Malik Small v. State of Maryland, No. 19, September Term, 2018. Opinion by Greene, J.
CRIMINAL LAW – CRIMINAL PROCEDURE – EYEWITNESS IDENTIFICATION –
PHOTO ARRAY
The Court of Appeals reviewed the long-standing Manson-Jones framework, which is the
proper test for assessing the admissibility of evidence of an extrajudicial identification
procedure that is challenged on due process grounds. Applying the Manson-Jones test to the
present case, the Court determined that the second of two photo array identification procedures,
through which the victim identified Petitioner in a photo as the perpetrator of the crime, was
suggestive. It was suggestive because Petitioner’s photo was emphasized during the first photo
array, and then Petitioner was the only person from the first array who was repeated in the
second array. Nonetheless, the victim’s identification had sufficient indicia of reliability, under
the totality of the circumstances, to overcome the taint of that suggestion. Therefore, whether
or not the identification was reliable was ultimately a question for the jury. Petitioner’s motion
to suppress evidence of the pretrial identification on due process grounds was properly denied.
The Court of Special Appeals’ judgment, which affirmed the Circuit Court for Baltimore City’s
ruling on Petitioner’s motion to suppress, is affirmed.
Circuit Court for Baltimore City IN THE COURT OF APPEALS
Case No. 115191006
Argued: October 10, 2018 OF MARYLAND
No. 19
September Term, 2018
______________________________________
MALIK SMALL
v.
STATE OF MARYLAND
Barbera, C.J.
Greene,
*Adkins,
McDonald,
Watts,
Hotten,
Getty,
JJ.
______________________________________
Opinion by Greene, J.
Barbera, C.J, McDonald, J. and Adkins, J.,
concur.
______________________________________
Filed: June 24, 2019
*Adkins, J., now retired, participated in the
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
hearing and conference of this case while an
2019-06-24 11:02-04:00 active member of this Court; after being recalled
pursuant to the MD. Constitution, Article IV,
Section 3A, she also participated in the decision
Suzanne C. Johnson, Clerk
and adoption of this opinion.
Ordinarily, the reliability of relevant evidence is a matter committed to the province
of the jury. There may, however, be a reliability question concerning evidence of
eyewitness identifications challenged on due process grounds. In such cases, the court will
review an identification’s reliability in the first instance if law enforcement procured the
identification utilizing suggestive procedures. The matter before this Court concerns such
a due process reliability inquiry.
Petitioner Malik Small (“Petitioner” or “Mr. Small”) alleges that evidence of an out-
of-court identification procedure, through which the victim of an assault identified
Petitioner as the perpetrator of the crime, should have been suppressed because it violated
his right to due process of law. We begin by reviewing and reaffirming the well-settled
test for assessing the admissibility of evidence of extrajudicial eyewitness identifications.
Applying that test to the facts of this case, we conclude that the challenged identification
contained sufficient indicia of reliability to overcome the suggestive nature of the pretrial
identification procedures. Therefore, we shall affirm the judgment of the Court of Special
Appeals.
FACTUAL & PROCEDURAL BACKGROUND
On June 17, 2015, a man tried to rob, and ultimately shot, Ellis Lee (“Mr. Lee”) at
a bus stop in Baltimore City. Following the incident, the Baltimore City Police Department
administered two photo arrays to Mr. Lee, which resulted in his identification of Petitioner
Malik Small as the assailant. The State charged Mr. Small with a 10-count indictment in
the Circuit Court for Baltimore City. Before the matter proceeded to trial, Mr. Small moved
to suppress evidence of the two extrajudicial photographic array identification procedures.
On March 18, 2016, the Circuit Court for Baltimore City held a suppression hearing to
assess the admissibility of evidence of the identification procedures.
The Suppression Hearing
At the outset, the suppression court ruled that evidence of the first photo array could
not be admitted by the State against Mr. Small at his trial.1 The State and Mr. Small’s
counsel were, however, permitted to produce evidence of the first array during the
suppression hearing in order to provide context for the second photo array. The hearing
proceeded on the question of whether the second photo array would be admissible in
evidence at Mr. Small’s trial.
During the hearing, Mr. Lee recalled the incident that occurred on June 17, 2015.
He testified that, at 2:00 a.m., he was sitting at a bus stop on Northern Parkway in Baltimore
City looking at his cell phone when a man approached him. The man stood approximately
one foot away from Mr. Lee, pointing a gun at Mr. Lee and covering the bottom portion of
his face with a white T-shirt. The man said, “Let me get your money.” Mr. Lee emptied
his pockets and told the man that he did not have any money. The man said, “Run, bitch,”
so Mr. Lee ran away. As Mr. Lee fled, the man fired the gun, and one bullet struck the
back of Mr. Lee’s right leg. Mr. Lee made it to Gittings Avenue where he was met by an
ambulance that transported him to the emergency room at Johns Hopkins Hospital.
While describing the incident during the suppression hearing, Mr. Lee testified that
1
The court suppressed evidence of the first photo array because Detective Stanley Ottey,
the detective who administered the first photo array, was not available to testify at the
suppression hearing. The parties do not challenge the suppression court’s ruling,
suppressing evidence of the first photo array.
2
he noticed the gun before he saw the face of the man holding it. The assailant, Mr. Lee
said, was covering the bottom portion of his face up to his nose with a white T-shirt, but
his neck was exposed. Mr. Lee recalled that it was dark outside, but there was a very dark
orange street light shining on the man, which made it “kind of easier to see him.” His
interaction with the assailant, Mr. Lee estimated, lasted “two minutes at most.”
At the hospital, Mr. Lee was interviewed by three detectives, including Detective
Matthew DiSimone, the lead investigator on the case. Detective DiSimone testified that
Mr. Lee described the assailant as “a black male, light skin, believed he had seen him
before, a light [T]-shirt, tattoo on the right side of his neck, 5’8”, regular sized, a short
haircut. He held the bottom of his shirt up over his face, blue jeans, block letter tattoo on
neck, had letter ‘M’ in it.” Mr. Lee believed he had seen the assailant twice before the
incident at Staples, where Mr. Lee worked, because he recognized the assailant’s voice and
tattoo. Mr. Lee did not describe their interactions at Staples, and he did not know the
assailant by name.
After Mr. Lee was released from the hospital, Detective DiSimone and Mr. Lee
revisited the scene of the crime. Then, they drove to the Northern Police District.
