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Case 1:20-cr-00330-PAE Document 397 Filed 10/29/21 Page 66 of 84

Minor Victim-4 identified photo as possibly depicting the defendant, but indicated that
she was not sure. When she reached photo Minor Victim-4 said it depicted the defendant.
After completing her review of the book, Minor Victim-4 returned to compare photos
and she confirmed that she believed photo was a photo of the defendant, and she was not sure
whether she knew the person in photo

B. Applicable Law
As a general matter, the Constitution "protects a defendant against a conviction based on
evidence of questionable reliability, not by prohibiting introduction of the evidence, but by
affording the defendant means to persuade the jury that the evidence should be discounted as
unworthy of credit." Perry v. New Hampshire, 565 U.S. 228, 237 (2012). Eyewitness
identifications should therefore be excluded only where "improper police conduct" occurred that
was "so unnecessarily suggestive as to give rise to a very substantial likelihood of irreparable
misidentification." Id. at 238-39; see Manson v. Brathwaite, 432 U.S. 98, 112-14 (1977); Simmons
v. United States, 390 U.S. 377, 384 (1968).
Federal courts follow a two-step analysis in ruling on the admissibility of identification
evidence. Perry, 565 U.S. at 238-40; Brisco v. Ercole, 565 F.3d 80, 88 (2d Cir. 2009). First, the
defendant must show that the identification was "so unnecessarily suggestive and conducive to
irreparable mistaken identification that [the defendant] was denied due process of law." United
States v. DiTommaso, 817 F.2d 201, 213 (2d Cir. 1987) (citation and internal quotation marks
omitted); see Raheem v. Kelly, 257 F.3d 122, 134 (2d Cir. 2001). This is a high threshold to meet,
as the defendant must show that, under the totality of the circumstances, there is "a very substantial
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