Admissibility
• For information about the admissibility of evidence of out-of-court identifications in showups, please review Admissibility.
Suggestivity in showups: Length of time between the commission of the crime and the showup
• [A] pretrial confrontation occurring immediately after the commission of the crime is not per se unduly suggestive even though the accused is the only suspect present.
Adkins v. State, 703 N.E.2d 182, 185 (Ind. Ct. App. 1998)(citing Cook v. State, 403 N.E.2d 860, 864 (Ind. Ct. App. 1980))
See Hill v. State, 442 N.E.2d 1049, 1052 (Ind. 1982)(citing Whitlock v. State, 426 N.E.2d 1292, 1293 (Ind. 1981))(“Confrontations immediately after the crime, however, are not per se improper, for it is valuable to have the witness view a suspect while the image of the perpetrator is fresh in the witness's mind; indeed, the immediacy of the incident substantially diminishes the potential for misidentification.”)
• “‘Identifications of a freshly apprehended suspect have been held to be not unnecessarily suggestive despite the suggestive factors unavoidably involved in such confrontations because of the value of the witness's observation of the suspect while the image of the offender is fresh in his mind.’”
Rasnick v. State, 2 N.E.3d 17, 23 (Ind. Ct. App. 2013), trans. denied(quoting Lyles v. State, 834 N.E.2d 1035, 1044-45 (Ind. Ct. App. 2005), reh'g denied, trans. denied(quoting Lewis v. State, 554 N.E.2d 1133, 1135 (Ind. 1990), reh'g denied))
See Hubbell v. State, 754 N.E.2d 884, 892 (Ind. 2001)(quoting Head v. State, 443 N.E.2d 44, 55 (Ind. 1982))(“We have permitted such procedures when they occur shortly after the commission of the crime ‘because of the value of permitting a witness to view a suspect while the image of the perpetrator is fresh in the witness's mind.’”)
See also Leslie v. State, 558 N.E.2d 813, 815 (Ind. 1990)(citing Russell v. State, 519 N.E.2d 549, 552 (Ind. 1988))(“They can be useful when held immediately after the crime because they allow the witnesses to view the suspect while the image of the perpetrator is still fresh in their minds.”)
• Thus, a show-up will be viewed more favorably the closer it occurs to the commission of the crime.
Mitchell v. State, 690 N.E.2d 1200, 1204 (Ind. Ct. App. 1998), reh'g denied, trans. denied
• [I]t is permissible for a law enforcement officer to present a suspect for identification within a few hours of the commission of the crime.
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 Clark v. State, 380 N.E.2d 550, 554 (Ind. 1978)(concluding that a showup which took place within hours of the crime was not unduly suggestive, especially in light of exigent circumstances)
See also Dewey v. State, 345 N.E.2d 842, 846 (Ind. 1976)(concluding that showup which took place approximately six hours after the commission of the crimes was not unduly suggestive, in light of exigent circumstances)
But see Hubbell v. State, 754 N.E.2d 884, 892 (Ind. 2001)(citation omitted)(“[T]he ‘single person lineup’ was unduly suggestive. We also find no exigent circumstances requiring this showup, which occurred six hours after [the witness] had seen the white van leaving the parking lot.”)
See also Wethington v. State, 560 N.E.2d 496, 504 (Ind. 1990)(concluding that showups which took place two hours after commission of the crime were impermissibly suggestive)
Suggestivity in showups: Impossibility of alternatives
• [A] show-up is not as offensive where a photo or corporeal lineup are impossible.
Mitchell v. State, 690 N.E.2d 1200, 1204 (Ind. Ct. App. 1998), reh'g denied, trans. denied(citing Wethington v. State, 560 N.E.2d 496, 501 (Ind. 1990))
See Hubbell v. State, 754 N.E.2d 884, 892 (Ind. 2001)(quoting Head v. State, 443 N.E.2d 44, 55-56 (Ind. 1982))(“‘Likewise, one-on-one confrontations have been found proper where circumstances rendered an alternative approach such as a lineup impossible.’”)
Suggestivity in showups: Defendant in custody
• The fact that [the defendant] was handcuffed at the time of the showup does not itself render the process so unduly suggestive that it violated his due process rights.
Rogers v. State, 537 N.E.2d 481, 484 (Ind. 1989), reh’g denied(citing Dudley v. State, 480 N.E.2d 881, 899 (Ind. 1985))
• [The defendant’s] argument that returning him to the scene by himself, in a police car, while handcuffed, was unduly suggestive is not novel. . . . We find the one on one confrontation between [the defendant] and [the witness] was not impermissibly suggestive.
Coker v. State, 455 N.E.2d 319, 321 (Ind. 1983)
• The offense occurred in an auto during daylight hours in a shopping center parking lot and immediately thereafter the victim exited the car screaming. She drew attention to her assailant who was fleeing on foot. Within minutes she gave a detailed description of the man which included his clothing, jewelry, hair, size and fingernail length, to a security guard and within half an hour a police car drove up. [The defendant] was in custody in the car. An officer asked the victim whether [the defendant] was the man who had attacked her and she replied that he was the man. [The defendant] fit the description given by the victim. The procedures employed by the police here involved no more than the usual elements attendant to any police conducted on-the-scene confrontation and to the extent that it was suggestive, it was not unnecessarily so.