Line-up/Photospread/Field
Category > Line-up/Photospread/Field
A defendant can appeal the denial of an Evans lineup even if he does not seek writ review of the denial. When the trial court denies a defendant’s motion for a physical lineup and the defendant does not seek writ review of that ruling, the defendant is not barred from raising the issue on postjudgment appeal.id: 22726
Pretrial identification procedure was unnecessarily suggestive due to the labeling under defendant's photo.The photo array shown to a witness was impermissibly
suggestive and prejudicial because the labeling and positioning of defendant's picture plainly made his photo stand out from the others as his name and ID number were printed beneath the
photo, because the photo array was not disclosed to the defense until the first day of trial, because the court denied the defense request for a continuance, and because no witness identified defendant.id: 19017
The court may not compel a person who is out of custody, and before criminal proceedings are brought, to attend a lineup.The trial court lacked jurisdiction to issue an ex parte order, before the institution of any criminal proceedings, compelling a person who was out of custody to appear at a lineup and submit himself to custody for that limited purpose.id: 14932
Curbside lineups that took place after police told the victims they had caught the robbers was not unduly suggestive.Defendant argued the curbside identification procedure was unduly suggestive because the police told the victims they had caught the robbers before the “lineup.” However, before asking the victims to identify the defendants each was told not to infer guilt from the fact of the detention and they did not have to identify anyone.id: 24563
The trial court did not err in rejecting defendant’s request for a “ski mask lineup” four years after the incident.The trial court did not err by denying defendant’s pretrial request for a lineup where the participants wore ski masks (as they did in the robbery) because the incident occurred four years earlier, and at a live lineup conducted 10 days after the crimes, four witnesses identified defendant as the perpetrator who was wearing a ski mask. The initial lineup protected defendant’s due process rights where the participants wore a knit cap pulled down to the forehead.id: 22700
Defendant’s request for a live lineup was untimely where it was made a year and a half after his arrest.Defendant argued the trial court erred in denying his motion for an “Evans lineup,” a physical lineup to see if witnesses could identify him. However, his motion was untimely where it was made a year and a half after his arrest and a year after the preliminary hearing. The record also suggested defendant’s appearance had changed somewhat since the times of the crimes.id: 22644
Lineup including defendant and codefendant was not unduly suggestive where codefendant was the only person with substantial facial hair as described by the victim.Defendant and codefendant were part of a lineup with six other black men. The victim positively identified codefendant and placed a question mark in defendant’s position on the card she was given. The procedure was not unduly suggestive even if the codefendant was the only person with substantial facial hair which was consistent with the victim’s description. Moreover, the fact that defendant and two others were the only clean shaven members of the lineup did not create an absence of likeness of the others that rendered the lineup unduly suggestive.id: 22805
Allowing the witness to view the surveillance video before the photo lineup was not improper, and allowing the witness in court to approach counsel table did not taint the in-court identification. The live lineup procedures used in the case were not unduly suggestive. First, there is no legal authority to support the claim that group lineups are inherently impermissibly suggestive. Next, allowing the witness to view the surveillance video from his own robbery before viewing the photo lineup was not improper. Finally, the in-court identification was not tainted by allowing the witness who did not have his glasses, to approach counsel table to identify the defendant.id: 21899
Showing the photographs of defendant to the witness on the night before trial was not an impermissibly suggestive identification procedure. The prosecutor showed a witness photographs of defendant the night before trial. He testified defendant’s photographs closely resembled the person with the shotgun. The procedure was suggestive to some degree but not unduly or unnecessarily suggestive. The circumstances of the identification were disclosed to the defense, they were able to cross-examine the witness about the identification and the jury was able to evaluate the reliability of the identification by comparing the photographs to the composite drawing and the defendant’s current appearance at trial.id: 21695
Where defendant's 1992 conviction was reversed in federal habeas corpus proceedings, the district court's determination that the in-court ID was not independent from the illegal live lineup was not collateral estoppel or law-of-the-case.Defendant argued that under the doctrines of collateral estoppel and law-of-the-case, the trial court was bound by the district court's conclusion and was precluded from determining independently whether the witness's in-court identification or defendant had an independent origin. However, the findings of the federal district court in the habeas corpus proceedings did not preclude the trial court from determining independently the admissibility of the in-court identification testimony of both witnesses had an origin independent of the illegal live lineup.id: 21520
Photo line-up procedure was not unduly suggestive where the witnesses signed the back of the photo after an identification allowing others to see the person in the photo had already been identified.The photographic line-up was not impermissibly suggestive even though defendant had the only orange shirt because the shirt did not resemble jail-issued clothing. Neither was it significant that the officer asked the witnesses to sign the backs of the photos after making an identification. While a more neutral recording procedure would have been preferable, the one used was not unduly suggestive.id: 18741
Magistrate may order the prosecution to conduct a voice only lineup.It is within the discretion of the magistrate to direct the People to conduct a voice only lineup to ascertain if the victim of crimes charged against defendant can identify her assailant's voice from among the voices of defendant and others. The magistrate's discretion should be informed by consideration whether voice identification is a material issue and there is a reasonable likelihood of a mistaken identification which a voice lineup would tend to resolve.id: 11415
