U.S. v. Baker, 70 M.J. 283

Core Criminal Law Subjects: Evidence: Generally

1. (as set forth in MRE 321(a)(1), MRE 321(a)(2)(B), and MRE 321(d)(2), in determining the admissibility of eyewitness identification, a trial court applies a two-prong test: (1) was a pretrial identification unnecessarily suggestive; and (2) if the pretrial identification was unnecessarily suggestive, was it conducive to a substantial likelihood of misidentification; the second inquiry centers on the reliability of the identification as determined by an application of the five Biggers factors (Neil v. Biggers, 409 US 188 (1973)): the opportunity of the witness to view the criminal at the time of the crime; the witness’s degree of attention; the accuracy of the witness’s prior description of the criminal; the level of certainty demonstrated by the witness at the confrontation; and the length of time between the crime and the confrontation); if a pretrial identification is not unnecessarily suggestive, there is no need to proceed to the Biggers factors to determine whether the identification was conducive to a substantial likelihood of misidentification)
2. against the Biggers reliability factors (Neil v. Biggers, 409 US 188 (1973)) is to be weighed the corrupting effect of the suggestive identification itself
3. even if the pretrial identification is ultimately held inadmissible, MRE 321(d)(2) provides that a later identification may be admitted if the prosecution proves by clear and convincing evidence that the later identification is not the result of the inadmissible identification
4. with respect to pretrial identification, suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous
5. with respect to pretrial identification, showing a suspect singly to a victim is pregnant with prejudice; the message is clear: the police suspect this man; that carries a powerfully suggestive thought; when the subject is shown singly, havoc is more likely to be played with the best-intended recollections
6. in this case, weighing the evidence in the light most favorable to the prevailing party, the military judge did not abuse his discretion when he held that the initial pretrial identification procedure in which the assault victim was shown a single digital photograph of the accused, following a police officer’s comment that they had found someone that the victim should take a look at, was unnecessarily suggestive; in addition, the image of the accused shown to the victim was displayed on a relatively small digital camera screen and depicted a bike rider without a helmet or sunglasses, unlike the bike rider that the victim had encountered; and, the victim only mentioned that the accused might have had a mustache after she viewed the image, and only then did the police officer zoom-in on the image and confirm the mustache; these factors, coupled with the suggestive nature of a show-up photo identification procedure, created a scenario that was unnecessarily suggestive
7. in this case, under the totality of the circumstances, the assault victim’s identification of the accused as her assailant, following an unnecessarily suggestive pretrial identification procedure in which the victim was shown a single digital photograph of the accused, was not reliable, supporting suppression of the identification, where although the victim gave an accurate description of the accused and had a high level of certainty in the accuracy of her description, she was nearsighted and had only a few moments to view her attacker, who was wearing a helmet and sunglasses, and was panicked and focused on getting away during their encounter
8. in determining that an assault victim’s in-court identification of the accused was the result of an impermissibly suggestive show-up pretrial identification procedure in which the victim was shown a single digital photograph of the accused, the military judge did not abuse his discretion where his analysis of the five Biggers factors (Neil v. Biggers, 409 US 188 (1973)) was fairly supported by the record and not clearly erroneous and where his conclusion that the show-up identification was unnecessarily suggestive was not arbitrary or clearly unreasonable

Trial Stages: Writs and Interlocutory Appeals: Article 62 Appeal

1. when reviewing matters under Article 62(b), UCMJ, the CCA may act only with respect to matters of law; when a court is limited to reviewing matters of law, the question is not whether a reviewing court might disagree with the trial court’s findings, but whether those findings are fairly supported by the record
2. the CCA has no authority to find facts in an Article 62, UCMJ, appeal

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews a military judge’s ruling on a motion to suppress for abuse of discretion; it reviews the judge’s factfinding under the clearly-erroneous standard and conclusions of law under the de novo standard; thus on a mixed question of law and fact, a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect; the abuse of discretion standard calls for more than a mere difference of opinion; the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous
2. when reviewing a ruling on a motion to suppress, an appellate court considers the evidence in the light most favorable to the prevailing party
3. where a military judge provides a detailed ruling on pretrial eyewitness identification evidencing an accurate understanding of the Biggers reliability factors (Neil v. Biggers, 409 US 188 (1973)) and their application to the facts on the record, an appellate court gives deference to his ruling in its analysis
4. with respect to pretrial identification, reviewing courts must determine whether under the totality of the circumstances the pretrial identification procedure was reliable even though the confrontation procedure itself was unnecessarily suggestive