9.13Motion to Suppress Identification of Defendant
Identification testimony is admissible unless a pretrial identification procedure was impermissibly suggestive; however, even if a pretrial identification procedure was impermissibly suggestive, identification testimony is admissible if it did not create a substantial risk of misidentification considering the totality of the circumstances. Manson v Brathwaite, 432 US 98, 110, 114 (1977); Neil v Biggers, 409 US 188, 199-200 (1972). “‘[D]ue process protects the accused against the introduction of evidence of, or tainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedures.’” People v Hickman, 470 Mich 602, 607 (2004), quoting Moore v Illinois, 434 US 220, 227 (1977). ”In order to sustain a due process challenge, a defendant must show that the pretrial identification procedure was so suggestive in light of the totality of the circumstances that it led to a substantial likelihood of misidentification.” People v Kurylczyk, 443 Mich 289, 302 (1993). Generally, once the defendant shows an impermissibly suggestive pretrial identification, testimony about the identification is inadmissible at trial. Id. at 303.
“[E]vidence of an unnecessary first-time-in-court identification procured by the prosecution—a state actor—implicates a defendant’s due-process rights in the same manner as an in-court identification that is tainted by an unduly suggestive out-of-court identification procedure employed by the police.” People v Posey, ___ Mich ___, ___ (2023) (vacating the portion of the Court of Appeals’ opinion which held “that the reliability criteria could not be applied given that there was no improper law-enforcement activity and no pretrial identification of defendant obtained through an unnecessarily suggestive pretrial process”). “Because the same due-process rights are affected, trial courts must consider reliability factors such as those at issue when an in-court identification is tainted by an unduly suggestive out-of-court identification procedure.” Id. at ___. In Posey, the Michigan Supreme Court held that due-process rights are “implicated when the prosecution—another agent of the state—conducts an unnecessarily suggestive in-court law-enforcement procedure by obtaining an in-court identification of a defendant by a witness who was unable to identify a defendant at any point prior to that identification.” Id. at ___ (extending “the due-process based preadmissibility screening protections from [People v Gray, 457 Mich 107, 115-116 (1998), and People v Kachar, 400 Mich 78, 95-96 (1977)] to witness identifications of a defendant that take place for the first time at trial”).
To determine if a witness has an independent basis for an in-court identification, a court should evaluate the following factors:
”1. Prior relationship with or knowledge of the defendant.
2. The opportunity to observe the offense. This includes such factors as length of time of the observation, lighting, noise or other factor affecting sensory perception and proximity to the alleged criminal act.
3. Length of time between the offense and the disputed identification. . . .
4. Accuracy or discrepancies in the pre-lineup or show-up description and defendant’s actual description.
5. Any previous proper identification or failure to identify the defendant.
6. Any identification prior to lineup or showup of another person as defendant.
7. [T]he nature of the alleged offense and the physical and psychological state of the victim. . . .
8. Any idiosyncratic or special features of defendant.” Kachar, 400 Mich at 95-96 (alteration in original).
“[T]rial court[s] should be aware of the benefits of conducting a Wade[1] hearing when identification is an issue.” People v Baker, 103 Mich App 255, 258 (1981). “Where the risk of a tainted in-court identification is alleged, this procedure is a useful tool to aid the trial court’s determination of whether an independent basis for that identification exists.” Id.“An appellate court reviews a trial court’s determination following a Wade hearing by examining the totality of the circumstances surrounding the challenged pretrial identification and determining whether those procedures were so impermissibly suggestive that they gave rise to a substantial likelihood of misidentification.” People v Hampton, 138 Mich App 235, 238 (1984).
If a pretrial identification procedure was unduly suggestive, in-court identification of the defendant at trial is inadmissible as the fruit of the illegal procedure unless the prosecution establishes by clear and convincing evidence (at a separate evidentiary hearing held outside the presence of the jury) that the in-court identification is based on observations of the suspect independent of the illegal pretrial identification. Gray, 457 Mich at 115.
“Given the scope of human diversity,” a witness is not required to “accurately guess the age of another person—at least, one who is neither obviously a child nor obviously a senior—with any more precision than a decade or so, especially on the basis of a single visual interaction with little context from which an age could otherwise be deduced.” People v Ratcliff, 299 Mich App 625, 629 (2013), vacated in part on other grounds 495 Mich 876 (2013)2 (a robbery victim’s statement that the perpetrator “appeared to be in his twenties,” where the defendant was actually 17, did not render the identification “inherently unreliable or implausible”).
“Any discrepancy between [a witness’s] initial description and [a] defendant’s actual appearance is relevant to the weight of such evidence, not to its admissibility.” People v Davis, 241 Mich App 697, 705 (2000).
