finding the identification reliable in part because there was no evidence that the eyewitnesses “were panicked or otherwise psychologically debilitated by the crime” and noting that the eyewitnesses— bank tellers—relied on their training and reacted calmly during the bank robbery
How later courts described this case
- finding the identification reliable in part because there was no evidence that the eyewitnesses “were panicked or otherwise psychologically debilitated by the crime” and noting that the eyewitnesses— bank tellers—relied on their training and reacted calmly during the bank robbery
- stating that differences among participants in a lineup are “significant only to the extent they . . . substantially distinguish defendant from the other participants in the line-up . . . .”
- stating that “differences in the composition of the photographs,” does not “render a lineup impermissibly suggestive”
- discussing a case in which “the defendant was the only man of thirteen men depicted in a photographic array who was wearing glasses,” and “the witnesses admitted selecting the photograph on the basis of the glasses”
Written by the judges who cited it.
Later courts went against this
Overruled in part, on other grounds by People v. Hickman, 470 Mich. 602 (2004)
505 NW2d 528 (1993) (opinion by GRIFFIN, J.), overruled in part on other grounds by People v Hickman, 470 Mich 602, 603-604
The opinion
Boyle, J.
(concurring in part and dissenting in part). I concur in all but part iv of Justice Griffin’s opinion.
The admission of the testimony of branch manager Schultz does not rise to the level of a cognizable claim of denial of due process. First, defendant has, minimally, the burden of coming forward on this issue, and there is no record basis indicating impermissible police conduct. Commonwealth v Otsuki, 411 Mass 218, 233; 581 NE2d 999 (1991). Defendant contends that the witness’ statement implies that she was shown photographs. However, the witness merely stated, "I identified [the defendant] from the picture my camera took.” Ante at 315.
Second, even assuming that law enforcement officials showed Mrs. Schultz the picture that "her camera took,” due process would be offended only if the police had done something that "was so suggestive in light of the totality of the circumstances that it led to a substantial likelihood of misidentification,” ante at 302, citing Neil v Biggers, 409 US 188, 196 ; 93 S Ct 375 ; 34 L Ed 2d 401 (1972). Unlike situations where the police are alleged to have manipulated a photographic display or photo opportunity to persuade the witness to misidentify a targeted subject, in the instant case, there is no record basis indicating "pressure on the witness to acquiesce” in the identification of *319 the defendant. Manson v Brathwaite, 432 US 98, 116 ; 97 S Ct 2243 ; 53 L Ed 2d 140 (1977). The surveillance photograph was of the actual perpetrator. "Little possibility of misidentification arises from the use of photographs depicting 'the likeness not of some possible suspect in the police files, but of the [person] who actually committed the robbery.’ ” United States v Stubblefield, 621 F2d 980, 983 (CA 9, 1980). The identification by the witness was based on her appraisal of the defendant’s resemblance to the surveillance photograph image of the true perpetrator. Thus, the risk that Mrs. Schultz would misidentify the defendant was no greater than the risk that the jurors, comparing the defendant with the same surveillance photographs, would misidentify the defendant.
While the foundation for Mrs. Schultz’ testimony may have been deficient in that it was not based on an actual observation of the robber, no lack-of-foundation objection was made in the trial court. Further review is unnecessary.
Riley, J., concurred with Boyle, J.