Judicial District of Hartford

      Criminal; Whether Out-of-Court Identifications of Defendant Were Reliable under Totality of the Circumstances; Whether Identifications Resulting from Suggestive Procedures Should be Deemed Per Se Unreliable; Whether Supreme Court Should Issue Guidelines Governing Out-of-Court Identification Procedures.  The defendant was convicted of felony murder and robbery charges in connection with a holdup that left one man dead.  The defendant appeals, claiming that the trial court improperly denied his motion to suppress pre-trial identifications made by two of the robbery victims.  In deciding whether the out-of-court identifications of the defendant were admissible, the trial court applied the standards adopted by the United States Supreme Court in Manson v. Brathwaite, 432 U.S. 98 (1977), and Neil v. Biggers, 409 U.S. 188 (1972).  Under those standards, a court must determine whether the procedure that produced the identification was unnecessarily suggestive and, if so, whether the identification was nevertheless reliable based on an examination of the totality of the circumstances.  The factors to be considered in gauging the reliability of an identification include the witness' opportunity to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.  Here, the trial court found that the photographic identification procedures used by the police were unnecessarily suggestive in that (1) the witnesses were shown the photographs simultaneously, rather than sequentially; (2) the lead investigator in the case administered the identification procedures; and (3) the lead investigator demonstrated bias by telling one of the witnesses that he had chosen the "right person" and that the other witness had also selected the defendant.  The court nonetheless denied the motion to suppress on finding that the identifications were reliable under the totality of the circumstances.  On appeal, the defendant contends that the court wrongly applied the Manson/Biggers factors in determining that the identifications were reliable in spite of the corrupting effect of the suggestive identification procedures.  He claims, for example, that one of the witnesses testified that the lighting was poor in the room where the robbery took place and that he was not really looking at the faces of the robbers.  Alternately, the defendant urges that, in light of studies casting doubt on the reliability of eyewitness identifications, identifications resulting from unnecessarily suggestive procedures should be deemed per se unreliable.  Finally, the defendant asks that the Supreme Court exercise its supervisory authority to direct that (1) police use "double-blind" identification procedures, in which the officer conducting the procedure has not been involved in the investigation and does not know who the target is; (2) police use sequential photographic identification procedures, which involve showing the witness the photographs one at a time rather than simultaneously; and (3) police be prohibited from advising witnesses that they picked the "right" suspect.