According to Detective DiSimone, Mr. Lee gave another description of the assailant at the
police station. Mr. Lee described the assailant as “a light brown, black male, 5’8”, regular
sized, with a scraggly beard, a tattoo on his neck.” He also described the tattoo “in detail,”
as being “[b]lock styled cursive script, bold, not dull, containing multiple letters and at
least one of them was an ‘M.’”
Detective DiSimone used a police database to compile mugshots to be included in
3
a “photo array identification procedure.”2 To compile the array, he searched for men with
light brown complexions and beards, who were between 5’6” and 5’8”. He did not look
for men with neck tattoos. Ultimately, the first array included six pictures – Petitioner’s
photo and five filler photos.3 Detective DiSimone included one front-facing photo of each
person in the first array in order to keep the tattoo out of view. “[He] felt that the tattoo
was described in so much detail that it would be leading if [he] put the tattoo in the picture.”
Despite Detective DiSimone’s intentions, the “M” tattooed on Petitioner’s neck was plainly
visible in Petitioner’s photograph.4 Petitioner was the only person depicted in the first
array who had a visible neck tattoo.
After compiling the array, Detective DiSimone printed the six photographs and
array instructions, which were to be read to Mr. Lee. He gave the photos and instructions
to Detective Stanley Ottey, the administrator for the first photo array. A blind procedure5
was used to administer the first photo array. Detective Ottey was not involved in the
2
A photo array identification procedure occurs when “an array of photographs, including
a photograph of a suspect and additional photographs of other persons not suspected of the
offense, is displayed to an eyewitness in hard copy form or by computer for the purpose of
determining whether the eyewitness identifies the suspect as the perpetrator.” Md. Code
Ann., Public Safety § 3-506.1(a)(8) (2003, 2018 Repl. Vol.) (“PS”).
3
A filler, in the context of a photo array, is “a photograph of a person who is not suspected
of an offense and is included in an identification procedure.” PS § 3-506.1(a)(6).
4
This fact is apparent from viewing the first array, the photographs for which were
collectively admitted into evidence during the suppression hearing.
5
A blind procedure “means the administrator [i.e. the person conducting the procedure]
does not know the identity of the suspect.” PS § 3-506.1(a)(3).
4
investigation, and neither Detective Ottey nor Mr. Lee was advised of the identity of the
suspect. Detective Ottey administered the first photo array at 8:37 a.m. During the
procedure, Detective Ottey made notes about Mr. Lee’s statements. In reference to
Petitioner’s photo, Detective Ottey wrote that Mr. Lee said he “looks like [the assailant],
doesn’t think it’s him.”
Mr. Lee testified that during the first array, “[he] picked out one who kind of looked
like [the assailant], but [he] wasn’t too sure.” He remembered seeing “[t]he tattoo on the
neck, [he] just related the two . . . it look[ed] pretty much like the same tat[too] [he] saw
[during the incident].” Yet, Mr. Lee explained that the assailant was covering his face
during the incident, so Mr. Lee said, “I’m not going to give you 100 percent of somebody’s
life in my control . . . . I gave him in terms of 80 percent sure.” The parties stipulated to
the fact that Mr. Lee could not make a positive identification during the first array.
After the first array, Mr. Lee gave another statement to Detective DiSimone. Then,
Detective DiSimone compiled the second photo array. Detective DiSimone believed that
“if a second array was shown containing side profile pictures, which gave a view of the
tattoo, it might assist in . . . identification.” To compile the second array, Detective
DiSimone searched for photos of men with light brown skin and a beard. This time, he
also looked for photos of men with a tattoo on their neck. He explained that the database
had a small selection of individuals with neck tattoos, so he did not specifically look for
tattoos with letters. Ultimately, the second array included twelve pictures – two photos6
6
One photo showed the person facing front, and the other photo showed his right profile.
5
each of six individuals. Petitioner was included with five new fillers, making Petitioner
the only individual from the first array who was repeated in the second array.7 All of the
fillers in the second array had a tattoo on their neck.8 In addition to Petitioner, at least one
filler had a tattoo that contained letters. None of the fillers had a tattoo with the letter “M”
in it.
The second array was administered by Sergeant Detective Ethan Newberg using a
blind procedure. Sergeant Newberg was not involved in the investigation, and he did not
know who the suspect was. Likewise, Mr. Lee was not advised whom law enforcement
suspected was the assailant. Sergeant Newberg conducted the procedure at approximately
11:45 a.m. in an office where only he and Mr. Lee were present. Sergeant Newberg
explained that he read Mr. Lee a set of array instructions, then he showed Mr. Lee all twelve
photographs. During the procedure, Sergeant Newberg made notes of Mr. Lee’s
statements. In reference to Petitioner’s photo, Sergeant Newberg testified that, according
to his notes, Mr. Lee said, “That’s him. That’s who shot me.”
Mr. Lee testified that before the second array, he was told that he was being shown
more photos “to make sure this was the same person.” Additionally, he only remembered
7
A different photo of Petitioner was used in the second array than the first array. In both
photos, Petitioner is depicted with practically the same facial expression, facial hair, neck
tattoo, and skin tone. In the first array, Petitioner was depicted wearing a white T-shirt and
looking directly at the camera. In the second array, Petitioner was depicted wearing a black
T-shirt overtop of a gray T-shirt and looking slightly downward. Petitioner’s hair also
appears slightly longer in the second array.
8
This fact is apparent from viewing the photographs in the second array, which were
collectively admitted into evidence during the suppression hearing.
6
seeing Petitioner’s photograph during the second array.9 Mr. Lee went on to explain that
although the assailant was covering his face, “the characters [Mr. Lee] saw on his neck and
what [Mr. Lee] saw on the picture . . . matched.”
On Petitioner’s photo, Mr. Lee wrote, “This is the same tattoo and face I remember
robbing me and the man I remember shooting me. I also remember him from coming into
my job [at Staples] on two different occasions.” Mr. Lee said that when he identified
Petitioner as the assailant, he was 100% sure of his identification. Mr. Lee was confident
in his identification because when he saw the tattoo, “[i]t was almost like a rush of memory
from both Staples and what [he] remembered seeing that night.”
Mr. Lee testified that two weeks later, he saw a man on a dirt bike whom he believed
was the assailant. Mr. Lee had already been told that Mr. Small was arrested, but he called
the police to report the man he saw. In response, Mr. Lee recalled being told, “That can’t
be true. We already have the guy . . . he’s already confessed to it. You’re fine.”10
9
We interpret Mr. Lee’s testimony to mean that he did not remember seeing the filler
photos, not that Mr. Lee was only shown Mr. Small’s photo during the second array.
When summarizing the facts of this case, neither Mr. Small nor the State posited that Mr.
