The opinion
MR. JUSTICE SCHAEFER, dissenting.
I cannot agree that a judgment of conviction should be affirmed in this case.
The defendant was in the custody of the police when the prosecutrix was shown the photographs. No reasons of necessity — or even of convenience — are suggested in the majority opinion to justify this blatantly improper conduct which makes it impossible to tell whether her subsequent lineup identification was based upon her recognition of the photograph or her recognition of the actual offender. (See Simmons v. United States, 390 U.S. 377, 383 , 19 L.Ed.2d 1247, 1253 , 88 S.Ct. 967 .) As Judge Stouder stated in his dissenting opinion in the appellate court, “The only apparent reason for such procedure is the reason for which such practice is condemned namely the creation of a predisposition by the witness to later re-identify the suspect.” (131 Ill.App.2d at 683, 267 N.E.2d 142, at 153 .) While the majority in this court assert that cross-examination failed to expose any potential for error in the photographic identification procedures, it seems obvious that there was no realistic possibility of showing such a potential by cross-examination, since the police officers had kept no record of the photographs or of the identity of the persons whose photographs were used.
It should also be noted that the majority of the appellate court in this case apparently acted upon the erroneous assumption that an alibi is an affirmative defense and that the burden rested upon the defendant to establish it. See People v. Pearson, 19 Ill.2d 609, 614 ; People v. Johnson, 23 Ill.2d 465, 468 ; People v. Nicholls, 42 Ill.2d 91 ; People v. Collins, 49 Ill.2d 179, 188-191 .