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Today was supposed to be a hearing on my Motion to Suppress Unconstitutionally Suggestive Photographic Identification. Surprisingly, the prosecutor agreed my motion was correct and we agreed he would not use the out-of-court identification in an upcoming burglary trial. He also agreed not to have the witness conduct an in-court identification of my client as the individual in surveillance video of a robbery.

The Motion was based on the Idaho Supreme Court’s decision in Wundermann v. State. There the Court identified the factors to be considered in suppressing an out-of-court identification. The key is “reliability.”

In order to determine whether  an identification is reliable, the Court considers these factors: “(1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated at the identification; and (5) the length of time between the crime and the identification.”

In my case, the owner of the business gave a general description of the person she observed on the video. The owner then got “still captures” (think a single frame) of a video feed and reviewed them. She initially said she thought the person in the frame was named “Vicki.” The police officer believed the person was Vicki’s sister “Michelle” and told the owner of Michelle’s existence and the fact she is Vicki’s sister. The owner  proceeded to search Facebook for pictures of Michelle. There was no evidence the person had ever heard of Michelle before the police mentioned her.

My argument was because the police officer directed the identification of Michelle, it was unconstitutionally suggestive. Apparently the prosecutor agrees. We have stipulated to “suppress” the identification.

Trial in this case is in June. I’ll be sure to post an update following the trial to let you know how it all turned out.

If you are interested, here is a link to my memorandum laying out my argument. 2017-04-28 Memorandum in Support of Mtn to Suppress Photographic Identification