Lee was only shown Mr. Small’s photos during the second array. Rather, Mr. Small stated
that Mr. Lee “did not recall seeing any other photos in the second photo array, save for the
photos of Mr. Small. However, the second array contained ten other photos.” (emphasis
added). Moreover, we must view the facts in the light most favorable to the State.
McFarlin v. State, 409 Md. 391, 403, 975 A.2d 862, 869 (2009). Therefore, we proceed
with the understanding that Mr. Lee was, in fact, shown all twelve photos of all six
individuals during the second photo array, but at the time of the suppression hearing he did
not remember seeing the filler photos.
10
Mr. Small did not confess to the crime. Detective DiSimone and Sergeant Newberg were
not aware of anyone from the Baltimore City Police Department telling Mr. Lee that Mr.
Small confessed to the crime.
7
Sometime after June 17, 2015, Mr. Lee spoke with an Assistant State’s Attorney
about his identification. During that conversation, Mr. Lee indicated that he was 70% sure
about his identification. Mr. Lee could not articulate what caused his confidence level to
decrease.
At the conclusion of the suppression hearing, the presiding judge ruled that the
second photo array was admissible. To reach this conclusion, the judge first considered
whether the array was suggestive. She did not find it problematic that the individuals in
the second photo array did not share the same tattoo or all have letters in their tattoos. The
judge explained that it is not reasonable to expect the police to find similar-looking people
who also have similar tattoos. The judge did, however, take issue with the timing of the
first and second arrays. She explained:
My problem is with the timing, with the fact that they showed
[Mr. Lee] a picture of [Mr. Small] at 8:30 in the morning . . .
[Mr. Lee] says, “I’m not sure that’s the guy,” and then they
show him another photo array . . . approximately three hours
later, and the only person that’s repeated in the second photo
array is [Mr. Small]. That’s troubling.
Nevertheless, the judge concluded that the second photo array was admissible
because she found it reliable by clear and convincing evidence. She reasoned that “[Mr.
Lee] knew who [Mr. Small] was. [Mr. Lee] had already seen him twice before. [Mr. Lee]
recognized his voice. It had nothing to do with the photograph.” Therefore, the
suppression court denied Mr. Small’s motion to suppress the second photo array.
The Trial and Verdict
The matter proceeded to trial before a jury in the Circuit Court for Baltimore City.
8
Ultimately, the jury found Mr. Small guilty of attempted robbery, second-degree assault,
and reckless endangerment. Mr. Small was sentenced to eight years of incarceration. Mr.
Small noted an appeal to the Court of Special Appeals.
The Court of Special Appeals
On appeal, the Court of Special Appeals reviewed, inter alia, the suppression
hearing court’s ruling, denying Mr. Small’s motion to suppress the second photo array.
Small v. State, 235 Md. App. 648, 668-91, 180 A.3d 163, 174-89 (2018). The intermediate
appellate court reviewed Maryland and United States Supreme Court caselaw regarding
due process challenges to extrajudicial identifications. Id. As to the merits of Petitioner’s
due process claim, the court first concluded that the second array was suggestive. Id. at
680, 180 A.3d at 176-84. Yet, the court determined that the identification had sufficient
indicia of reliability to overcome the procedure’s suggestiveness. Id. at 683-91, 180 A.3d
at 184-89. Therefore, the Court of Special Appeals affirmed the suppression hearing
court’s denial of Mr. Small’s motion to suppress evidence of the second photo array. Id.
at 691, 180 A.3d at 189.
Mr. Small petitioned this Court for a writ of certiorari. We granted the petition on
June 1, 2018. Small v. State, 459 Md. 399, 187 A.3d 35 (2018). The issue now before
this Court is whether the suppression court properly denied Petitioner’s motion to
suppress.11
11
The question presented, as framed by Petitioner, is: Did the Court of Special Appeals err
in holding that the pretrial identification of Petitioner, which the Court determined to be
the product of an impermissibly suggestive procedure, was reliable?
9
PARTIES’ ARGUMENTS
Petitioner contends that the suppression hearing court erred in denying his motion
to suppress evidence of the second photo array because the identification procedure
violated his right to due process of law. Petitioner challenges the Court of Special Appeals’
reliability analysis. Petitioner posits that the court erred in concluding that the
identification was reliable and admissible.
Respondent, the State of Maryland, argues that the suppression hearing court
properly admitted, and the Court of Special Appeals properly affirmed admission of,
evidence of Mr. Lee’s extrajudicial identification. According to Respondent, both courts
properly analyzed the identification’s reliability and therefore properly denied Petitioner’s
motion to suppress.
Also before this Court is the brief submitted by amici curiae.12 Amici challenge the
framework that Maryland courts apply for assessing due process challenges to pretrial
identifications, which was articulated by the United States Supreme Court in Manson v.
Brathwaite13 and adopted by this Court in Jones v. State.14 Amici contend that this
framework does not adequately assess an identification’s reliability, and that we should
revise this framework as, according to amici, many of our sister states have done.
12
Before this Court as amici curiae are the Innocence Project, Inc. and the University of
Baltimore Innocence Project Clinic.
13
432 U.S. 98, 97 S. Ct. 2243, 53 L.Ed.2d 140 (1977).
14
310 Md. 569, 530 A.2d 743 (1987), cert. granted, judgment vacated on other grounds,
486 U.S. 1050-51, 108 S. Ct. 2815, 100 L.Ed.2d 916 (1988), conviction aff’d, sentence
vacated and remanded, 314 Md. 111, 549 A.2d 17 (1988).
10
DUE PROCESS CHALLENGES TO EXTRAJUDICIAL IDENTIFICATION
PROCEDURES
The right to due process of law is guaranteed by the Fifth Amendment and
Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland
Declaration of Rights. Webster v. State, 299 Md. 581, 599, 474 A.2d 1305, 1314 (1984).
“Due process protects the accused against the introduction of evidence of, or tainted by,
unreliable pretrial identifications obtained through unnecessarily suggestive procedures.”
Jones, 310 Md. at 577, 530 A.2d at 747 (quoting Moore v. Illinois, 434 U.S. 220, 227, 98
S. Ct. 458, 464, 54 L.Ed.2d 424 (1977)). When an accused challenges the admissibility of
an extrajudicial identification procedure15 on due process grounds, Maryland courts assess
its admissibility using a two-step inquiry. Id. The inquiry, in essence, seeks to determine
whether the challenged identification procedure was so suggestive that the identification
was unreliable. “[R]eliability is the linchpin[.]” Manson, 432 U.S. at 114, 97 S. Ct. at
2252, 53 L.Ed.2d 140.
