How Not to Present a Photo Lineup

by | July 21, 2022

Reyes v. Nurse, 2022 WL 2338573 (7th Cir. 2022)

Troy Hutchins, a marijuana dealer, learned his supplier, William Thomas, had a large cache of drugs and at least $40,000 in cash at his home. Hutchins and Thomas were on rocky terms because Hutchins had given Thomas counterfeit money for drugs. Hutchins told another dealer, Kenneth Wright, about the cash and drugs in Thomas’s home. Juan Reyes, Alex Garcia, Joseph Hernandez and Andre Smith were all visiting Wright at the time. Soon the six men hatched a plan to rob Thomas and to divide the drugs and cash.

When the men went to carry out the robbery, another dealer, Timothy Landon, was at Thomas’ house. Thomas’ nine-year-old and four-year-old daughters were also home. The robbers arrived at Thomas’ house in two cars. The four men who were not known to Thomas (Reyes, Garcia, Hernandez and Smith) entered the home. Landon was on the couch and Thomas was at a table rolling a joint. The older daughter was also in the living room and the younger daughter was taking a bath.

One of the robbers shot Landon in the stomach. Thomas began to struggle with the shooter, while the daughter fled down the hallway to find her sister. Landon ran outside but looked back and saw Thomas still struggling with the shooter. Thomas was shot seven times and he died in the driveway. Landon escaped. He spent over two weeks in the hospital recovering from the gunshots and surgery.

Officers took a witness statement from the nine-year-old girl on the night of the shooting. They also interviewed Landon in the hospital a couple of days after his surgery, when he was fairly well stoned on morphine. A week after the shooting, a detective showed Landon four six-pack photo arrays, one of which was built around Reyes. Landon did not make an identification.

After 10 days, the detective again visited Landon and showed him the same six-pack arrays, still including the photo of Reyes. Landon still could not identify a shooter. Ten more days passed, and the detective again visited Landon and showed him two new six-pack arrays, one of which included a more recent photo of Reyes. Once again, Landon did not identify anyone as the shooter. However, Landon pointed to the photo of a filler subject named Peaslee (who was not a suspect), saying he wasn’t “the guy” but was “close.” A week later, the detective showed Landon five more six-packs, none of which included Reyes. Once again, Landon made no identification. Landon had been shown photo arrays on four separate occasions and had made no identification.

Six months after the shooting, the detective once again tried for an identification from Landon. He showed Landon a single six-pack that included an older photo of Reyes, as well as photos of two other suspects, Hernandez and Garcia. Peaslee’s photo was not included. Landon identified Reyes as the shooter. The detective also showed the nine-year-old girl a six-pack that included the same picture of Reyes, but she did not make an identification.

Before trial, Reyes moved to suppress Landon’s identification. During the suppression hearing Reyes’ defense attorney asked Landon about Reyes’ and Peaslee’s photos. The defense attorney asked Landon several times whether Landon recognized Reyes in his photo. Landon gave “muddled” answers, but he eventually identified Reyes as the shooter. The judge refused to suppress the identification. A jury convicted Reyes of murder, attempted murder and home invasion. Reyes filed a federal habeas corpus petition challenging his conviction and alleging the identification process was fatally flawed.

In double-blind identification lineups, the person presenting the lineup is not involved in the investigation of the case and does not know the identity of the suspect.

Eyewitness identification, whether obtained through a photographic lineup or the far less-common live lineup, has traditionally carried a strong presumption of reliability. Advances in science and scrutiny by courts have sharply questioned the validity of eyewitness identification procedures that do not follow best practices based in scientific evidence. Relying on the best scientific knowledge available, many police agencies have adopted policies designed to obtain the most reliable eyewitness identification possible.

Lexipol’s Eyewitness Identification Policy outlines the generally accepted best practice of the double-blind photo lineup procedure. In double-blind identification lineups, the person presenting the lineup is not involved in the investigation of the case and does not know the identity of the suspect. If the person administering the identification process knows which photo shows the presumed suspect, there is a significant risk of the administrator cuing the witness. The cue may only be a facial tic or breath drawn. Double-blind administration eliminates even unconscious cuing and reduces the likelihood of erroneous identification.

In addition to the cautionary instructions to the eyewitness prescribed by the Lexipol policy, the person administering the photo line-up should also instruct the witness that the suspect may not appear exactly as they did on the date of the incident. The process should also include a signature line where the witness acknowledges they understand the identification procedures and instructions. The confidence statement should be in the witness’s own words describing how certain they are of the identification or non-identification. This statement should be taken at the time of the identification procedure.

The filler photos (the non-suspects) should resemble the eyewitness’s description of the perpetrator. The suspect should look similar to the fillers (for example, he should not be the only member of his race in the lineup, or the only one with facial hair). Eyewitnesses should also not view multiple lineups with the same suspect. Fillers should not stand out due to different height, weight, coloring, clothes, behavior, etc. In photo arrays, there are numerous ways that one picture can be subtly different: lighting, color tone, brightness, sharpness, viewing angle, background, location of face in the frame, etc. If appropriate, the administrator should tell the witness that the difference in format is irrelevant.

Evidence of a pretrial identification of the accused must be excluded from trial if, based on the totality of the circumstances, the procedure used to obtain the identification was: 1) unnecessarily suggestive; and 2) conducive to mistaken identification (Stovall v. Denno, 388 U.S. 293 (1967)). This rule applies regardless of whether the identification was in-person or a photo lineup, whether it occurred before or after formal charges were initiated, and whether counsel was present.

Where pretrial eyewitness identification is deemed unnecessarily suggestive and unreliable, the witness is precluded from making an in-court identification of the accused unless the prosecution proves that the out-of-court identification procedure did not create a very substantial likelihood of irreparable misidentification (Simmons v. United States, 390 U.S. 377 (1968)).

The trial court denied Reyes’ petition for habeas corpus relief and the appellate court affirmed. The appellate court held the identification procedure was unnecessarily suggestive and that the photo line-up procedures were so deficient that the admission of Landon’s identification of Reyes violated his due-process rights. Notwithstanding, the court of appeals held the flawed identification procedure did not taint Reyes’ conviction. Reyes could not show prejudice from the identification errors because the prosecution offered significant evidence of his guilt independent of the improper identification.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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