Successive Identification Procedures
A photo array followed by a lineup
• A lineup which includes someone earlier identified from photographs is not rendered impermissibly suggestive so long as there is no suggestion to the identifying witness that the individual selected by the photograph would be in the lineup.
See Little v. State, 475 N.E.2d 677, 682 (Ind. 1985)(citing Woodson v. State, 460 N.E.2d 970, 972 (Ind. 1984))(“A lineup identification is not rendered impermissibly suggestive by reason of precedent identification of defendant from a photographic array where there is no suggestion to the identifying witness that the individual selected by the photograph would be in the lineup.”)
• [The defendant] also contends that the testimony describing the pre-trial identification of [the defendant] by the witness at the live line-up was erroneously permitted because that procedure was rendered unduly suggestive by reason of the precedent identification of [the defendant] by photograph. The employment of that earlier procedure was not itself impermissibly suggestive of guilt as has been concluded and therefore did not illegally taint the line-up results.
A photo array followed by a second photo array
• [T]he fact that the two arrays both contained pictures of [the defendant] does not constitute undue suggestiveness. This is particularly true since photographs of three people other than [the defendant] were also included in both arrays.
• The defendant points to the fact that the two arrays considered by the victim each had only one picture in common—that of the defendant. While we could not say that in another case the repetitive display of one individual’s visage would not constitute undue suggestiveness, we believe differently about the circumstances of this case. The victim viewed only two arrays. The first array contained a photograph of the defendant which was four years old. The second array, from which the defendant’s photograph was chosen was quite dissimilar from the first (the defendant having gained eighty pounds), and had been taken just two weeks after the crime. As stated, in neither case did the defendant’s photograph stand out from the others.
• [The defendant] argues that the display of only three or four photographs on the second showing tended to give the impression to the victim that the police believed the attacker’s picture was in this group. It does not appear that this was the outcome here. The victim examined a large number of photographs and said she could not find her attacker except for a possibility that one photograph could be him because some of his features were present. On a second viewing, however, with no encouragement from the police, she positively identified the defendant and testified that there was no question in her mind when she saw the defendant’s photograph that this was the man. There was nothing impermissibly suggestive about this procedure so that the results of it render the testimony inadmissible.
A lineup followed by a showup followed by a second lineup
• [T]his case presents a compelling example of unfair lineup procedures. In the first lineup arranged by the police, [the defendant] stood out from the other two men by the contrast of his height and by the fact that he was wearing a leather jacket similar to that worn by the robber. When this did not lead to positive identification, the police permitted a one-to-one confrontation between [the defendant] and the witness. . . . Even after this the witness’ identification of [the defendant] was tentative. So some days later another lineup was arranged. [The defendant] was the only person in this lineup who had also participated in the first lineup. This finally produced a definite identification. . . . The suggestive elements in this identification procedure made it all but inevitable that [the witness] would identify [the defendant] whether or not he was in fact ‘the man.’ In effect, the police repeatedly said to the witness, ‘This is the man.’ This procedure so undermined the reliability of the eyewitness identification as to violate due process.