Something you often see in fictional crime dramas is the police showing a witness a “photo array” of individuals, one of whom is the person suspected of committing a crime. This is, in fact, a real procedure used by the police. But there are certain rules and restrictions governing what are known as “extrajudicial identification.”

The key thing is that an eyewitness identification is considered unreliable–and therefore inadmissible in court–if it was the result of an “impermissibly suggestive” procedure. In other words, if the police show a photograph to a witness and say, “This is the person who committed the crime,” that would clearly be an impermissible suggestion. But even a more subtle tactic may cross the line. Say the police show an array of six photographs. One is of the suspect and the other five are of individuals who look nothing like the suspect. That, too, may be sufficient proof that the police made an impermissible suggestion to the witness.

Court of Special Appeals Upholds Robbery Conviction Based on Eyewitness ID

If a criminal defendant wishes to challenge an extrajudicial identification in court, the burden is on them to prove there was an impermissibly suggestive procedure used by the police. A recent decision from the Maryland Court of Special Appeals, Cook v. State, illustrates the difficulty that defendants face when attempting to meet that burden.

In this case, a man called the police after escaping an attempted armed robbery. The man gave a description of the two suspects, one of whom was unknown to him. A few days later, the police asked the man to come in and look at two photo arrays. The witness identified one of the men–the defendant in this case–from the first array.

At trial, the defendant argued the witness identification should be excluded as evidence due to the “unduly suggestive” actions of the police. The trial court denied the defense motion. A jury proceeded to convict the defendant of attempted robbery and several related charges.

The Court of Special Appeals held the decision to allow the extrajudicial identification into evidence was appropriate. The appellate court noted that the “composition of the array” did not make the defendant’s picture stand out in any way. Nor was there any evidence that the officers who administered the photo array told the witness “who to select.” Indeed, they explicitly told the witness “that he was not obligated to select anyone from the array and that the perpetrator may not be pictured.” Although one of the officers did tell the witness afterward that he picked the “right” person, a post-identification statement of that nature does not taint the identification itself, the Court of Special Appeals said.

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Source: https://www.courts.state.md.us/sites/default/files/unreported-opinions/0980s20.pdf