness into mistakenly identifying an innocent person by giving the witness a clue about which suspect the witness should identify. Quoting from Simmons v. United States, 390 U.S. 377, 383-384 (1968) and Manson v. Braithwaite, 432 U.S. 98, 112 (1977), the ACM reminds that when a witness has only a weak memory of the perpetrator, an impermissible suggestion may even influence the witness’ memory itself as the witness could retain in his memory the photograph shown by the police rather than the person actually seen by the witness. Simmons, 390 U.S. 383-384. It continues from Manson that “usually the witness must testify about an encounter with a total stranger under circumstances of emergency or emotional stress” and “the witness’ recollection of the stranger can easily be distorted by the circumstances or by later actions by the police.” Manson, 432 U.S. at 112.
It is not that any impermissible suggestion automatically results in suppression of the identification. The key test is whether the identification procedure meets the threshold of being constitutionally “reliable.” That test is satisfied so long as any impermissible suggestion does not “give rise to a very substantial likelihood of irreparable misidentification.” Simmons, 390 U.S. at 384.
The ACM instructs and reminds of the two-step constitutional due process procedure that must be considered. First, did an impermissibly suggestive procedure, arranged by a state actor, procure the identification? Second, because of the impermissible suggestion, determine whether the identification is not constitutionally “reliable” – i.e., whether the identification procedure presents “a very substantial likelihood of misidentification.”
The burden shifts during this analysis. First, the defendant bears the burden of demonstrating “some unnecessary suggestiveness in the procedure employed by the police.” If the defendant offers evidence to show that the procedure was impermissibly suggestive, then the State must prove by clear and convincing evidence that the independent reliability in the identification outweighs the corrupting effect of the suggestive procedure. Bean v. State, 240 Md. App. 342, 355 (2019).
Some of the factors the Supreme Court set forth to aid in assessing reliability are:
(i) the opportunity of the witness to view the criminal at the time of the crime;
(ii) the witness’ degree of attention;
(iii) the accuracy of his prior description of the criminal, and
(iv) the level of certainty demonstrated at the time of the confrontation
The Identification Instruction at MPJI – Cr. 3:30 advises the jury to consider similar factors and instructs, in pertinent part, as follows:
You have heard evidence about the identification of the defendant as the person who committed the crime. You should consider the witness’ opportunity to observe the criminal act and the person committing it, including the length of time the witness had to observe the person committing the crime, the witness’ state of mind and any other circumstance surrounding the event. You should also consider the witness’ certainty or lack of certainty, the accuracy of any prior description, and the witness’ credibility or lack of credibility, as well as any other factor surrounding identification.
MPJI – Cr. 3:30.
It is important to also consider, however, that there has recently been much discussion and debate about how the degree of certainty of an eyewitness should be considered as a witness can honestly state that they are certain of the identification and yet be 100% wrong.
The ACM then distinguishes how the “confirmatory” identification does not suffer from the same degree of risks of impermissible suggestion as the “selective” identification. That is because in a “confirmatory” identification the witness knows the perpetrator from before the crime and thus the witness is not as vulnerable to suggestion as the “selective” identification.
In Reyes, the ACM determined that the identification procedure was “confirmatory” in that Bartley, although an eyewitness to the crime, did not perform any selection. Bartley simply recognized Reyes as someone he knew from having seen him before the crime and had advised the police that he knew him from having seen him before observing committing the crime and even told the police that he know Reyes as “Andy.”
In Reyes, the ACM cautioned, however, that there is more to assessing whether the “confirmatory” identification implicated due process concerns. In doing so, the Court must assess whether “as a matter of law, the witness is so familiar with the defendant that there is little to no risk that police suggestion could lead to a misidentification.” There must be sufficient familiarity to pass the due process threshold to be considered constitutionally reliable. Where the prior familiarity is not sufficient, then it must be analyzed as is required with a “selective” identification.
In assessing whether there was sufficient familiarity, the Court instructs that it must look to the “whole circumstances.” It reviews some of those circumstances, such as:
(i) the witness’ opportunity to view and interact with the suspect on prior occasions before the crime;
(ii) the duration and nature of the prior encounters;
(iii) the time elapsed between the crime and the prior viewings;
(iv) whether the witness and the suspect had any conversations;
(v) the witness’ behavior after the crime that might shed light on the witness’ prior familiarity with the suspect such as whether the witness told the police prior to being shown the suspect’s photograph that he had recognized the suspect as someone he knew.