Absent an intelligent waiver by the defendant, counsel is required to be present at a lineup. People v Frazier, 478 Mich 231, 244 n 11 (2007), citing Wade, 388 US at 237. However, “the right to counsel attaches only to corporeal identifications conducted at or after the initiation of adversarial judicial criminal proceedings.” Hickman, 470 Mich at 603. In Hickman, 470 Mich at 610, the challenged identification took place “on-the-scene” and before the initiation of adversarial proceedings; therefore, counsel was not required. The Michigan Supreme Court’s decision in Hickman overruled its previous decision in People v Anderson, 389 Mich 155 (1973), where “the right to counsel was extended to all pretrial corporeal identifications, including those occurring before the initiation of adversarial proceedings.” Hickman, 470 Mich at 605. However, “identifications conducted before the initiation of adversarial judicial criminal proceedings could still be challenged” on the basis that a defendant’s due process rights were violated by unnecessarily suggestive procedures. Id. at 607.
The defendant was not entitled to a corporeal lineup with counsel rather than a photographic lineup where he was in custody for another offense at the time of the lineup; under Hickman, 470 Mich at 607, “a defendant’s right to counsel ‘attaches only to . . . [an] identification conducted at or after the initiation of adversarial judicial proceedings[,]’” and adversarial proceedings for the subject offense had not yet been initiated when the photographic lineup occurred. People v Perry, 317 Mich App 589, 596-597 (2016) (extending the reasoning of Hickman, 470 Mich at 603-604, 607-609—which addressed a corporeal identification—to a photographic lineup).
There is no right to counsel at precustodial investigatory photographic lineups. People v Kurylczyk, 443 Mich 289, 302 (1993). In Hickman, 470 Mich at 609 n 4, the Michigan Supreme Court declined to address whether a defendant has the right to an attorney during a photographic lineup after the initiation of adversarial judicial proceedings, because Hickman involved a corporeal identification conducted before the initiation of adversarial judicial proceedings.
There is no right to have counsel present at a post-lineup interview of a witness. People v Sawyer, 222 Mich App 1, 3-4 (1997).
The prosecution has the burden of proving by clear and convincing evidence that the defendant waived his or her right to counsel. People v Daniels, 39 Mich App 94, 96-97 (1972). Additionally, “for identifications made at a confrontation out of the presence of [the] defendant’s attorney, the burden is on the prosecution to show fairness.” People v Young, 21 Mich App 684, 693-694 (1970). “When counsel is present at the lineup, the burden is on the defendant to prove [that] the lineup was impermissibly suggestive.” People v Morton, 77 Mich App 240, 244 (1977).
C.Evaluating a Lineup’s or Showup’s3 Suggestiveness, Necessity, and Reliability
In determining whether to suppress an identification procedure, the court should first determine whether the procedure was suggestive. See People v Sammons, 505 Mich 31, 41 (2020). If the procedure was suggestive, the next inquiry is whether it was necessary. See id. at 47. Finally, a court should evaluate the reliability of the procedure; even if the procedure was unnecessarily suggestive, “the evidence it produce[s] could still be admissible” unless it “created a substantial likelihood of misidentification.” Id. at 49 (quotation marks and citation omitted). “Exclusion of evidence of an identification is required when (1) the identification procedure was suggestive, (2) the suggestive nature of the procedure was unnecessary, and (3) the identification was unreliable.” Id. at 41.
A lineup may be so suggestive and conducive to irreparable misidentification that an accused is denied due process of law. Stovall v Denno, 388 US 293, 301-302 (1967). “[D]ue process concerns arise . . . when law enforcement officers use an identification procedure that is both suggestive and unnecessary.” Perry v New Hampshire, 565 US 228, 238-239 (2012). When the police use such a procedure, “due process requires courts to assess, on a case-by-case basis, whether improper police conduct created a ‘substantial likelihood of misidentification.’” Id. at 239, quoting Neil v Biggers, 409 US 188, 201 (1972).
A court must consider the totality of the circumstances to determine whether an identification procedure is fair. People v Kurylczyk, 443 Mich 289, 311-312 (1993). Nonexhaustive factors the court should consider when determining whether an unnecessarily suggestive identification is reliable include: “(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 his prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and the confrontation.” Sammons, 505 Mich at 51 (quotation marks and citation omitted).
“[T]he Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement.” Perry, 565 US at 238. Rather, “[w]hen no improper law enforcement activity is involved, . . . it suffices to test reliability through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at postindictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt.” Id. at 233, 234, 240 (where an eyewitness, in response to a police officer’s request for a more specific description of the perpetrator of a theft, pointed out her window at the petitioner, who was standing near another officer, the trial court did not err in denying the petitioner’s motion to suppress the identification without first conducting a preliminary assessment of its reliability; no such inquiry was required because “law enforcement officials did not arrange the suggestive circumstances surrounding [the] identification”).