In step one of the due process inquiry, the suppression court must evaluate whether
the identification procedure was suggestive. Jones, 310 Md. at 577, 530 A.2d at 747. The
defendant bears the burden of making a prima facie showing of suggestiveness. See Smiley
v. State, 442 Md. 168, 180, 111 A.3d 43, 50 (2015).
If the court determines that the extrajudicial identification procedure was not
15
An extrajudicial identification procedure is one that is made outside of the courtroom.
Webster v. State, 299 Md. 581, 589-90, 474 A.2d 1305, 1309 (1984). By contrast, a judicial
or in-court identification occurs when the witness identifies the accused inside of the
courtroom. Id.
11
suggestive, then the inquiry ends and evidence of the procedure is admissible at trial.
Jones, 310 Md. at 577, 530 A.2d at 747. If the court determines that the identification
procedure was tainted by suggestiveness, then evidence of the identification is not per se
excluded. Id.; Perry v. New Hampshire, 565 U.S. 228, 232, 132 S. Ct. 716, 720, 181
L.Ed.2d 694 (2012) (“An identification infected by improper police influence, our case law
holds, is not automatically excluded.”). Rather, the suppression court must proceed to the
second stage of the due process inquiry. Jones, 310 Md. at 577, 530 A.2d at 747.
In step two of the due process inquiry, the suppression court must weigh whether,
under the totality of the circumstances, the identification was reliable. Id. At this stage,
the burden rests with the State to show that the identification was reliable by clear and
convincing evidence. Smiley, 442 Md. at 180, 111 A.3d at 50. The United States Supreme
Court and this Court have previously identified five factors that may be used to assess
reliability. The factors include the witness’s opportunity to view the criminal at the time
of the crime, the witness’s degree of attention, the accuracy of the witness’s description of
the criminal, the witness’s level of certainty in his or her identification, and the length of
time between the crime and the identification. Jones, 310 Md. at 577-78, 530 A.2d at 747
(citation omitted); Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 382, 34 L.Ed.2d
401 (1972). Ultimately, the court must determine whether the identification is admissible
by “weigh[ing] the reliability of the identification against the ‘corrupting effect’ of the
suggestiveness.” Jones, 310 Md. at 578, 530 A.2d at 747 (citation omitted).
Amici urge us to abandon this legal framework and endorse a revised approach that
is consistent with the New Jersey Supreme Court’s decision in State v. Henderson, 27 A.3d
12
872 (N.J. 2011). In Henderson, the New Jersey Supreme Court undertook an extensive
review of a court-appointed special master’s recommendations about the factors that many
experts believe impact a witness’s ability to identify the perpetrator of a crime. Id. Based
on these recommendations, the court delineated a list of factors that trial courts may
consider when assessing suggestiveness and reliability.16 Id. at 920-21. In addition, the
16
The court explained that system variables should be explored when analyzing
suggestiveness. State v. Henderson, 27 A.3d 872, 920 (N.J. 2011). System variables are
factors “which are within the control of the criminal justice system.” Id. at 895. For
instance, the person administering the array should not know the suspect’s identity. Id. at
896-97, 920. The witness should be instructed that the suspect may or may not be in the
array. Id. at 897, 920. The array should include at least five fillers who resemble the
suspect. Id. at 898, 920. The witness should not be given feedback, or shown a suspect or
filler multiple times. Id. at 899-00, 920. The witness’s level of confidence should be
recorded promptly, and an inquiry should be made into whether the witness spoke with
anyone about the identification. Id. at 920-21. The witness may have initially made no
identification or a different identification during an identification procedure. Id. at 921.
Id. Lastly, the court cautioned that showups are inherently suggestive. Id. at 903.
The court explained that, when analyzing reliability, courts should consider estimator
variables. Id. at 921. Estimator variables are factors “over which the legal system has no
control.” Id. at 895. For instance, the witness’s level of stress may impact reliability. Id.
at 904, 921. In addition, facts about the encounter may affect reliability, such as the
presence of a weapon, lighting, duration, and distance between the witness and the
perpetrator. Id. at 904-06, 921. Characteristics of the witness and perpetrator may be
pertinent, such as the witness’s level of intoxication and if the perpetrator was wearing a
mask. Id. at 906-07, 921. The court said that the amount of time between the crime and
the identification may impact reliability. Id. at 907, 922. It explained that cross-racial
identifications may be less reliable. Id. at 907. Finally, the court noted that many estimator
variables overlap with the five Biggers reliability factors, and it included the five factors in
its non-exhaustive list of estimator variables that may be used to evaluate reliability. Id. at
921-22.
13
court revised the Manson framework.17
The case at bar is not this Court’s first opportunity to review Maryland’s Manson-
Jones framework in light of the New Jersey Supreme Court’s decision in Henderson. See
Smiley, 442 Md. at 184, 111 A.3d at 52. In Smiley, we had the opportunity to adopt New
Jersey’s framework for assessing the admissibility of eyewitness identifications, but we
did not do so. Id. “We decline[d] to do so, because this Court, as well as the Court of
Special Appeals, have consistently reaffirmed application of the procedure in [] Jones for
examining challenges to the admissibility of eyewitness identifications.” Id. Consistent
with our decision in Smiley, we decline the invitation to abandon the Manson-Jones
17
Under the revised Henderson approach, first the defendant bears the burden of setting
forth some evidence, tied to a system variable, that indicates suggestiveness. 27 A.3d 827,
920 (2011). Second, the State must show that the eyewitness identification is reliable,
accounting for system and estimator variables. Id. Consistent with Manson, the ultimate
burden “remains on the defendant to prove a very substantial likelihood of irreparable
misidentification.” Id. (citing Manson, 432 U.S. at 116, 97 S. Ct. at 2254, 53 L.Ed.2d at
155) (citation omitted). The court should suppress the identification if the totality of the
circumstances indicate “a very substantial likelihood of irreparable misidentification[.]”
Id.
It appears that, under Henderson’s revised framework, reliability factors become relevant
earlier in the court’s inquiry. See id. at 919 (explaining that “the revised framework
should allow all relevant system and estimator variables to be explored and weighed at
pretrial hearings when there is some actual evidence of suggestiveness[.]”). Under
Manson’s framework, the court must conclude that the defendant made a prima facie
showing of suggestiveness before reliability factors become relevant. Smiley v. State, 442
Md. 168, 180, 111 A.3d 43, 50 (2015); see also Webster v. State, 299 Md. 581, 620, 474
A.2d 1305, 1325 (1984) (concluding that because the “lineup was not one whit suggestive”
reliability was not at issue). Under Henderson, as long as the defendant produces some
evidence of suggestiveness, then the court explores all relevant indicators of suggestiveness
and reliability in order to determine whether there is a very substantial likelihood of
irreparable misidentification. 27 A.3d at 919.
