Admissibility

• If an out-of-court identification was unduly suggestive, then the testimony relating to it is inadmissible.

Lewis v. State, 898 N.E.2d 429, 432 (Ind. Ct. App. 2008), trans. denied(citing Dillard v. State, 827 N.E.2d 570, 573 (Ind. Ct. App. 2005), trans. denied)

Bowlds v. State, 834 N.E.2d 669, 678 (Ind. Ct. App. 2005)(quoting Allen v. State, 813 N.E.2d 349, 360 (Ind. Ct. App. 2004), trans. denied)

See Rasnick v. State, 2 N.E.3d 17, 23 (Ind. Ct. App. 2013), trans. denied(citing Harris v. State, 716 N.E.2d 406, 410 (Ind. 1999))(“The Fourteenth Amendment’s guarantee of due process of law requires the suppression of evidence when the procedure used during a pretrial identification is impermissibly suggestive.”)

See also Farrell v. State, 622 N.E.2d 488, 493 (Ind. 1993)(citing Stovall v. Denno, 388 U.S. 293, 302 (1967))(“Due process of law requires suppression of testimony concerning an out-of-court identification when the procedure employed was unnecessarily suggestive.”)

Test for determining whether an identification procedure is “unduly suggestive”

• The identification of a defendant must comport with the standards of due process.

Lewis v. State, 898 N.E.2d 429, 432 (Ind. Ct. App. 2008), trans. denied(citing Allen v. State, 813 N.E.2d 349, 360 (Ind. Ct. App. 2004), trans. denied)

Bowlds v. State, 834 N.E.2d 669, 678 (Ind. Ct. App. 2005)(quoting Allen v. State, 813 N.E.2d 349, 360 (Ind. Ct. App. 2004), trans. denied)

• Identification procedures that are so suggestive as to give rise to a substantial likelihood of misidentification violate a defendant’s due process rights.

Lewis v. State, 554 N.E.2d 1133, 1135 (Ind. 1990), reh'g denied(citing Glover v. State, 441 N.E.2d 1360, 1363 (Ind. 1982))

See Johnson v. State, 455 N.E.2d 897, 900 (Ind. 1983)(citing Simmons v. United States, 390 U.S. 377, 384 (1968))(“An identification procedure which is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification violates a defendant’s right to due process.”)

See also Neukam v. State, 934 N.E.2d 198, 201 (Ind. Ct. App. 2010)(citing Swigeart v. State, 749 N.E.2d 540, 544 (Ind. 2001))(“A pre-trial identification may occur in a manner so suggestive and conducive to mistaken identification that permitting a witness to identify a defendant at trial would violate due process.”)

• In essence, this court must determine whether, under the totality of the circumstances, the identification process was conducted in such a manner that it created a substantial likelihood of irreparable misidentification.

Allen v. State, 813 N.E.2d 349, 360 (Ind. Ct. App. 2004), trans. denied(citing Farrell v. State, 622 N.E.2d 488, 493 (Ind. 1993))

See Dillard v. State, 827 N.E.2d 570, 573 (Ind. Ct. App. 2005), trans. denied(citing Allen v. State, 813 N.E.2d 349, 360 (Ind. Ct. App. 2004), trans. denied)(“In assessing whether an identification procedure ran afoul of due process standards, we must determine whether, under the totality of the circumstances, the identification process was conducted in such a manner that it created a substantial likelihood of irreparable misidentification.”)

Applying the test to lineups

• [T]o warrant exclusion, the lineup must not only have been suggestive but that there must also have been a substantial likelihood of misidentification resulting from such suggestiveness.

Fields v. State, 333 N.E.2d 742, 744 (Ind. 1975)(citing Neil v. Biggers, 409 U.S. 188, 198-200 (1972))

• [T]he following factors [are] to be weighed in evaluating such likelihood: [1] the opportunity of the witness to view the criminal at the time of the crime, [2] the witness’ degree of attention, [3] the accuracy of the witness’ prior description of the criminal, [4] the level of certainty demonstrated by the witness at the confrontation and [5] the length of time between the crime and the confrontation.

Fields v. State, 333 N.E.2d 742, 744 (Ind. 1975)

Applying the test to showups

• “The United States Supreme Court and the Indiana Supreme Court have both condemned the practice of conducting a one-on-one show-up because of its inherent suggestiveness,” but “identification evidence gathered via a show-up procedure is not subject to a per se rule of exclusion.”

Gordon v. State, 981 N.E.2d 1215, 1218 (Ind. Ct. App. 2013)(quoting Mitchell v. State, 690 N.E.2d 1200, 1203 (Ind. Ct. App. 1998), reh'g denied, trans. denied)

See Wethington v. State, 560 N.E.2d 496, 501 (Ind. 1990)(citations omitted)(“The practice of conducting a one-on-one show-up between a suspect and a victim has been widely condemned as being inherently suggestive. Identification evidence gained from such show-ups, however, is not subject to a per se rule of exclusion.”)

• Rather, the admissibility of the evidence turns on an evaluation of whether, under the totality of the circumstances, the confrontation procedure was conducted “in such a fashion as to lead the witness to make a mistaken identification.”

Wethington v. State, 560 N.E.2d 496, 501 (Ind. 1990)(quoting Dillard v. State, 274 N.E.2d 387, 389 (Ind. 1971))

See McBride v. State, 992 N.E.2d 912, 919 (Ind. Ct. App. 2013), reh'g denied, trans. denied(citing Gordon v. State, 981 N.E.2d 1215, 1218 (Ind. Ct. App. 2013))(“Rather, the admissibility of show-up identification evidence turns on an evaluation of the totality of the circumstances and whether those circumstances lead to the conclusion that the confrontation was conducted in a manner that could guide a witness into making a mistaken identification.”)

