USA v. Shaun Brown, 05-4690.  Arthur Veal ran a trucking business, one function of which was to import large quantities of cocaine. Shaun Brown was among Veal’s regular customers.   On November 15, 2000, one of Veal’s trucks arrived in Dolton, Illinois, carrying 25 kilograms of cocaine. Veal called Brown, who had arranged to receive 17 kilos of this cargo.

At trial Veal and Gerald McDaniel, one of Veal’s drivers, were the principal witnesses against Brown. Two police officers-Don Rector and Chris Garcia- identified Brown  and testified that they had seen Brown pick up cocaine from Veal, switch to Lewis’s car, stand by while Lewis put the cocaine in the trunk of Dozier’s car, and escape at high speed after learning that Dozier had been stopped. 

The jury convicted Brown of possessing 17 kilograms of cocaine with intent to distribute and the court sentenced him to 235 months’ imprisonment.

Before trial Brown asked the court to prevent Rector and Garcia from testifying to his identification because it was unreliable.  Specifically, after Veal and McDaniel identified the escapee as "Shaun Brown," the officers looked at a photograph known to be Brown’s and concluded that the photo matched the person the officers had seen.

That one-photo viewing, Brown insisted, produced such a substantial possibility of irreparable misidentification that exclusion is required by Manson v. Brathwaite, 432 U.S. 98 (1977).

The Seventh Circuit starts by stating that even under the best circumstances, the probability of erroneous identification of a stranger seen briefly is uncomfortably high.  Further, under normal circumstances, a single photo or one-person showup implies that the police have their man and suggests that the witness give assent.

As such, in order to prevent an erroneous identification, a lineup of people with similar physical attributes ususally solves the problem.  However, even with a physical lineup, research in the last three decades has shown that the risk of misidentification is high even when lineups are used, but also because there is a better method, the repeated sequential display.

The police officers here did not use either a lineup or any form of sequential display.  Despit this, the Seventh Circuit approves of the single photo line-up identification by the police officers.

This is because the police officers were, first and foremost, trying to determine whether they had been lied to by snitch Veal.  And, in this situation, the quickest way to tell if Veal had lied to them was to look at a photograph of Shaun Brown before memory of the missing man’s appearance faded.   

In short, the officers approached the single photo of Brown not as victims open to persuasion by officialdom, but as skeptics trying to check up on their new snitch.

In the end, the Seventh Circuit finds that the single photo identification process used here did not create a pointless risk of misidentification, but instead it helped curtail the risk of Veal’s deceit.

As such, the district judge did not err in allowing the jury to consider the officers’ testimony.

AFFIRMED

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

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