The defendant argued that the photo array in which he appeared was impermissibly suggestive under the Due Process Clause because he was the only person with an ear tattoo.  The court disagreed because the distinctive tattoo was barely visible in the photo.

Editor’s Note: This case has a good discussion of the 2-step test a court applies when a challenge has been made to identification evidence under Due Process Clause.  First, the court must determine “whether the identification procedure was impermissibly suggestive.  If the procedure was impermissibly suggestive, the court must then decide whether, under the totality of the circumstances,” the identification was nonetheless sufficiently reliable to preclude ‘a very substantial likelihood of irreparable misidentification. The key factors at the second step are “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of [her] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.”   The court must weigh these factors against “the corrupting effect of the suggestive identification itself.”

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