• The in-court identification by a witness who had participated in an impermissibly suggestive out-of-court identification proceeding is admissible if an independent basis for the in-court identification is established.
See Swigeart v. State, 749 N.E.2d 540, 544 (Ind. 2001)(citing Young v. State, 700 N.E.2d 1143, 1146 (Ind. 1998))(“[A] witness who participates in an improper pretrial identification procedure may still identify a defendant in court if the totality of the circumstances shows clearly and convincingly that the witness has an independent basis for the in-court identification.”)
See also Allen v. State, 439 N.E.2d 615, 618 (Ind. 1982)(citing Kursley v. State, 432 N.E.2d 1337, 1338 (Ind. 1982))(“Regardless of any suggestiveness involved in the pretrial procedure, the trial court is correct in refusing to suppress the in-court identification testimony of the witness if the court can properly find that such testimony is supported by a basis independent from the pretrial procedure.”)
Burden of proof
• At trial, the State bears the burden of producing clear and convincing evidence of an independent basis.
See Love v. State, 365 N.E.2d 771, 773 (Ind. 1977)(citing Swope v. State, 325 N.E.2d 193, 197 (Ind. 1975), cert. denied, 423 U.S. 870 (1975))(“The State bears the burden in the trial court of producing ‘clear and convincing evidence’ of an independent basis.”)
See also Brown v. State, 577 N.E.2d 221, 225 (Ind. 1991), reh'g denied, cert. denied, 506 U.S. 1015 (1992)(“To determine whether [the witness’s] in-court identification was permissible in [the defendant’s] trial requires determining whether there was clear and convincing evidence that the witness had an adequate independent basis for her in-court identification.”)
Determining the existence of an “independent basis”
• The inquiry with reference to the in-court identification is whether, under the totality of the circumstances surrounding the witness's initial observation of the perpetrator at the scene of the crime, the witness could resist any suggestiveness inherent in the improper [pretrial] confrontation staged by the police and make an accurate decision, based on that earlier contact with the perpetrator, that the person presented to him at trial was the one who committed the crime.
See Rasnick v. State, 2 N.E.3d 17, 25 (Ind. Ct. App. 2013), trans. denied(“In determining whether an independent basis for the in-court identification exists, the inquiry is whether, under the totality of the circumstances surrounding the witness's initial observation of the perpetrator at the scene of the crime, the witness could (1) resist any suggestiveness inherent in the improper show-up staged by the police and (2) make an accurate in-court identification based on that earlier observation.”)
See also Remsen v. State, 428 N.E.2d 241, 243 (Ind. 1981)(citation omitted)(“The question whether an independent basis exists is resolved by examining the ‘totality of the circumstances’ surrounding the opportunity of the witness to observe the perpetrator at the scene of the crime, as well as the facts regarding the suggestive confrontation.”)
Cf. Brown v. State, 577 N.E.2d 221, 225 (Ind. 1991), reh'g denied, cert. denied, 506 U.S. 1015 (1992)(citing Dorsey v. State, 490 N.E.2d 260, 267 (Ind. 1986), reh’g denied)(“This review searches ‘the totality of the circumstances pertaining to the witness' opportunity to observe the perpetrator during the commission of the crime . . . .’”)
• Although not an exhaustive list, the factors to be considered in determining whether an independent basis exists include: (1) the amount of time the witness was in the presence of the perpetrator; (2) the distance between the witness and the perpetrator; (3) the lighting conditions at the time; (4) the witness's degree of attention to the perpetrator; (5) the witness's capacity for observation; (6) the witness's opportunity to perceive particular characteristics of the perpetrator; (7) the accuracy of any prior description of the perpetrator by the witness; (8) the witness's level of certainty at the pre-trial identification; and (9) the length of time between the crime and the identification.
Cf. Terry v. State, 857 N.E.2d 396, 410 (Ind. Ct. App. 2006), trans. denied(quoting Wethington v. State, 560 N.E.2d 496, 503 (Ind. 1990))(alteration in the original)(“Our supreme court has identified seven factors that are relevant to determining whether a witness has a sufficient independent basis: ‘ the amount of time the witness was in the presence of the perpetrator and the amount of attention the witness had focused on him,  the distance between the two and the lighting conditions at the time,  the witness's capacity for observation and opportunity to perceive particular characteristics of the perpetrator,  the lapse of time between the crime and the subsequent identification,  the accuracy of any prior descriptions,  the witness's level of certainty at the pre-trial identification and  the length of time between the crime and the identification.’”)
• An in-court identification does not become invalid merely because an extended time passes between the time of the crime and the initial identification.