•Physical Differences of Lineup Participants
“‘Physical differences among the lineup participants do not necessarily render the procedure defective and are significant only to the extent that they are apparent to the witness and substantially distinguish the defendant from the other lineup participants.’” People v Craft, 325 Mich App 598, 610 (2018), quoting People v Hornsby, 251 Mich App 462, 466 (2002). “Generally, physical differences affect the weight of an identification, not its admissibility.” Craft, 325 Mich App at 610 (holding that defendant had not met his burden to show entitlement to a Wade4 hearing). Identification of the defendant was not impermissibly suggestive merely because “there was some variance between the participants’ heights and weights” when defendant ranked “somewhere in the lower-middle of the sample[.]” Craft, 325 Mich App at 611. The defendant also failed to establish that there were “any marked differences in complexion” or “marked variance in the physical build” among the participants that would substantially distinguish defendant. Id. at 611.
•Attire of Lineup Participants
“[I]t is generally preferable to present lineup participants in attire which is not indicative of their confinement (or alternatively to present all lineup participants in jailhouse attire).” Craft, 325 Mich App at 611. However, in Craft, the “defendant [failed to show] that the lineup was so suggestive as to distinguish substantially [him] from the other participants” where he was one of two participants wearing an orange jumpsuit. Id. at 611 (holding any error in the admission of identification of defendant would have been harmless in light of “[s]everal other pieces of evidence presented at trial [that] tended to establish defendant’s identity”).
A photographic lineup should generally not be used if a suspect is in custody or if the suspect could be compelled to take part in a corporeal lineup. People v Strand, 213 Mich App 100, 104 (1995) (photographic lineup was permissible because defendant not in custody at the time; because he was also not under arrest, he could not be compelled to participate in a corporeal lineup). “However, this rule is subject to certain exceptions, including situations in which a corporeal lineup is not feasible because ‘there are insufficient numbers of persons available with the defendant’s physical characteristics.’” People v Cain (Cain I), 299 Mich App 27, 47-48 (2012), vacated in part on other grounds by People v Cain (Darryl) (Cain II), 495 Mich 874 (2013),5 quoting People v Currelley, 99 Mich App 561, 564 (1980) (“there were not enough young black men with similar physical characteristics to [the] defendant]” and “[u]nder the circumstances, a photographic lineup was clearly proper[ because the] defendant would have suffered significant prejudice if he had been placed in a corporeal lineup with men of difference races or ages”).
“A photographic identification procedure violates a defendant’s right to due process of law when it is so impermissibly suggestive that it gives rise to a substantial likelihood of misidentification.” [People v Gray, 457 Mich 107, 111 (1998). The same standard of “unduly suggestive” applies to photo lineups as well as corporeal lineups:
“[A] suggestive lineup is not necessarily a constitutionally defective one. Rather, a suggestive lineup is improper only if under the totality of the circumstances there is a substantial likelihood of misidentification. The relevant inquiry, therefore, is not whether the lineup photograph was suggestive, but whether it was unduly suggestive in light of all of the circumstances surrounding the identification.” People v Kurylczyk, 443 Mich 289, 306 (1993) (internal citation omitted).
A trial court does not clearly err in allowing identification testimony based on a photographic lineup where the defendant “does not indicate any unique differences about his photograph that served to make the lineup unduly suggestive and there are none apparent on the record[.]” People v Henry (After Remand), 305 Mich App 127, 161 (2014).
“[P]lacing [a] defendant’s photograph first in a lineup is [not] inherently suggestive, and in a random assortment the first slot is no less [sic] likely than any other.” People v Blevins, 314 Mich App 339, 350 (2016). However, showing a witness only a single photograph or a group in which one person is singled out can be impermissibly suggestive. Gray, 457 Mich at 111. For example, “the police officer’s presentation of a single photograph to the victim accompanied by the question ‘was this the guy who shot you?’ was highly suggestive[,]” and “insufficient record evidence exist[ed] to conclude that the trial court erred when, in determining whether the suggestive procedure was necessary under the circumstances, it . . . did not find that exigency required an expedited identification procedure or that a less suggestive identification procedure would have been too burdensome to conduct[.]” People v Thomas, 501 Mich 913, 913 (2017). The trial court appropriately “determined that the identification was unreliable under the totality of circumstances[]” where “the victim viewed the assailant’s partially obscured face for no more than seven seconds on a dark city street with no streetlights while a gun was pointed at him[, t]he description the victim gave to police officers was generic and could have described many young men in the area[, and] . . . the victim’s description of the assailant changed[;]” furthermore, “the trial court did not err in determining that the victim’s in-court identification lacked an independent basis sufficient to ‘purge the taint caused by the illegal’ identification procedure[.]” Id. at 913-914 (citations omitted).