14
framework, which Maryland courts use, and have used for decades, to assess due process
challenges to extrajudicial identification procedures.18 The reliability inquiry remains to
be whether, under the totality of the circumstances, the challenged identification was
reliable, despite the suggestiveness in the identification procedure.
The focus of the reliability assessment is on the totality of the circumstances, and
such an inquiry is necessarily a comprehensive one. Suppression courts can and ought to
consider the myriad of facts and circumstances presented by a particular case, which may
impact the identification’s reliability. Wood v. State, 196 Md. App. 146, 162, 7 A.3d 1115,
1124 (2010) (“A reliability appraisal . . . is extremely fact-specific. It is a multi-factored
determination that, with the help of guidelines, looks to the totality of the circumstances.”).
The court’s assessment should be guided by the circumstances before it. In addition to the
five Biggers19 reliability factors, the suppression court may find that the factors identified
18
Additionally, we disagree with amici’s contention that the Maryland General Assembly’s
2014 amendment to PS § 3-506 counsels in favor of abandoning the Manson-Jones
framework. Through § 3-506, the Legislature imposed procedural requirements upon law
enforcement agencies, applicable when conducting eyewitness identification procedures.
See generally PS §§ 3-506 and 3-506.1. See also Dep’t. Legis. Servs., Fiscal and Policy
Note Revised, House Bill 1200 (2014 Sess.) (describing the changes as being procedural
in nature). The Legislature recognized that the statute affords defendants the ability to
challenge identifications on statutory grounds, in addition to due process grounds. Id.
Amici correctly note that in the statute’s legislative history, the Legislature referenced the
New Jersey Supreme Court’s decision in Henderson. Id. So too, however, did the General
Assembly reference the United States Supreme Court’s decision in Perry v. New
Hampshire. Id. In Perry, the Supreme Court reaffirmed that Manson is the appropriate
test to apply when assessing due process challenges to eyewitness identifications. 565 U.S.
228, 232, 132 S. Ct. 716, 720, 181 L.Ed.2d 694 (2012). Thus, we find no basis for
discerning a legislative intent to dismantle our long-standing due process jurisprudence.
19
409 U.S. 188, 93 S. Ct. 375, 34 L.Ed.2d 401 (1972).
15
in Henderson, many of which overlap with the Biggers factors, and other factors are
relevant to the court’s evaluation.20 See, e.g., United States v. Greene, 704 F.3d 298, 308-
10 (4th Cir. 2013) (applying the Henderson variables in conjunction with the five Biggers
factors). Therefore, although we do not revise this Court’s jurisprudence for assessing the
admissibility of eyewitness identifications, we do recognize the breadth that is inherent in
an inquiry that hinges upon the totality of the circumstances.21 Having established the
appropriate test for analyzing Petitioner’s due process challenge, we now apply the
aforementioned principles to the facts of this case.
STANDARD OF REVIEW
Upon reviewing a suppression hearing court’s decision to grant or deny a motion to
suppress, we limit ourselves to considering the record of the suppression hearing.
McFarlin v. State, 409 Md. 391, 403, 975 A.2d 862, 868-69 (2009). We accept the
20
To the extent that expert testimony is required to explain how a particular circumstance
may have impacted the eyewitness’s identification, the admissibility of the expert’s
testimony is governed by Maryland Rule 5-702. Smiley, 442 Md. at 184, 111 A.3d at 52-
53 (2015) (“[I]f expert testimony regarding an eyewitness identification is offered, its
admissibility is governed by Maryland Rule 5-702 and Bomas v. State, 412 Md. 392, 987
A.2d 98 (2010)).
21
To be sure, we are not, as the Concurring Opinion suggests, “dismiss[ing] decades of
extensive social science research[.]” Small v. State, No. 19, 2018 Term, slip op. at 1
(Concurring Opinion, Barbera, C.J.). Rather, to the extent that there is an ambiguity in
Maryland law, we are clarifying that courts analyzing the suggestiveness and reliability of
an eyewitness identification should consider any system and estimator variables that are
relevant under the circumstances of a particular case. Which variables, if any, are relevant
under the circumstances will, of course, depend in all cases upon the evidence that the
parties place on the record during the adversarial proceeding. As such, we acknowledge
that the Manson-Jones framework is sufficiently flexible to account for the current state
of, and even future developments in, social science research.
16
suppression hearing court’s factual findings and determinations regarding the credibility of
testimony unless they are clearly erroneous. Id. at 403, 975 A.2d 869. Findings cannot be
clearly erroneous “[i]f there is any competent material evidence to support the factual
findings of the trial court[.]” YIVO Institute for Jewish Research v. Zaleski, 386 Md. 654,
663, 874 A.2d 411, 416 (2005). The evidence and inferences reasonably drawn therefrom
are viewed in the light most favorable to the prevailing party. McFarlin, 209 Md. at 403,
975 A.2d at 869. Legal conclusions are reviewed de novo. Id. We independently apply
the law to the facts to determine whether a defendant’s constitutional rights have been
violated. Id.
DISCUSSION
A. Suggestiveness
First, we review whether Petitioner made a prima facie showing that the second
photo array procedure was suggestive. Before this Court, the parties agree that the
procedure was suggestive. Nonetheless, we conduct our own constitutional evaluation of
the array in order to provide guidance primarily to Maryland courts and law enforcement.
An identification procedure is properly deemed suggestive when the police “[i]n
effect . . . repeatedly sa[y] to the witness, ‘This is the man.’” Jones, 310 Md. at 577, 530
A.2d at 747 (citing Foster v. California, 394 U.S. 440, 443, 89 S. Ct. 1127, 22 L.Ed.2d 402
(1969)). The impropriety of suggestive police misconduct is in giving the witness a clue
about which photograph the police believe the witness should identify as the perpetrator
during the procedure. See Conyers v. State, 115 Md. App. 114, 121, 691 A.2d 802, 806
(1997), cert. denied, 346 Md. 371, 697 A.2d 111 (1997) (“The sin is to contaminate the
17
test by slipping the answer to the testee.” (emphasis omitted)).
