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Tuesday, June 12, 2012

Ind. Decisions - Judge Posner on photo arrays

Michelle Olsen of @AppellateDaily tweets:

7th Cir.-More pics from Judge Posner; police headshots (p. 17; wonder how men feel about being in the F.3d forever).
Here is the opinion in USA v. John Ford. Some quotes from the opinion:
We move to the second and more substantial issue—a challenge to the photo array shown the bank’s manager, whom the robber had confronted after forcing an entry into the bank shortly after the bank had closed for the day. When police arrived after the robbery the manager had told them that although the robber had worn a dust mask that covered his nose and mouth, the manager could tell that the robber was a white man with “a very pale complexion” and “light colored eyebrows and freckles around his eyes.” * * *

In March 2009, 16 months after the robbery, a police officer presented the bank manager with an array of six head shots that included one of Ford; we attach a photo of the array at the end of this opinion. * * *

The photo array was suggestive. First, instead of showing the six photographs to the bank manager one by one, the police officer placed them on a table in front of him all at once, side by side in two rows, as in the photo at the end of this opinion (except that that’s a photo of all six photos, and what the manager was shown was the separate photos—but as he was shown them all at once, what he saw was equivalent to our composite photo). * * *

The array would have been less suggestive had the manager been shown the photos one by one (a “sequential” array). * * *

The accuracy of a sequential array can be improved by making it appear to the witness that there are more persons in the array than he’s been shown. The officer presenting the array could pause after showing the witness the first five photos and ask whether he’d spotted the robber yet. For if after having looked at the first five photos in an array of six (as in this case) the witness knew he was looking at the last one in the array, he might infer, if he hadn’t identified any of the first five, that the sixth photo was of the robber, or at least of the man who the police thought was the robber. But we suspect that even with the suggested adjustment the risk of misidentification is greater when the witness is looking from photo to photo, because they’re side by side, in an attempt to pick out the one that most resembles his recollection of the robber. * * *

Still another respect in which the array was suggestive was that the other five men don’t look like the robber, because, although all are adult Caucasian males of ap- proximately the same age, none is pale or has freckles. The only description that the manager had given the police was that the robber was very fair and had freckles, and only Ford’s photo matches that description. * * *

As awareness of the frequency of mistakes in eye- witness identification has grown [cites omitted] * * *

But we think the error was harmless.

Posted by Marcia Oddi on June 12, 2012 04:19 PM
Posted to Ind. (7th Cir.) Decisions