It is common in criminal cases for the police to show to victims of crimes a series or array of photographs, one of which is the suspect, to see if the victim can pick out who she believes was the perpetrator. How the Maryland courts go about analyzing whether such identification from a photo array, and any later identification in Court, are properly admissible in evidence was analyzed in a recent unreported opinion from Maryland’s intermediate appellate Court in a case called Abou Goloko v. State of Maryland.
The Court of Special Appeals’ opinion indicates that a victim came home to her apartment building, one afternoon when she was grabbed by two young men and pushed into the vestibule. After asking her for money and searching her purse, they began to sexually assault her. The victim’s screams brought out neighbors in the building, and the perpetrators fled.
About a month later, the victim came to the police station and was shown an array of six photographs, one of which she identified as being one of the men who assaulted her. At trial, the Judge rejected defense claims to the admissibility of the array, and a jury convicted the defendant of sex offenses, attempted burglary and home invasion. The appellate Court noted that defense appellate counsel’s “well-reasoned and well- articulated argument turns out to be totally irrelevant.”
The Court explained that in analyzing a challenge to an out of court identification of a suspect, the trial judge must follow a two-step process. First, the judge must determine whether the identification procedure used by the police was “impermissibly suggestive.” If not, the out of court and any in-court identification of the defendant are admissible in evidence. If the Court finds the identification process was too suggestive, the judge then must determine if whether under all the circumstances the identification was reliable.
Here, the appellate Court upheld the trial judge’s discretionary finding that the police procedure for this photographic array was not improperly suggestive. The mere fact that the photograph of the defendant showed him wearing a jacket, while subjects in the other photos were wearing T-shirts, was not unduly suggestive. The trial judge therefore never had to consider if overall the identification was reliable, and the conviction was upheld.
Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.