State v. Moore
Police officers may not be required to reconfigure the positions of photos in a photo array each time that they present the identical photo array to a different witness. The State of Connecticut charged the defendant, Darnell Moore, with committing the 2010 murder of Namdi Smart. The defendant moved to suppress evidence of witness identifications. The defendant argued that the photo array was unnecessarily suggestive, because the defendant's picture always appeared at position number two in each photo array, and law enforcement did not ensure that witnesses lacked any contact with one another, prior to identifying the defendant's photo. An out-of-court eyewitness identification can be excluded, if the procedure used to elicit the identification was so suggestive and otherwise unreliable as to give rise to a very substantial likelihood or irreparable misidentification, pursuant to State v. Marquez, a 2009 decision of the Connecticut Supreme Court. Courts may consider whether the suspect's photo was displayed prominently, and whether a second witness remained present during the identification process. Here, the court was not persuaded that the use of the identical photo array was unnecessarily suggestive. Officers attempted to separate the witnesses, and there was no evidence that witnesses had contact with each other concerning the identifications. Identifications were not made in the presence of other witnesses. Each witness was informed about the procedure in writing. Each witness placed his or her initials next to each of the instructions. "The defendant's photograph was not prominently displayed or highlighted," wrote the court, "and proper instructions were given to the witnesses who were each interviewed individually." The court denied the defendant's motion to suppress.