The ACM continued that there will typically be sufficient familiarity where the suspect is a family member of long-time acquaintance of the witness as contrasted with a prior relationship that is “fleeting or distant.” A “fleeting” or “distant” prior relationship or brief encounter may not be sufficient to characterize the identification as “confirmatory” rather than “selective.”
Noting that the bar for sufficient familiarity is not high, the ACM then gave examples such as where the witness only knew the suspect for a month and did not know the suspect’s name or when an eyewitness tells an officer shortly after the crime that he or she knows the perpetrator and has seen him around.
In one instance a court found there was insufficient familiarity where the only evidence was nonspecific testimony from police officers that the witness said that he knew the defendant from the neighborhood, without more. In other cases cited in Reyes, the appellate court remanded the case for a further evidentiary hearing where the record was unclear as to prior familiarity or where the issue of familiarity was not adequately tested through cross-examination.
Before addressing the facts in Reyes, the ACM reviewed the standard of review with respect to the denial of a motion to suppress. It noted that it relies solely on the developed at the suppression hearing, in the light most favorable to the prevailing party.
While the appellate court will give great deference to the hearing judge’s determination and weighing of first-level findings of fact, unless determined to be clearly erroneous, issues of law with respect to whether a constitutional right has been violated, receive no deference. The appellate court will apply a de novo standard of review and will make its own independent constitutional appraisal by reviewing the law and applying it to the facts of the case.
The ACM held that the hearing judge properly denied Reyes’ motion to suppress. It concluded that although Bartley was both an eyewitness to and victim of the crime, he did not perform any selection. He simply recognized Reyes, rather than perceiving a stranger and trying to memorize descriptive details. And he promptly told such to the police.
When Bartley was shown Reyes’ photograph it was not to help Bartley select and identify Reyes, nor did it constitute a suggestion by the police about the identity of the perpetrator. Bartley had already told the police that “Andy” had shot him.
Reviewing the issue of “sufficient familiarity” the ACM noted that Bartley had known Reyes for approximately six months before the crime occurred and during that time observed Reyes several times and in a variety of settings, in at a home and at a restaurant. He could recognize Reyes’ voice and knew his first name was Andy. He also told police about a restaurant that Reyes frequented and where the police might obtain a photograph of Reyes. The police only became aware of Reyes’ identity because of the information provided by Bartley.
The ACM emphasized that the inquiry at a suppression hearing is to be limited to (1) whether the confirmatory identification was supported by sufficient familiarity, and if not, then (2) whether the identification should nonetheless be admitted as a selective identification. Other issues are for the jury, including the ultimate weight to be given to the identification itself, as well as the witness’s credibility and reliability with respect to the identification (rather than the witness’s prior familiarity with the suspect).
A Review and Refresher
In 2017 we wrote an article focusing on the law pertinent to pre-trial identification procedures. A portion of that article is repeated here as a review and refresher.
In Jones v. State, 395 Md. 97, 107–11 (2006) the Supreme Court of Maryland discussed the concerns and policy considerations relevant to pre-trial identification procedures noting that the use of photographic displays by the police to identify suspects is used widely in the United States, and when conducted properly, has been held to be admissible in evidence. See Simmons v. United States, 390 U.S. 377 (1968). The Simmons Court noted that “[d]espite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs.” Id. at 384. Nonetheless, the defendant is protected by due process “against the introduction of evidence of, or tainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedures.” Moore v. Illinois, 434 U.S. 220, 227 (1977), quoted in Webster v. State, 299 Md. 581, 599–600 (1984).
In Simmons, the Supreme Court recognized that improper use of photographs by police may sometimes cause witnesses to make misidentifications:
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. The chance of misidentification is also heightened if the police indicate to the witness that they have other evidence that one of the persons pictured committed the crime. 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.
The Simmons Court declined to prohibit categorically the use of photographs, either as a matter of constitutional law or in the exercise of its supervisory power, holding as follows:
[E]ach case must be considered on its own facts, and … convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.
Id. at 384.