Defendant had no right to a lineup where there was no reasonable likelihood of misidentification. Defendant argued the trial court erred in denying his request for a pretrial Evans lineup. However, the right to a lineup arises only when eyewitness identification is a material issue and there is a reasonable likelihood of misidentification which a lineup would tend to resolve. However, there was no reasonable likelihood of misidentification where the witnesses positively identified defendant.id: 19671
Until formal charges were filed defendant had no federal constitutional right to counsel at the lineup.Defendant asked for counsel prior to the live lineup. By the
time of the lineup no complaint had been filed and the evidence was in conflict as to whether a decision to file had been made when the lineup was held. Defendant acknowledged that the right
to counsel attaches when judicial proceedings have commenced but argued it was improper to deny him counsel for the lineup once suspicion had focused on him as the killer and he requested
counsel. However, until formal charges were filed, defendant had no right to counsel at the lineup.id: 19613
Live lineup was not unnecessarily suggestive where defendant was the only person with a tatoo on his head since no witnesses saw a tatoo on the gunman's head. Defendant moved to suppress the pretrial identifications as unnecessarily suggestive since defendant was the only one in the live lineup that had a "Lott stoners 13" tatoo on the back of his
head. However, none of the witnesses observed a tatoo on the gunman's head.id: 19110
Lineups were not necessarily suggestive where defendant's photo appeared both times in the fourth position.The photo lineup was not unnecessarily suggestive even though defendant's photo appeared both times in the fourth position. Different photographs of defendant appeared in each lineup, and the two lineups were separated in time by a month.id: 17473
The court did not err in denying the lineup at the penalty phase to test "other crimes" evidence since eyewitness identification was not a material issue in that case.During the penalty phase trial, defendant moved on due process grounds to have the victims of a 1983 robbery and assault, attend a lineup in order to test their ability to make an identification. The prosecutor argued due process does not require a lineup to test the reliability of other crimes evidence at the penalty phase of a capital trial. The court ruled defendant was not entitled to the lineup since the eyewitness identification was not a material issue and no reasonable likelihood of misidentification existed.id: 16849
Showing profile photo of defendant only at the victim's request following a photographic lineup was not unduly suggestive.Defendant argued he was denied due process where police showed the victim of a six month-old rape, a single photograph of him in profile following a pretrial photographic lineup containing six pictures. The profile photo was displayed after the victim said he looked familiar but she needed a side profile. Defendant argued the profiles of all six people should have been displayed. However, the instant procedure was not unduly suggestive and there was no due process denial.id: 15690
Appellant's right to counsel at the pre-indictment lineup was not violated by the police failure to advise him of his right to counsel of his choice.Appellant argued the police violated his right to counsel at the pre-indictment lineup by failing to advise him of his right to counsel of his choice. However, the public defender's presence and representation of appellant at the lineup satisfied constitutional requirements.id: 11409
Assuming the single-voice lineup was unnecessarily suggestive the identification was reliable where victim had a good opportunity to hear the voice and her identification was positive.Police played for the victim a tape recording that had only the defendant's voice and during which he mentioned a pornographic movie involving a girl and a horse. He argued the procedure was unduly suggestive in three respects: first, his was the only voice on the tape; second, the police suggested the voice she would hear was that of a suspect; and third, the mention of the bizarre sexual conduct would likely induce the victim to identify the speaker's voice. Even if the procedure was unduly suggestive in that the single voice lineup was unnecessary, the lineup was nevertheless reliable under the totality of the circumstances where the victim had a good opportunity to hear the caller, she was told that she need not make an identification, the calls were highly unusual so that she paid close attention and her identification was positive.id: 11410
Conducting lineup two days after viewing of photographs was not impermissively suggestive.Appellant argued that certain pretrial identification procedures were impermissively suggestive. However, conducting the lineup two days after viewing photographs was not improper. Moreover, including appellant's picture in each of two sets of photographs that they showed one of the victims did not violate his due process rights.id: 11411
Informing witness she had selected the suspect's photograph, and later informing her that the suspect was in custody did not impermissibly taint her subsequent trial testimony.Defendant argued that informing the witness she had selected the suspect's photograph, and later informing her that the suspect was in custody, tainted her subsequent trial testimony. However, the witness expressed no uncertainty about her initial identification. Moreover, at trial, she merely identified the photo she had selected from the lineup, which occurred before the confirming statements by the police. Accordingly, there was no possibility that her testimony was impermissibly influenced.id: 11412
Issue of suggestiveness of the show-up may not be asserted for the first time on appeal to support the order of dismissal.There is no federal right to counsel at a prearrest, pre-indictment in-the-field show-up. The trial court therefore erred in finding the show-up to be invalid. Defendant was precluded from raising the issue of undue suggestiveness of the show-up because such a claim is factual and may not be asserted for the first time on appeal in order to support the order of dismissal.id: 11413
Lineup was not unduly suggestive despite defendant's claim that his difficulty in understanding directions made him stand out.Defendant argued his lineup was unduly suggestive because his inability to speak English made him stand out. The court acknowledged defendant did appear a little confused when following the first few commands but that he thereafter appeared to follow the commands that were given. However, notwithstanding his difficulties in following the directions, he did not stand out.id: 11414
