The Red Jacket Photo Array
At 9:12 p.m., a convenience store clerk is robbed at knifepoint. The clerk tells Detective Park the robber was a male, about 6 feet tall, wearing a red hooded jacket and a blue mask. Two days later, Park prepares a photo array of six men who are similar in age and build. The suspect's photo is the only one in which the person is wearing a red jacket; the others wear gray or blue shirts. Park tells the clerk, 'We think it's number three, but take your time.' The clerk identifies number three and says, 'That's him-the red jacket.' Park does not record the clerk's confidence statement. At trial, the defense moves to suppress the identification.
1. Is the photo array impermissibly suggestive? Explain the two-step due process test.
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Rule: A pretrial identification violates due process if the procedure is impermissibly suggestive and, under the totality of the circumstances, creates a substantial likelihood of irreparable misidentification. Courts use the Manson v. Brathwaite reliability factors: the witness's opportunity to view the suspect, degree of attention, accuracy of the prior description, level of certainty, time between the crime and identification, and the conduct of the procedure. Application: The array is problematic because the suspect is the only person wearing the red jacket the clerk specifically remembered. That makes the suspect stand out and effectively signals the answer. Park's statement that 'we think it's number three' adds explicit suggestiveness. The procedure is therefore likely impermissibly suggestive. The court must still ask whether the identification is reliable. The clerk had a close view during a robbery, gave a specific clothing description, and identified the suspect only two days later; those facts support reliability, but the suggestive array and failure to record confidence weaken the state's case.
2. What should Park have done to reduce suggestiveness and preserve the identification?
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Application: Park should have used a blinded or blind administrator who did not know which photo was the suspect, or at least avoided telling the witness that the suspect was in the array. The fillers should have matched the suspect's description and appearance without making the suspect uniquely identifiable-either all similar clothing or neutral head-and-shoulder photos. Park should not have said 'we think it's number three.' He should have recorded the clerk's confidence statement verbatim and documented the exact instructions given. A sequential procedure or a properly constructed lineup would also reduce relative-judgment error. These steps preserve the identification's reliability and make the record defensible.
3. If the court suppresses the pretrial identification, may the clerk still identify the defendant in court? What must the prosecution show?
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Rule: Suppression of a suggestive pretrial identification does not automatically bar an in-court identification. The prosecution may admit an in-court identification if it proves by clear and convincing evidence that the identification has an independent source-that is, the witness's identification rests on observations made during the crime rather than on the suggestive procedure. Application: The prosecution would need to show the clerk had a sufficient opportunity to observe the robber, was paying attention, gave a detailed and accurate description before the array, and did not have his memory tainted by Park's comment or the unique red jacket. The clerk's two-day delay and close view help the state, but the suggestive array and unrecorded confidence statement hurt. The court may allow the in-court identification with cross-examination, or it may exclude it if the taint is too great.