• [The defendant] argues that scientific studies have demonstrated that a witness's estimation of the duration of events are usually overstated, especially where the witness was under stress or anxiety. . . . Studies have also shown that witnesses subject to violence are less accurate in identification. . . . Be that as it may, given conditions more violent than those experienced by [the witness in this case], Indiana courts have repeatedly held that a witness possessed an independent basis for an in-court identification. . . . The violence of an encounter may well be a factor to consider in determining the accuracy of identification. However, we cannot say that a victim of a violent crime cannot possess an independent basis for an in-court identification.
Suggestiveness of in-court identifications
• There is a degree of suggestiveness which is inherent in all in-court identifications; the practical necessity of having the [defendant] sit at the defendant's table with defense counsel naturally sets him apart from everyone else in the courtroom.
• This type of suggestiveness cannot be avoided because the defendant has a constitutional right to attend his trial and confront the witnesses against him.
See Jeter v. State, 888 N.E.2d 1257, 1266 (Ind. 2008), cert. denied, 555 U.S. 1055 (2008)(“Because of a criminal defendant's right to be present and confront his accusers, some amount of suggestiveness in this case could not be avoided.”)
See also Holland v. State, 412 N.E.2d 77, 79 (Ind. 1980),reh’g denied(“[I]n light of the defendant's constitutional right to attend his own trial and confront the witnesses against him, that suggestiveness can not be avoided.”)
• Suggestiveness is proscribed only when it can reasonably be avoided under the circumstances.
• [A]bsent any extraordinary effort to single out the defendant at trial, in-court identification is not unduly suggestive where the witness is firm in his identification.
See Emerson v. State, 724 N.E.2d 605, 609 (Ind. 2000), reh'g denied(citation to the record omitted)(“Here, no extraordinary effort was made to single out [the defendant] at trial, and the witness professed no doubt as to the identity of his assailant.”)
• Surely one of the most suggestive procedures is one in which no pre-trial confrontation takes place at all and a witness is asked at trial, months later, to identify the guilty party; the mere fact that the defendant is sitting behind the defense table clearly suggests that the state believes him to be the culpable individual. Should that be held violative of the right to due process? Clearly not.
When prosecution or law enforcement agencies did not engineer the pretrial identification procedure
• [The defendant] argues that the trial court abused its discretion in allowing in-court identifications of him by [witnesses] because the identifications were the result of an unnecessarily suggestive pre-trial procedure engineered by the State. . . . In order to succeed on this argument, the defendant must demonstrate that law enforcement personnel or the prosecutors were responsible for the unnecessarily suggestive identification procedure.
• Due process grounds, of course, form the basis for the rule laid down in Stovall v. Denno and its progeny that the identification of a defendant subsequent to an unconstitutionally suggestive confrontation is inadmissible, so long as no “independent basis” for the identification exists. In order to invoke the rule, however, the evidence must reveal that law enforcement agencies or the prosecution engineered the confrontation between the defendant and the witness. The rule established in Stovall is predicated on the due process clauses of the Fifth and Fourteenth Amendments, which protect the accused from abuse of his or her procedural rights by the State. Accordingly, in cases where the evidence has not revealed that the State arranged the confrontation under attack, courts have refused to apply the Stovall rule.
• A witness' viewing of a suspect's photograph through the media does not ordinarily constitute an impermissibly suggestive identification procedure because it is not engineered by prosecution or law enforcement agencies.
• The in-person confrontation which took place between the [defendant] and the victim occurred when . . . [the victim] saw the [defendant] as the police were in the process of arresting him on the A.W.O.L. charge. The police in no way instigated this confrontation and it was merely happenstance that it occurred. These circumstances are in no way a basis for excluding the victim's in-court identification.
• Nothing unduly suggestive occurred when [the witness] barged into the detectives' office and spontaneously identified [the defendant]. The police did not request [the witness’s] presence; they did not know she was a witness when she entered the room. She did not know that a suspect would be in the room or that one had been arrested.
• [The defendant] points out that during the investigation [the witness] came to the police department and asked to hear the voice of [the defendant] on a tape recorder. The police complied with her wish. She verified that the voice was the same voice she had heard on the night of the victim's disappearance. [The defendant] contends that this constituted an impermissibly suggestive identification of [the defendant’s] voice in that [the witness] knew she was listening to the voice of [the defendant] at the time she made the identification. It is true that this Court has held that it is improperly suggestive for police to inform a lineup observer that the suspect is in the lineup. However, this was not a lineup or voice identification instituted by the police officers. [The witness] suspected that the person she had seen and heard was the husband of the victim, and she came to police headquarters knowing that they had tape recordings of [the defendant’s] voice and she wanted to assure herself that she was correct in believing the person she had heard was in fact [the defendant]. This certainly does not fall within the framework of a police-engineered lineup or voice identification.