Photo identification was not improper where defendant was depicted in the picture along with a codefendant who had already been identified by the victim.Defendant argued the photograph shown to the victim by police was impermissibly suggestive because it showed defendant with a codefendant the victim had just identified as one of the perpetrators. No claim was made that police suggested <i>any</i> of the five photos depicted a perpetrator. Nor was there anything about the photo in question which linked the identified codefendant any more to defendant than to any of the other six Asian men depicted in the photo. The victim was shown a total of five photos depicting well over 20 persons. Nothing singled out defendant and the procedure was not unduly suggestive.id: 11416
Photographic line-up was not suggestive where a witness testified the perpetrator wore a red jacket and defendant wore a red shirt at the line-up.The witness told the police the man who came to the door was wearing a red jacket. Defendant argued the five man photographic line-up was too suggestive because only his photograph featured a dark background, and only he wore a red shirt. However, the line-up was not unnecessarily suggestive simply because defendant wore an item of apparel<197>particularly a different item of apparel<197>the same color as that recalled by the witness.id: 11417
Photospread was not impermissibly suggestive where only two other photographs were of men resembling defendant.Defendant argued the trial court abused its discretion in admitting the photographic identification of him because it was the result of an impermissibly suggestive photospread since only two other photographs in the spread were of men who looked similar to him. However, there is no requirement that a defendant in a photospread be surrounded by others nearly identical in appearance. Defendant's photo did not stand out, it was similar to at least two others, and it was presented loose, in a stack shown one at a time. Moreover, the victim identified defendant's photograph immediately. Defendant failed to establish the photographic lineup was unfair and unduly suggestive.id: 11418
Physical line-up was not unduly suggestive where defendant was made to stand on telephone books to approximate the height of the stand-ins.Defendant argued the physical line-up was unnecessarily suggestive because, to mask defendant's stature, he was made to stand on books that were concealed from the viewer and his apparent height was thereby increased. This was accomplished so that defendant would approximate the height of the four stand-ins. There were no markings on the wall to provide the witness a clue about the participant's height. Had the police failed to elevate defendant, he might well have challenged the height discrepancy. Finally, the stand-ins did not differ significantly in the other physical characteristics. The physical line-up was not unduly suggestive.id: 11419
Pre-arrest photographic identification procedure was not unduly suggestive where the officer made no suggestive comments and the photographs depicted persons with similar physical features.Defendant sought to exclude evidence of a pre-arrest photographic identification due to the alleged suggestive nature of the identification procedure. However, the court's ruling that the procedure was not unduly suggestive was supported by the evidence. Since all of the photographs depicted persons with similar physical characteristics, even if only four or five photographs were shown to each witness, there would have been a representative sampling from which a witness could identify the two suspects he had seen. The identification of two suspects by each witness was consistent with the witness' observations at the time of the offense. Hence, the photographic identification procedure was fair and not suggestive.id: 11420
The identification following the single person show-up at the hospital was reliable where the victim viewed the attackers for 75 minutes.Appellant argued the victim's identification was the product of an unnecessarily suggestive one-person show-up at the hospital. However, the victim viewed appellant along with others sitting on a wall before the attack. She had an ample opportunity to see him at close range during the 75 minutes of the incident and was able to provide relatively detailed descriptions of most of her attackers. While she was inaccurate as to appellant's pants, she provided an otherwise generally accurate description. The victim's level of certainty was clear. Finally, the lapse of time between the crime and identification was less than three hours.id: 11421
Trial court did not abuse its discretion in refusing to grant defendant additional time to present an expert witness at the hearing to determine the admissibility of the voice identification.At the in camera hearing regarding the admissibility of the voice identification, the trial court refused to give defendant additional time to present an expert witness who was unavailable at the time of the hearing. It is a matter of common experience that the ability to remember a perceptive experience diminishes over time. It is also generally known that voices may sound slightly different through different media. Expert opinion on these matters was not required to determine the admissibility of the voice identification under the totality of the circumstances.id: 11422
A defendant may not base his claim of deprivation of due process in a lineup on his own behavior.Defendant argued that his own conduct, in failing to enter the stage in proper order and in shaking his head during the lineup caused the lineup to be constitutionally unfair. However, a defendant may not base his claim of deprivation of due process in a lineup on his own behavior so as to prevent him from drawing undue attention to himself. Finally, the officer's comment in the lineup room that number 5 would go into the discipline room did not unfairly bring defendant to the witness' attention.id: 11407
Appellant waived his right to complain of a suggestive in-court identification where he refused to exercise his right to participate in a pretrial lineup.Prior to trial, appellant requested a lineup so that the witness' first identification effort would not be during trial. After the inmates most closely resembling appellant had been selected to participate in the lineup, appellant refused to participate. Appellant was thereafter precluded from complaining that the subsequent identification was tainted by the suggestiveness of the circumstances in the courtroom.id: 11408
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245