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Case 1:20-cr-00330-PAE Document 397 Filed 10/29/21 Page 67 of 84

likelihood of irreparable misidentification.” United States v. Maldonado-Rivera, 922 F.2d 934,
973 (2d Cir. 1990). If the defendant cannot make such a showing, “the trial identification
testimony is generally admissible without further inquiry into the reliability of the pretrial
identification. In that circumstance, any question as to the reliability of the witness’s
identifications goes to the weight of the evidence, not its admissibility.” Id.

Second, an unduly suggestive identification procedure does not alone require suppression
of the identification evidence. See Brathwaite, 432 U.S. at 110-14. Instead, the court must then
determine whether the identification evidence is nevertheless “independently reliable” based on
the totality of the circumstances. Brisco, 565 F.3d at 89; United States v. Simmons, 923 F.2d 934,
950 (2d Cir. 1991) (“[E]ven a suggestive out-of-court identification will be admissible if, when
viewed in the totality of the circumstances, it possesses sufficient indicia of reliability.”). Among
the factors to be considered are: “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. 188, 199-200 (1972).
No single factor is dispositive. See Kelly, 257 F.3d at 135.

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