In the context of a photographic array, the array’s composition may, for instance,
signal to the witness which photo to select. Smiley, 442 Md. at 180, 111 A.3d at 50
(citations omitted). This Court has said that the composition of a photo array “to be fair
need not be composed of clones.” Id. at 181, 111 A.3d at 50 (citations omitted). Though,
the individuals in the array should resemble each other. Webster, 299 Md. 581, 620, 474
A.2d 1305, 1325 (1984). Concerns may arise when one individual’s photograph is shown
to a witness multiple times or somehow stands out from the other photos in the array.
Simmons v. United States, 390 U.S. 377, 383-94, 88 S. Ct. 967, 971, 19 L.Ed.2d 1247
(1968) (explaining that if a witness sees “the pictures of several persons among which the
photograph of a single such individual recurs or is in some way emphasized . . . the witness
thereafter is apt to retain in his memory the image of the photograph rather than of the
person actually seen[.]”).
This Court has not had occasion to address whether depicting an individual’s tattoo
in a photo array may render the array suggestive. The Court of Special Appeals has,
however. See, e.g., Sallie v. State, 24 Md. App. 468, 332 A.2d 316 (1975). In Sallie, an
eyewitness to a robbery described one of the robbers as having a diamond-shaped mark on
his right cheek. Id. at 470, 332 A.2d at 317. Law enforcement showed the eyewitness a
photo array, in which Louis Sallie was depicted with a diamond-shaped mark on his cheek.
Id. at 471, 332 A.2d at 318. The witness identified Mr. Sallie as the perpetrator, at least
in part because of the mark. Id. On appeal, Mr. Sallie argued the photo array was
suggestive because he was the only person pictured with a diamond-shaped mark on his
18
right cheek. Id. at 472, 332 A.2d at 318. Based on the alleged suggestiveness in the photo
array, Mr. Sallie argued that the eyewitness’s in-court identification of Mr. Sallie was
tainted and, thus, inadmissible. Id.
The court reviewed the photo array for suggestiveness. Id. Although the court
determined that the mark was a unique identifying feature, the court explained:
Every individual is unique. The mouth, the lips, the teeth, the
chin, the cheeks, the nose, the eyes, the forehead, the ears, the
hair, or any combination of two or more of those and other
features, make every individual unique. They make him
different from all others. They are the basis upon which any
person is visually distinguished from other persons. The more
subtle the distinctions, the more difficult the identification, and
the greater potential for error.
Id. at 472, 332 A.2d at 318. The court reasoned that the burglar’s distinctive mark could
have exonerated Mr. Sallie, but it implicated him because the burglar and Mr. Sallie both
had the unique mark. Id. The mark, therefore, made the identification not only “inevitable”
but also more reliable. Id. Ultimately, the Court of Special Appeals concluded that, despite
the fact that Mr. Sallie was pictured with his unique identifying mark, the photo array was
not suggestive. Id. at 472, 332 A.2d at 318.
Additionally, the Court of Special Appeals has reviewed whether repeating an
individual’s picture may render a photo array suggestive. See, e.g., Morales v. State, 219
Md. App. 1, 98 A.3d 1032 (2014). In Morales, Luis Morales argued that the identification
procedure, through which he was identified as the perpetrator of a crime, was
impermissibly suggestive. Id. at 17-18, 98 A.3d at 1042. His argument rested upon the
fact that he was the only person included in both of the two identification procedures
19
administered to the witnesses. Id. The court determined that there was no reason to believe
that the witnesses noticed that Mr. Morales’s photo was repeated. Id. at 18, 98 A.3d at
1042. The police used a more recent photo of Mr. Morales in the second procedure than
the first procedure. Id. In addition, nothing that the witnesses said indicated that they
chose Mr. Morales’s photograph because they had seen it before. Id. at 18, 98 A.3d at
1043. Therefore, the court concluded that the identification procedure was not suggestive.
Id. at 19, 98 A.3d at 1043.
In the present case, Petitioner’s photo was emphasized during the first photo array.
Petitioner was the only person in the first array who had a tattoo visible on his neck.
Petitioner’s tattoo was prominently visible, and it clearly depicted a cursive-script “M.”
Our determination that Petitioner’s photo was emphasized is also evidenced by the fact that
Detective DiSimone recognized that to depict Petitioner’s conspicuous tattoo in the first
array would draw attention to his photo. Detective DiSimone testified “that the tattoo was
described in so much detail that it would be leading if [he] put the tattoo in the picture”
during the first array. Despite the tattoo’s presence, unlike in Sallie, Mr. Lee was only 80%
positive that Petitioner was the assailant after viewing the first array.
After Petitioner’s photo was emphasized in the first photo array, his photo recurred
in the second array. Unlike in Morales, Mr. Lee had reason to notice that Petitioner was
repeated in the second array. Petitioner was the only person from the first array with an
“M” tattoo, and then the only person from the first array who was repeated in the second
array. Although Petitioner was not the only person in the second array with a tattoo on his
neck, he was, again, the only person with the letter “M” tattooed on his neck. The implicit
20
suggestion inherent in repeating Petitioner’s photo with his distinct tattoo is also bolstered
by the fact that Mr. Lee recalled being told that the second array was “to make sure this
was the same person,” after Mr. Lee said that Petitioner “looked like” the assailant as
depicted in the first array.
Similar to Morales, however, law enforcement used a different photo of Petitioner
in the second array than in the first array. Additionally, nothing that Mr. Lee said indicated
that he chose Petitioner’s photograph in the second array because he saw it in the first array.
To the contrary, at the suppression hearing, Mr. Lee testified that he identified Petitioner
because he recognized Petitioner’s tattoo from the incident and Staples, not from the first
array. The fact that Mr. Lee may not have been susceptible to the suggestive procedure
does not absolve this procedure of its suggestive elements. By emphasizing Petitioner’s
photo in the first array, and then repeating Petitioner’s photo in the second array, law
enforcement implicitly suggested to Mr. Lee that he should identify Petitioner as the
assailant. See Simmons, 390 U.S. at 383, 88 S. Ct. at 971, 19 L.Ed.2d 1247. Therefore,
we conclude that the second photo array was unduly suggestive.
B. Reliability
Having concluded that the second photo array was suggestive, we move to the
second step of the due process inquiry. At this stage, the suppression court must screen the
identification’s reliability to determine “[i]f there is ‘a very substantial likelihood of
irreparable misidentification.’” Perry v. New Hampshire, 565 U.S. 228, 232, 132 S. Ct.
716, 720, 181 L.Ed.2d 694 (2012) (citation omitted). The State bears the burden of proving
reliability by clear and convincing evidence. Morales, 219 Md. App. at 14, 98 A.3d at
21
1040.
