In 1969, the Arizona Supreme Court dealt with pretrial identification procedures in Dessureault, a case involving a robbery suspect described as having a beard and moustache whose photo was placed in a photo lineup where every other person in the lineup was clean shaven. The argument was obviously that the only person in the lineup that could possibly be the suspect was the one person who was not clean shaven. The Arizona Supreme Court said that a line-up of this nature has no virtue as a test of the witnesses ability to discriminate or distinguish the suspect from others. While a lineup does not require the individuals in it to be identical in size, shape, and dress, the differences in the individuals must be subtle and not so suggestive as to be deemed excessive.
The Dessureault Court mandated a three-step approach in determining if a pre-trial identification was so unduly suggestive that it would taint the proposed in-court identification. Before the process is undertaken, the Defense must challenge the validity of the proposed in-court identification. First, the trial court has to hold a hearing (outside of the jury) during which the judge must find by clear and convincing evidence that the pre-trial identification process contained unduly suggestive circumstances.
At this hearing, the burden is on the State to convince the judge that the identification was not unduly suggestive. Second, if the court determines that the pre-trial identification was unduly suggestive then the State must satisfy the judge by clear and convincing evidence that the proposed in-court identification will not be tainted by the prior unduly suggestive identification. Only if this second burden is met can there be an in-court identification.
Finally, if the Defense requests a Dessureault instruction be given to the jury then the judge must instruct the jury that they must be satisfied beyond a reasonable doubt that the in-court identification was "independent" of the previous pretrial identification. If the jury finds that the in-court identification was not obtained from an independent source, then the jury has to find the identification through some other evidence.
While identification can be a big issue in many serious cases, in the four decades that have followed theDessureault decision, there have been many cases indicating that the Courts are willing to characterize most differences among individuals in photo lineups as "subtle."
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