• For information about the admissibility of evidence of out-of-court identifications in photo arrays, please review Admissibility.
Suggestivity in photo arrays: Physical appearance of the individuals in the photographs
• Mere variation in the appearance of individuals in an array does not automatically render the array impermissively [sic] suggestive.
See Swartz v. State, 597 N.E.2d 977, 980 (Ind. Ct. App. 1992), reh’g denied, trans. denied(citing Webster v. State, 579 N.E.2d 667, 670 (Ind. Ct. App. 1991))(“Mere variation in individual appearances does not render a photographic array impermissibly suggestive.”)
See also Wade v. State, 718 N.E.2d 1162, 1167 (Ind. Ct. App. 1999), reh’g denied, trans. denied(citing McGowan v. State, 599 N.E.2d 589, 592 (Ind. 1992))(“The Indiana Supreme Court has held that where the individuals pictured in a photo array vary in appearance, the array is neither unusual nor impermissibly suggestive.”)
• There is no requirement that law enforcement officers “perform the improbable if not impossible task of finding four or five other people who are virtual twins to the defendant.”
• It is sufficient if the defendant “does not stand out so strikingly in his characteristics that he virtually is alone with respect to identifying features.”
See J.Y. v. State, 816 N.E.2d 909, 912 (Ind. Ct. App. 2004), trans. denied(citing Farrell v. State, 622 N.E.2d 488, 494 (Ind.1993))(“Our supreme court has held that a photo array is not impermissibly suggestive if the defendant ‘does not stand out so strikingly in his characteristics that he virtually is alone with respect to identifying features.’”)
• We do not perceive that the fact that [the defendant] wore a dark t-shirt or had a hair style slightly different from the others resulted in an impermissibly suggestive array.
But see J.Y. v. State, 816 N.E.2d 909, 915 (Ind. Ct. App. 2004), trans. denied(“We agree with J.Y. that this case is distinguishable from Harris and Farrell. In both of those cases, the court noted only slight differences in the defendants’ physical appearances compared to the other men in the photo arrays. But here, there are essentially two sets of photographs in the array. One set consists of J.Y. and his two brothers, each wearing a white t-shirt, with T.Y. and J.Y. looking exactly alike, not smiling, with faces in shadow, and with white backgrounds. The other set of photographs consists of the other three boys, who are all posed, smiling, and wearing dress clothes. A.B. never described what the perpetrators were wearing at the time of the attack. Given her young age, A.B. might well be inclined to believe that the boys wearing dress clothes and smiling were not her attackers. As a whole, the remarkable differences in appearance between J.Y. and his brothers and the other three boys, including their clothing and demeanor, and the difference in the quality and composition of the two sets of photographs, render the photo array impermissibly suggestive.”)
• The array consisted of six white males who were similar to one another in age, facial characteristics and body type. The fact they all did not have a mustache does not constitute by and of itself an impermissibly suggestive array.
Suggestivity in photo arrays: Number of photographs in the photo array
• Indiana courts have recommended that photo arrays consist of at least five or six individuals. Depending upon the surrounding circumstances, however, an array of fewer than five does not render the testimony regarding the identification inadmissible per se.
See Johnson v. State, 277 N.E.2d 791, 794 (Ind. 1972)(“Although the use of more than five photographs would have been highly desirable we cannot say that this alone made the procedure overly suggestive.”)
See also Hoskins v. State, 486 N.E.2d 593, 595 (Ind. Ct. App. 1985)(citing Johnson v. State, 277 N.E.2d 791, 794 (Ind. 1972))(“[T]he use of five photographs for a pre-trial identification has been upheld-although not wholeheartedly endorsed-by our Supreme Court.”)
• Indiana courts have recommended that photo arrays consist of at least five or six individuals. Thus, where, as here, two suspects are included in the same array, the recommended total number of photos would be ten or twelve. An array containing fewer than the recommended number does not render the testimony regarding the identification inadmissible per se.