• The Indiana Supreme Court has identified a number of factors to be considered in determining whether a show-up is likely to lead to a misidentification. They include: (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the length of initial observation of the criminal, (3) lighting conditions, (4) distance between the witness and the criminal, (5) the witness’s degree of attention, (6) the accuracy of the witness’s prior description of the criminal, (7) the level of certainty demonstrated by the witness, and (8) any identifications of another person. Also to be considered is the length of time between the commission of the crime and the show-up procedure.

Mitchell v. State, 690 N.E.2d 1200, 1204 (Ind. Ct. App. 1998), reh'g denied, trans. denied

Gordon v. State, 981 N.E.2d 1215, 1218 (Ind. Ct. App. 2013)(citing Mitchell v. State, 690 N.E.2d 1200, 1204 (Ind. Ct. App. 1998), reh'g denied, trans. denied)(“Our courts consider the following factors in evaluating the admissibility of a show-up identification . . . .”)

Cf. Rasnick v. State, 2 N.E.3d 17, 23 (Ind. Ct. App. 2013), trans. denied(citing Adkins v. State, 703 N.E.2d 182, 186 (Ind. Ct. App. 1998))(“We review challenges to show-up identifications by examining the totality of the circumstances surrounding the identification, including (1) the opportunity of the witness to view the offender at the time of the crime; (2) the witness’s degree of attention while observing the offender; (3) the accuracy of the witness’s prior description of the offender; (4) the level of certainty demonstrated by the witness at the identification; and (5) the length of time between the crime and the identification.”)

Applying the test to photo arrays

• In determining whether a photo array is unduly suggestive as to create a danger of an irreparable mistaken identification, the totality of the circumstances of the case is reviewed.

Wade v. State, 718 N.E.2d 1162, 1167 (Ind. Ct. App. 1999), reh’g denied, trans. denied(citing Johnson v. State, 659 N.E.2d 194, 197 (Ind. Ct. App. 1995), reh’g denied)

See Lewis v. State, 898 N.E.2d 429, 432 (Ind. Ct. App. 2008), trans. denied(quoting Williams v. State, 774 N.E.2d 889, 890 (Ind. 2002))(“A photographic array is impermissibly suggestive if it raises a substantial likelihood of misidentification given the totality of the circumstances.”)

• “Factors to be considered in evaluating the likelihood of a misidentification include (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness’s degree of attention, (3) the accuracy of the witness’s prior description of the criminal, and (4) the level of certainty demonstrated by the witness.”

Parker v. State, 698 N.E.2d 737, 740 (Ind. 1998)(quoting Farrell v. State, 622 N.E.2d 488, 493-94 (Ind. 1993))

See Wade v. State, 718 N.E.2d 1162, 1167 (Ind. Ct. App. 1999), reh’g denied, trans. denied(citing Johnson v. State, 659 N.E.2d 194, 197 (Ind. Ct. App. 1995), reh’g denied)(“The factors to be considered include: (1) the opportunity of the witness to view the defendant at the scene of the crime; (2) the degree of attention given by the witness; (3) prior descriptions given by the witness regarding the defendant; and (4) the level of certainty illustrated by the witness.”)

• Among other factors the court may consider are (1) the manner and form in which the police asked the witness to identify the suspect and the witness’s interpretation of their directives and (2) whether the police focused on the defendant as the prime suspect, either by their attitude or the makeup of the photo array.

Parker v. State, 698 N.E.2d 737, 740 (Ind. 1998)(citing Bell v. State, 622 N.E.2d 450, 454 (Ind. 1993), overruled on other grounds by Jaramillo v. State, 823 N.E.2d 1187, 1188-90 (Ind. 2005), cert. denied, 546 U.S. 1030 (2005))

J.Y. v. State, 816 N.E.2d 909, 913 (Ind. Ct. App. 2004), trans. denied(citing Parker v. State, 698 N.E.2d 737, 740 (Ind. 1998))

• “Our [S]upreme [C]ourt has held that a photo array is impermissibly suggestive only where the array is accompanied by verbal communications or the photographs in the display include graphic characteristics that distinguish and emphasize the defendant's photograph in an unusually suggestive manner.”

Lewis v. State, 898 N.E.2d 429, 432 (Ind. Ct. App. 2008), trans. denied(quoting Allen v. State, 813 N.E.2d 349, 360 (Ind. Ct. App. 2004), trans. denied)(alteration in the original)

See Payne v. State, 687 N.E.2d 252, 254 (Ind. Ct. App. 1997)(citing Lane v. State, 445 N.E.2d 965, 967 (Ind. 1983))(“Due process is only offended when verbal communications accompany the viewing, or unduly suggestive graphic characteristics emphasize the defendant's photograph.”)

See also Pettiford v. State, 506 N.E.2d 1088, 1089 (Ind. 1987)(citing Parker v. State, 415 N.E.2d 709, 710 (Ind. 1981))(“It is only when the display is accompanied by graphic or verbal communications or identification by the police officers that the procedure will be condemned as impermissibly suggestive.”)

Applying the test to voice identifications

• The same safeguards should be followed in voice identification as are followed in visual identification. In either event, the suspect is being “confronted” by a prospective witness. . . . [T]he issue to be resolved is whether or not the procedure employed to make the voice identification was unnecessarily suggestive.

Matthews v. State, 518 N.E.2d 807, 808 (Ind. 1988)

See Chambers v. State, 422 N.E.2d 1198, 1201 (Ind. 1981)(“The question confronting us is whether, under the circumstances of this case, the identification procedure used was overly suggestive.”)

See also Smith v. State, 336 N.E.2d 648, 649 (Ind. 1975)(“A ‘confrontation’ . . . is an occasion when a witness looks at a suspect or listens to a voice for the purpose of attempting to make an identification.”)