The Witness Who Already Saw the Suspect
At 3:10 p.m. on a Tuesday, a 62-year-old woman calls 911 after seeing a man leave her neighbor's side door carrying a laptop. She describes him as a white male in his 20s, about 5'10", with a reddish beard, a gray hoodie, and a tattoo on the back of his right hand. Two days later, a detective identifies a suspect: a 22-year-old white male, 5'10", reddish beard, with a heart tattoo on the back of his right hand. The suspect is in custody on a parole violation. The detective prepares a six-pack photo array using the suspect's prior arrest photo and five filler photos. Before the array, the witness tells the detective, "I already saw his picture on the neighborhood Facebook page, and that's him." The detective asks you to sit in as the array administrator.
1. What problems do the witness's prior exposure and the planned array create for the identification?
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The identification is already compromised. The witness has seen the suspect's photo on Facebook and has been told, or has concluded, that he is the person. Showing her a six-pack that includes the same face does not test her memory; it confirms a prior suggestion. The array also risks standing out: a prior arrest photo may differ in clothing, background, or quality from the fillers, and the detective knows the suspect. That is a suggestive procedure under due-process analysis (Manson v. Brathwaite) and under Ohio eyewitness-identification best practices. The detective's plan to have you administer the array does not fix the problem if you know which photo is the suspect; a single-blind administrator can still leak cues. The core issue is not whether the witness can pick him out now, but whether her original observation was reliable and uncontaminated.
2. If the detective proceeds, how should the identification procedure be structured and documented?
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Best practice is not to proceed with a contaminated array. Instead, document the prior Facebook exposure in the witness's own words, preserve the Facebook page, and look for independent evidence: the laptop, pawn records, DNA, surveillance, admissions. If a formal identification is still necessary, use a double-blind, sequential procedure: an administrator who does not know the suspect, unbiased instructions that the person may or may not be present, fillers who match the original description, no feedback, and a verbatim record of the witness's confidence statement. Do not tell the witness the suspect is in custody. Do not show a single photo. If the witness cannot be used reliably, the case must stand on corroboration, not on a courtroom identification that the defense will attack.
3. What case-management and disclosure obligations apply to the prior exposure and the array?
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Document everything contemporaneously: the witness's initial description, the Facebook exposure, the date and content of the page, the array preparation, the fillers chosen, the administrator's identity, the instructions given, and the witness's exact words and confidence. Preserve the Facebook page with screenshots, URL, and metadata before it disappears. Preserve BWC, notes, and the photo array. Under Brady v. Maryland, the prosecution must receive any exculpatory or impeaching information, including the suggestive prior exposure and any defect in the array. Do not bury it in a supplemental report; flag it to the prosecutor in writing. Good case management means the file tells the whole story, including the weaknesses, so the state can make a lawful charging decision.