In Jones v. State, 310 Md. 569 (1987) (overruled on different grounds), the Supreme Court of Maryland addressed issues related to a motion to suppress an extra-judicial identification and the due process protections against admissibility of evidence derived from out-of-court, suggestive identification procedures. The Jones Court reviewed the two-step inquiry for due process challenges to extra-judicial identifications. The first is whether the identification procedure was impermissibly suggestive. Id. at 577. If the answer is “no,” the inquiry ends and both the extra-judicial identification and the in-court identification are admissible at trial. Id. 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. Id. In the context of a pre-trial photo identification, unless 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. Id. at 578.
In Smith and Samuels v. State, 6 Md. App. 59 (1969), Judge Orth discussed the relative burdens on each party to a motion to suppress identification evidence. He pointed out that the initial burden of going forward, and of persuasion, rests upon the defendant. He wrote as follows:
At the hearing on the issue raised by the challenge the burden is on the defendant to show, prima facie, that the pre-trial confrontation or viewing of photographs was illegal, and if he so shows, the burden shifts to the State to show by clear and convincing evidence that it was legal. If the court finds that the State has met its burden and that the pre-trial confrontation or viewing was legal, an in-court identification by the witness present at the pre-trial confrontation or viewing is admissible as substantive evidence. And if such witness made a pre-trial identification, his testimony to that effect is so admissible. And, the testimony of a third party present when the pre-trial identification was made is so admissible provided the out-of-court declarant is at the trial and subject to cross-examination; whether or not he makes an in-court identification. If the court finds that the pre-trial confrontation or viewing was illegal, any and all evidence of the pre-trial identification is per se inadmissible. The burden is then on the State to establish 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. at 68.
In Smiley v. State, 442 Md. 168, 178–85 (2015), the SCM re-affirmed the procedure discussed in Jones and then further advised that suggestiveness can arise during the presentation of a photo array when the manner itself of presenting the array to the witness or the makeup of the array indicates which photograph the witness should identify. See also Conyers v. State, 115 Md. App. 114, 121 (1997), cert. denied, 346 Md. 371 (1997) (“The sin is to contaminate the test by slipping the answer to the testee.”) (emphasis omitted).
In a case in which the Supreme Court concluded that a photo array was not impermissibly suggestive, the SCM explained that a photo array “ ‘to be fair need not be composed of clones.’ ” Bailey v. State, 303 Md. 650, 663 (1985) (quoting Webster v. State, 299 Md. 581, 620 (1984)). In Bailey, the defense alleged that the photo array shown to the victim was impermissibly suggestive because the men in four of the six photographs did not resemble Bailey. The SCM concluded that the array was not impermissibly suggestive, because the mug shots that comprised the array reflected a number of similarities, to include: each man was photographed from the same camera angle; each man had the same photo card around his neck, the text of which had been blacked out; each individual was a young black male; each individual had close-cropped hair; several of the men had slight mustaches, though none was bearded; the men wore different styles of casual shirts; and none of the individuals had any unusual features.
In a subsequent case, Evans v. State, 304 Md. 487 (1985), the SCM held that the identification procedure was impermissibly suggestive when only a single photograph was presented to the witness, under circumstances that were not exigent.
In State v. Greene, 240 Md. App. 119, 154-5 (2019), aff’d 469 Md. 156 (2020), which is referred to on a number of occasions the Reyes opinion, Judge Moylan used the Wade–Gilbert–Stovall trilogy—United States v. Wade, 388 U.S. 218 (1967); Gilbert v. California, 388 U.S. 263 (1967); and Stovall v. Denno, 388 U.S. 293 (1967) – to provide a roadmap to the historical development of the constitutional and due process principles that now govern issues regarding the admissibility of identification procedures. The Greene opinion concludes by noting that “[a]fter a thorough and extended review of the opposing approaches, the Supreme Court opted for ultimate reliability instead of for exclusion.” The Manson Court instructed that “reliability is the linchpin in determining the admissibility of identification testimony for both pre- and post-Stovall confrontations.” 432 U.S. at 114. The factors to be considered are set out in Biggers, 409 U.S. at 199–200. These include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. Greene, 240 Md. at 144.
For a full understanding of the development of the law in this area reviewing the opinion in Greene is highly recommended.