• The display of a single photograph of the defendant to a lay witness is impermissibly suggestive.
Terry v. State, 857 N.E.2d 396, 409 (Ind. Ct. App. 2006), trans. denied(citing Dorsey v. State, 490 N.E.2d 260, 267 (Ind. 1986), reh’g denied, overruled on other grounds by Wright v. State, 658 N.E.2d 563, 569 (Ind. 1995))
See also Miles v. State, 764 N.E.2d 237, 240 (Ind. Ct. App. 2002), trans. denied(citing Brown v. State, 577 N.E.2d 221, 225 (Ind. 1991), reh'g denied, cert. denied, 506 U.S. 833 (1992))(“Our supreme court has long held that the extrajudicial exhibition of a single photograph to a victim is an unduly suggestive identification procedure.”)
But see Bennett v. State, 416 N.E.2d 1307, 1310 (Ind. Ct. App. 1981)(citing Dowdell v. State, 374 N.E.2d 540, 542 (Ind. Ct. App. 1978))(“[E]ven the use of one picture, for identification purposes, of a suspect is not per se impermissibly suggestive as there is no set number of photographs which must be shown to a witness in a pre-trial display. Again, the test is one of a ‘totality of the circumstances.’”)
• [The defendant] bases his allegation upon the fact that police officers, with the consent of the prosecuting attorney, took six photographs, all of [the defendant], to the victim and her father for identification. … He argues that six photographs of the same person are no better than one photograph, and we agree with that observation.
But see Henson v. State, 467 N.E.2d 750, 753 (Ind. 1984)(citing Bennett v. State, 416 N.E.2d 1307, 1310 (Ind. Ct. App. 1981))(“[The defendant] claims it was error to show State’s witness Marley only pictures of [the defendant] and Tyler. This is not necessarily true. Even the use of one picture for identification purposes of a suspect is not per se impermissibly suggestive.”)
• However, when a police officer who is both an investigator and a witness views a single photograph in order to verify a suspect’s identity, the identification procedure is not unduly suggestive.
Suggestivity in photo arrays: Nature of the photographs
• It is better practice for police officers not to use mugshots, or to cover any police identification markings on them if mugshots are used. We have never established, however, a strict rule against the display of such photographs to witnesses. The nature of the photograph is only one factor to be considered.
• To show undue suggestiveness, defendants also point to the existence of colored dots on the mug shots taken by Officer Poling. They argue the dots were used to steer him to make certain identifications. The record shows the dots were used by the prosecution merely for their own organizational efforts. Officer Poling stated he had no knowledge of their purpose. Further, there is no evidence he relied on them in making any identifications.
• After examining the photographic array in this case, we find the white sheet backdrop in [the defendant’s] photograph was very similar to the white cinderblock backgrounds in the other five photographs. The difference, if any, was barely discernible and certainly was not impermissibly suggestive.
• The fact the color backgrounds of the photographs varied does not create an unduly suggestive array.
Suggestivity in photo arrays: Independent actions of the identification witness
• [The defendant] also asserts that the photographic display was impermissibly suggestive because the witness was permitted to block out portions of the photograph of the defendant … .The record reveals that the witness blocked out the hair in the photograph on her own initiative because the hair style in the photograph was different from that worn by the defendant. Nothing in these circumstances supports an inference that the photographic array identification was tainted by impermissibly suggestive procedures.
• Here, the pre-trial identification procedure was not impermissibly suggestive. As the State correctly notes, [the witness] was not identifying an unknown assailant. To the contrary, it was [the witness] who initially and affirmatively told the police that his attacker was “Anthony Neukam.” Although [the witness] had not previously met Neukam before the attack, he had seen pictures of him at [a third-party’s] house and online. It was only after [the witness] had identified Neukam by name that the police showed [the witness] a photo of Neukam to confirm [the witness’s] earlier identification.