DOJ-OGR-00005743.jpg

Case 1:20-cr-00330-PAE Document 392 Filed 10/29/21 Page 6 of 8

When a defendant challenges the admissibility of identification testimony given by a
witness who made a pretrial identification, the Court is required to conduct a two-part inquiry,
asking first whether the pretrial identification procedures were unduly suggestive and, if so,
whether the identification is nonetheless independently reliable. Raheem v. Kelly, 257 F.3d 122,
133 (2d Cir. 2001).
A Government arranged photo array is unduly suggestive when a procedure “give[s] rise
to a very substantial likelihood of irreparable misidentification.” Simmons v. United States at 384
(1968); see also United States v. Hemmings, 482 F. App’x 640, 646 (2d Cir. 2012). In the context
of a photo array, familiar examples of a suggestive presentation include the “use of a very small
number of photographs,” “the use of suggestive comments,” or the display of the accused’s
photograph in a way that “so stood out from all of the other photographs as to suggest to an
identifying witness that that person was more likely to be the culprit.” United States v.
Concepcion, 983 F.2d 369, 377 (2d Cir. 1992).
The photo looks like a mug shot, is
different than the others, and the manner in which it was presented was unduly suggestive.
Where, as here, pretrial procedures have been unduly suggestive, the court must
determine whether an in-court identification will be the product of the suggestive procedures or
whether instead it is independently reliable. The factors to be considered include “the
opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of
attention, the accuracy of the witness’ prior description of the criminal, the level of certainty
demonstrated by the witness at the confrontation, and the length of time between the crime and
the confrontation.” Neil v. Biggers, 409 U.S. at 199–200; accord Manson v. Brathwaite, 432 U.S.

3

DOJ-OGR-00005743