When an eye-witness identifies a suspect to law enforcement, it rarely occurs from a line up of people through a large glass window, as commonly seen on television shows like “Law and Order.” Witnesses will often identify a person from an assortment of six photographs, called a photopack. Often times, law enforcement will use a procedure in which a person’s photograph will look different from all of the other photographs in the photopack.
In other words, the person suspected of committing the crime will look different than the other five people in the photopack. In other cases, law enforcement will ask a witness to make an identification from only one photograph. There are even circumstances in which a witness is shown only one person in handcuffs in person.
When there is only one photograph, or when a certain photograph is different from the others, the identification procedure may not be reliable because it suggests whom the witness should choose. In these cases, a criminal defense attorney should file a pre-trial motion to have the suggestive identification excluded from the defendant’s trial.
Courts determine whether to exclude the identification by using a two-pronged approach: (1) whether the police used an unnecessarily suggestive procedure and (2) if so, considering all the circumstances, whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. See State v. Dorsey, 5 So. 3d 702, 705 (Fla. 2d DCA 2009). If successful, a pre-trial motion to exclude the identification can greatly affect the outcome of the Defendant’s case. If unsuccessful, the issue will be preserved for appellate review. A zealous defense attorney will keep fighting a suggestive identification issue at each stage of a client’s criminal case.
When a defendant’s charges are based solely based on an identification, it is imperative that the defense attorney assess the suggestive nature of the identification. At the end of the day, a person who is identified as a criminal suspect may be nothing more than the person suggested as the suspect.