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46. Should the court grant the motion and suppress the store owner's trial testimony identifying the defendant as the robber?
The defendant was indicted for the robbery. His counsel moved to suppress any trial testimony by the store owner identifying the defendant as the robber.
A store owner whose jewelry store had recently been robbed was shown by a police detective a photograph of the defendant, who previously had committed other similar crimes. The store owner examined the photograph and then asked the detective whether the police believed that the man pictured was the robber. After the detective said, «We're pretty sure,» the store owner stated that the man in the photograph was the one who had robbed her.
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Once suggestiveness is established regarding the out-of-court identification procedure, the court determines the reliability by weighing «the corrupting effect of the suggestive identification» against reliability factors, including: (i) the witness's opportunity to observe the perpetrator and degree of attention paid at the time of the offense; (ii) accuracy of prior descriptions; (iii) level of certainty at the time of the confrontation; and (iv) the time between the crime and the identification. Manson v. Brathwaite, 432 U.S. 98 (1977).
D is correct. The police using only one photograph and giving the witness a leading statement to confirm the suspect's identity certainly was unduly suggestive and created a substantial likelihood of misidentification. However, the prosecution would still be able to prevail on a motion to suppress the testimony if it could show that the in-court identification by the store owner is reliable.
A is incorrect. Suppression of in-court testimony is indeed a proper remedy when there is a substantial likelihood of misidentification based on an out-of-court identification procedure arranged by the police. In this case, the out-of-court identification process was unduly suggestive, and the facts don't indicate that the prosecution showed that the eyewitness's identification was reliable under a multi-factor test.
B is incorrect. The out-of-court identification that occurred was plainly improper. The police produced only one photograph for the eyewitness to identify, and then went on to say, «We're pretty sure» regarding whether this was the correct suspect. As a result, this procedure arranged by the police was unduly suggestive.
C is incorrect. This answer reaches the correct answer with the wrong reasoning. If the prosecution could establish the reliability of the eyewitness's testimony aside from the improper out-of-court identification process, the defendant's motion to suppress would be denied. Therefore, the tainted out-of-court identification does not necessarily preclude the admission of the in-court testimony.