When assessing an identification’s reliability, among the factors that the suppression
court may consider are:
(i) the opportunity of the witness to view the criminal at the
time of the crime;
(ii) the witness’ degree of attention;
(iii) the accuracy of the witness’ prior description of the
criminal;
(iv) the level of certainty demonstrated by the witness at the
confrontation; and
(v) the length of time between the crime and the confrontation.
Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 382, 34 L.Ed.2d 401 (1972). The
critical inquiry is “whether under the ‘totality of the circumstances’ the identification is
reliable even though the confrontation procedure was suggestive.” Webster, 299 Md. at
601, 474 A.2d at 1315 (citing Biggers, 409 U.S. at 198, 93 S. Ct. at 382) (citations omitted).
As this articulation suggests, the identification’s reliability must be weighed in light of the
procedure’s suggestiveness.
A suppression court assessing an identification’s reliability must be mindful of the
fact that reliability is not a ground upon which the accused may argue for exclusion. The
issue of reliability is “by diametric contrast, a severe limitation on such exclusion.”
Conyers, 115 Md. App. at 120, 691 A.2d at 805. It provides the State with a means to show
that the identification has sufficient indicia of reliability to warrant admitting it into
evidence for the jury, the ultimate arbiter of reliability, to consider. See Wood v. State, 196
Md. App. 146, 162, 7 A.3d 1115, 1124 (2010) (“[R]eliability is quintessentially a jury
question and an evidentiary issue,” and “it is not a catalyst for suppression but an antidote
22
thereto.”). Thus, where a procedure’s suggestiveness creates a very substantial likelihood
that the witness misidentified the culprit, evidence of the identification must be suppressed
in order to preserve the accused’s right to due process of law. Perry, 565 U.S. at 239, 132
S. Ct. at 724-25, 181 L.Ed.2d 694. Where, however, “the indicia of reliability are strong
enough to outweigh the corrupting effect of the police-arranged suggestive circumstances,
the identification evidence ordinarily will be admitted, and the jury will ultimately
determine its worth.” Id. at 232, 132 S. Ct. at 721, 181 L.Ed.2d 694.
In Manson v. Brathwaite, the Supreme Court concluded that there was no substantial
likelihood that the eyewitness misidentified the culprit, even though the identification was
procured by showing the eyewitness one photograph. 432 U.S. 98, 116, 97 S. Ct. 2243,
2254, 53 L.Ed.2d 140 (1977). There, the eyewitness stood at the perpetrator’s door for two
to three minutes, and the door opened twice. Id. The eyewitness spoke to the perpetrator,
and it was not dark outside. Id. The eyewitness was a trained police officer, not a casual
observer. Id. He gave a description of the perpetrator within minutes of the incident, which
described the perpetrator’s race, height, build, hair color and style, high cheek bones, and
clothes. Id. The eyewitness saw the photograph two days after the confrontation, and he
was positive about his identification. Id.
In Biggers, the Supreme Court concluded that evidence of a victim’s identification,
which was made at a suggestive showup procedure, was admissible because there was no
substantial likelihood of misidentification. 409 U.S. at 201, 93 S. Ct. at 383, 34 L.Ed.2d
401. There, the victim spent thirty minutes with the assailant under artificial light and
moonlight. Id. at 200, 93 S. Ct. at 382. The victim’s description was “more than ordinarily
23
thorough,” as it included the assailant’s age, height, weight, complexion, skin texture,
build, and voice. Id. She was confident in her identification. Id. at 201, 93 S. Ct. at 383.
Additionally, the witness was the victim of the crime, not a casual observer. Id. at 200, 93
S. Ct. at 382-83. Lastly, although the identification was made seven months after the crime,
the victim only made one identification during the multiple showups she viewed. Id. at
201, 93 S. Ct. at 383.
Under the facts of this case, the suppression court and the Court of Special Appeals
concluded that there was clear and convincing evidence that Mr. Lee’s identification of
Petitioner was reliable. The suppression court reached this conclusion based on Mr. Lee
and Petitioner’s prior familiarity. The Court of Special Appeals rested its holding on Mr.
Lee’s prior familiarity with Petitioner. Exercising its independent authority, the court also
considered a multitude of other reliability factors. We review the factors that both courts
considered to establish reliability.
Prior Familiarity
First, the suppression court found that Mr. Lee had prior familiarity with Petitioner,
so the identification “had nothing to do with the photograph [Mr. Lee saw during the first
array].” The Court of Special Appeals also determined that their prior familiarity bolstered
the identification’s reliability.
Based on the record, Mr. Lee told Detective DiSimone at the hospital that he
“believed he had seen [the assailant] before.” Mr. Lee elaborated that he had seen the
assailant at Staples, where Mr. Lee was employed, on two occasions. Mr. Lee did not
provide specifics about the nature of these encounters, and he did not know the assailant
24
by name. Still, immediately after identifying Petitioner as the assailant, Mr. Lee wrote on
Petitioner’s photo that he “remember[ed] [Petitioner] from coming into my job [at Staples]
on two different occasions.” Additionally, Mr. Lee testified that he was confident in his
identification because when he saw Petitioner’s tattoo in the second array, it “was almost
like a rush of memory from both Staples and what [he] remembered seeing that night
[during the incident].”
Petitioner argues that for prior acquaintanceship to bolster the reliability of an
identification, we must require a higher degree of prior familiarity between the eyewitness
and the alleged perpetrator. Petitioner’s argument invites the imposition of an arbitrary
acquaintanceship requirement, which we are not willing to adopt. When a witness claims
to recognize an assailant from a prior encounter, the credibility of the witness’s statement
is a factual matter. In this case, the suppression court chose to credit Mr. Lee’s testimony
that he recognized the assailant, and that the recognition aided him in making an
identification. That Mr. Lee did not know the assailant by name or provide details about
the prior encounters may detract from the weight that the jury ultimately assigns Mr. Lee’s
testimony. It does not render the suppression court’s factual finding of prior familiarity
clearly erroneous. Therefore, affording due deference to the suppression court’s decision
to credit Mr. Lee’s testimony and finding of prior familiarity, we conclude that the fact that
Mr. Lee recognized the assailant from encounters preceding the incident weighs in favor
of reliability.
25
Opportunity to View
Next, we review Mr. Lee’s opportunity to view the assailant at the time of the crime.
