Challenging Suggestive Photo Arrays in Federal Criminal Cases
Eyewitness identification can become powerful evidence in a federal criminal trial, even when the witness had only a brief opportunity to observe the person involved. A poorly constructed photo array may influence a witness to select the government’s suspect rather than the person the witness independently remembers.
If your federal case depends on an eyewitness identification, contact federal criminal defense attorney Michael J. Petro immediately. The photo array, police instructions, witness statements, and identification procedure should be examined before the identification is presented to a jury.
When Is a Photo Array Impermissibly Suggestive?
A photo array may be suggestive when the suspect noticeably stands out from the other people included in it. The court should examine the complete procedure, including:
• Whether the fillers resemble the witness’s original description
• Whether the suspect is the only person with a distinctive feature described by the witness
• Whether differences in lighting, background, clothing, or photograph quality draw attention to the suspect
• Whether officers told the witness that the suspect was included in the array
• Whether the officer administering the array knew which photograph depicted the suspect
• Whether the photographs were presented simultaneously or one at a time
• Whether the witness was pressured to make a selection
• Whether officers provided confirming feedback after the identification
• How much time passed between the crime and the identification
A suggestive procedure does not automatically require exclusion. The court must determine whether police created the suggestive circumstances and whether the identification remained sufficiently reliable.
The Constitutional Test for Excluding an Identification
The Supreme Court has held that due process requires judicial screening when police arrange an unnecessarily suggestive identification procedure that creates a substantial likelihood of misidentification.
The defense must first show that the police procedure was impermissibly suggestive. If it was, the court considers whether the identification was nevertheless reliable under the totality of the circumstances.
Reliability considerations include:
• The witness’s opportunity to observe the perpetrator
• The witness’s degree of attention
• The accuracy of the witness’s original description
• The witness’s level of certainty at the time of identification
• The length of time between the crime and the identification
A motion to suppress should address both parts of the analysis. It should explain how the police procedure directed the witness toward the defendant and why the circumstances did not provide an independent basis for a reliable identification.
United States v. John A. Ford
Attorney Michael J. Petro represented John A. Ford at trial in a federal bank robbery prosecution. The identification procedure later became a central issue in United States v. Ford, 683 F.3d 761 (7th Cir. 2012).
The robber wore a dust mask covering his nose and mouth. The bank manager described the robber as a white man with a very pale complexion, light colored eyebrows, and freckles around his eyes.
Sixteen months after the robbery, police showed the manager six photographs at once. The manager selected Ford.
The Seventh Circuit concluded that the array was suggestive. Ford was the only person whose photograph matched the two distinctive features the manager had described: a very fair complexion and freckles.
The court also identified several additional problems with the procedure.
The Fillers Did Not Match the Witness’s Description
All six photographs depicted adult white men of approximately the same age. However, Ford was the only person who was pale and had freckles.
Police are not required to locate people who look identical to the suspect. Nevertheless, the fillers should reasonably resemble the witness’s description. When the defendant is the only person who possesses the features emphasized by the witness, the array may communicate which person the police expect the witness to select.
The Photographs Were Presented Simultaneously
The officer placed all six photographs in front of the witness at the same time. A simultaneous array may encourage the witness to compare the photographs against each other and choose the person who looks most like the perpetrator.
A sequential procedure presents the photographs one at a time. This method may encourage the witness to compare each photograph with their memory rather than select the closest match from the group.
The Constitution does not require sequential presentation in every case. However, the method used remains an important factor in evaluating whether the overall procedure was suggestive.
The Investigating Detective Administered the Array
The same detective investigated the case, assembled the photo array, and presented it to the bank manager.
An officer who knows the suspect’s identity may unintentionally communicate information through words, gestures, facial expressions, or reactions. A blind administrator who does not know which photograph depicts the suspect reduces the possibility of consciously or unconsciously influencing the witness.
A blind procedure is an important safeguard, but it is not constitutionally required in every federal case.
The Witness Saw Only Part of the Robber’s Face
Because the robber wore a dust mask, the manager saw only part of his face. The Seventh Circuit stated that the photographs could have shown each person wearing a similar mask so the witness would compare the features actually visible during the robbery.
The witness’s limited opportunity to observe the perpetrator and the sixteen-month delay increased the risk of misidentification.
Why the Conviction Was Affirmed
Although the Seventh Circuit strongly criticized the photo array, it affirmed Ford’s conviction because it found any identification error harmless.
Police recovered the robber’s discarded dust mask near the bank. DNA found on the mask matched Ford. The court concluded that the DNA evidence, the witness’s original description, and surveillance images were sufficient to establish guilt even without the disputed identification.
The result demonstrates an important distinction. A court may find that an identification procedure was suggestive but still uphold a conviction if other evidence makes the error harmless.
Defending Against an Unreliable Identification
A meaningful challenge requires more than reviewing the final photograph sheet. Defense counsel should obtain the original photographs, the order in which they were displayed, all police instructions, recordings of the procedure, the witness’s original description, confidence statements, officer reports, and information about prior identification attempts.
Attorney Michael J. Petro represents individuals facing federal criminal charges in Tampa, Florida, and Chicago, Illinois. Contact federal criminal defense attorney Michael J. Petro today if an eyewitness identification or suggestive photo array is being used against you.