Nevertheless, the use of a single photograph “only to help confirm the identity of the person the witness had already identified[ as defendant]—using a nickname—as the [perpetrator of a murder]” did not violate due process where “[t]he witness testified that he knew, and grew up with, the [defendant].” People v Woolfolk, 304 Mich App 450, 457-458 (2014), aff’d on other grounds 497 Mich 23 (2014) (citing Kurylczyk, 443 Mich at 302-303, and Gray, 457 Mich at 111, 114-115, and holding that “the prior relationship and the witness’s identification of the [defendant] by name before seeing the photograph established an untainted, independent basis for the in-court identification”).
In Blevins, 314 Mich App at 350, the Court of Appeals rejected, as “pure speculation,” the defendant’s argument that because “[photographic] lineups [in which he was identified] were not ‘double blind,’ . . . the officers conducting the lineup[s] might have subtly or unconsciously suggested a ‘correct’ choice to the witnesses.” The defendant “had ample opportunity to argue why the specific witnesses against him should have been deemed unreliable,” and “[a]ny infirmities [in the witnesses’ testimony] either were or could have been presented to the jury, . . . [which] was properly instructed to consider these infirmities.” Id. at 350.
“A showup is a police procedure in which a suspect is shown singly to a witness for identification[.]” People v Sammons, 505 Mich 31, 36 n 1 (2020) (quotation marks, alteration, and citation omitted). While a showup identification is suggestive by nature, “[t]here are instances in which a fair and nonsuggestive procedure simply is not possible.” Id. at 47-48 (noting that a showup identification was necessary where “the only witness to a murder had been stabbed 11 times and was in the hospital awaiting a major surgery needed to save her life,” and it was unknown how long the witness might live).
In Sammons, the showup identification process was suggestive because the witness “could plainly see for himself that defendant . . . [was] involved in a criminal investigation–being the subject of a showup is involvement in a criminal investigation.” Sammons, 505 Mich at 45. Additionally, the witness “testified that he understood he was taken to see defendant [at the police station] for the purpose of making an identification.” Id. (noting that “[t]he suggestiveness of a showup is aggravated when it is conducted in a police stationhouse”). “[T]he suggestiveness was unnecessary because there was no reason, except perhaps police convenience, to use a suggestive procedure[.]” Id. at 36, 48 (noting the witness “did not arrive at the police station until 4 to 5 hours” after the defendant was arrested and “there was no ongoing danger”). Furthermore, “the prosecution [did not meet] its burden to show that the indicia of reliability” was “strong enough to outweigh the competing effect of the police-arranged suggestive circumstances[.]” Id. at 55 (quotation marks and citation omitted). Specifically, “the showup was not reliable” because the witness’s “opportunity to view the criminal at the time of the crime was . . . poor,” the witness did “not appear to have focused on the physical features of the [defendant],” the witness’s “description was wrong about the most specific details of the suspects,” and “[t]he level of certainty of the witness at the confrontation [was] difficult to evaluate because it was not documented.” Id. at 36, 51-54 (although “the identification’s unreliability was exposed to the jury through cross-examination and . . . the jury was instructed to evaluate the reliability of the identification,” “the error was not harmless because the prosecution’s case was significantly less persuasive without the showup”).
F.Defendant’s Request for a Lineup
A trial court has discretion to grant a defendant’s motion for a lineup. People v McAllister, 241 Mich App 466, 471 (2000). “A right to a lineup arises when eyewitness identification has been shown to be a material issue and when there is a reasonable likelihood of mistaken identification that a lineup would tend to resolve.” Id. at 471. “[T]here is a due process right to a lineup in an appropriate case.” People v Gwinn, 111 Mich App 223, 249 (1981) (internal quotation omitted). Considerations include “the benefits to an accused, the burden to the prosecution, police, courts, and witnesses, and the timeliness of the motion involved.” Id. at 249.
“[A] trial court’s decision to admit identification evidence will not be reversed unless it is clearly erroneous.” People v Harris, 261 Mich App 44, 51 (2004). “Clear error exists if the reviewing court is left with a definite and firm conviction that a mistake has been made.” Id.
1 United States v Wade, 388 US 218 (1967).
2 For more information on the precedential value of an opinion with negative subsequent history, see our note.
3 See Section 9.13(E) for more information on showups.
4 United States v Wade, 388 US 218 (1967).
5 For more information on the precedential value of an opinion with negative subsequent history, see our note.