In the case at bar, there is no challenge to the accuracy of Mr. Lee’s description of the
assailant or the opportunity or ability for Mr. Lee to formulate the description he gave to
police. The undisputed facts indicate that Mr. Lee’s encounter with the assailant lasted
approximately two minutes. During that time, Mr. Lee and the assailant were close
together, only separated by about one foot, and Mr. Lee spoke with the assailant. As
Petitioner points out, it was dark outside during the incident at 2:00 a.m., and the only
lighting was a “dark orange” colored street light. Yet, Mr. Lee testified that the street light
was shining directly on the assailant, which made it easier for Mr. Lee to see him. In
addition, Petitioner notes that the assailant was covering the bottom portion of his face with
a white T-shirt. Despite the partial obstruction, Mr. Lee was still able to see the uncovered
portions of the assailant’s face, hair, and neck, and describe the assailant’s skin tone, beard,
hair, and neck tattoo. Viewing these facts in the light most favorable to the State, we
conclude, as did the Court of Special Appeals, that Mr. Lee’s opportunity to view the
assailant weighs in favor of reliability.
Degree of Attention
In addition, we review Mr. Lee’s degree of attention during the encounter. Mr.
Lee stood approximately one foot away from the assailant. He spoke with the assailant
when he explained that he did not have any money. Mr. Lee was the victim of the crime,
not a “casual or passing observer.” See Webster, 299 Md. at 621 (determining that because
the witnesses were subjected to threats during the robbery, their degree of attention was
26
“intense.”). Additionally, he was sufficiently attentive to notice and recall the assailant’s
skin tone, hair, facial hair, and neck tattoo.
Petitioner contends that Mr. Lee’s degree of attention cannot weigh in favor of
reliability because the assailant had a gun during the encounter. See Henderson, 27 A.3d
at 904-05 (explaining that the presence of a weapon during a short encounter can impact
the reliability of a witness’s ability to reliably identify and describe the perpetrator).
Indeed, weapon-focus may be a circumstance that suppression courts consider within their
reliability assessment. See, e.g., U.S. v. Greene, 704 F.3d 298, 308 (4th Cir. 2013)
(explaining that the eyewitness had a gun pointed at her, which weighed against the
reliability of her testimony). In order to conclude that weapon-focus impaired Mr. Lee’s
identification and description of the assailant, we would need facts from which we could
infer that the weapon distracted Mr. Lee. Mr. Lee testified that “[he] saw the gun first
before [he] saw the guy connected.” At best, we can discern that Mr. Lee saw the gun first,
but in addition to, the person holding it. Viewing the facts in the light most favorable to
the State, Mr. Lee’s proximity to the crime and the details that he observed about the
assailant indicate that he was attentive during the crime. We conclude that Mr. Lee’s
degree of attention weighs in favor of reliability.
Accuracy of Prior Descriptions
We also review the accuracy of Mr. Lee’s prior descriptions of the assailant. At the
hospital, Mr. Lee described the assailant as “[a] black male, light skin, believed he had seen
him before, a light [T]-shirt, tattoo on the right side of his neck, 5’8”, regular sized, a short
haircut. He held the bottom of his shirt up over his face, blue jeans, block letter tattoo on
27
neck, had a letter ‘M’ in it.” Neither party contends that the attributes in this initial
description inaccurately describe Petitioner. Notably, Mr. Lee’s description includes more
than just general qualities that could illustrate the features of an innumerable number of
people. In particular, Mr. Lee described the block letter “M” tattoo at the hospital.
Accordingly, from the outset, Mr. Lee’s description of the assailant described Petitioner
with considerable specificity.
Petitioner argues that Mr. Lee’s description of the assailant’s tattoo changed after
he viewed Petitioner’s photo in the first array, and that this demonstrates the corrupting
impact of the first photo array. Specifically, Petitioner contends that Mr. Lee first described
the assailant’s tattoo as being in cursive script after the first array, whereas Respondent
argues that this detail emerged before the first array. At the suppression hearing, Detective
DiSimone was asked what information he had about the assailant’s tattoo to rely on when
compiling the first array. Detective DiSimone consulted his notes, and he said, “Block
styled cursive script, bold, not dull, containing multiple letters and at least one of them was
an ‘M’ was the description that was provided.” There was some confusion, however, as to
when Detective DiSimone recorded the notes that he consulted. Viewing Detective
DiSimone’s testimony in the light most favorable to the State, regardless of when the
detective made those notes, when he compiled the first array he apparently knew that the
assailant’s tattoo included a cursive script “M.”
Moreover, in the detailed description of the assailant’s tattoo, Mr. Lee also said that
the assailant’s tattoo had “multiple letters” in it. This description is consistent with
Petitioner’s profile-view photo in the second array, in which the letters “L,” “Y,” and “M”
28
are seen tattooed on Petitioner’s neck. We also observe that only the letter “M” is visible
in the first array. The letters “L” and “Y” cannot be seen, and it is not observable from the
first array that Petitioner’s tattoo contains additional letters. Therefore, Mr. Lee could not
have discerned this detail from the first array. Viewing the facts in the light most favorable
to the State, because Detective DiSimone said that the detailed description of the tattoo was
provided before the first array, and because the fact that Petitioner’s tattoo contained
multiple letters is not discernable from the first array, we cannot conclude that the first
array corrupted Mr. Lee’s description of the assailant. We conclude that Mr. Lee’s
description of the assailant weighs in favor of reliability.
Level of Certainty
Additionally, we consider Mr. Lee’s level of certainty. Mr. Lee’s level of certainty
undisputedly wavered. During the first photo array, Mr. Lee said that Petitioner’s photo
looked like the assailant, but he was only 80% sure of his claim. Then, three hours later,
Mr. Lee saw Petitioner’s photo again, and he identified Petitioner as the assailant. This
time, Mr. Lee was 100% sure of his identification. Mr. Lee questioned his identification
two weeks later when he thought he saw the assailant on a dirt bike, even though he knew
Petitioner had been arrested. Mr. Lee’s level of confidence decreased sometime
subsequent to June 17, 2015, when Mr. Lee told an Assistant State’s Attorney that he was
70% sure of his identification of Petitioner. At the suppression hearing, Mr. Lee could not
explain why his confidence level varied. We conclude, as did the Court of Special Appeals,
29
that Mr. Lee’s wavering level of certainty does not weigh in favor of reliability.
Lapse in Time
Next, we must consider the length of time between the crime and the display of the
photo array. The attempted robbery occurred at 2:00 a.m. on June 17, 2015. The
presentation of the second array occurred at approximately 11:45 a.m. on June 17, 2015.
Approximately ten hours lapsed between the crime and the display of the photo array.22
Within that time frame, Mr. Lee also viewed the first array. Although Petitioner’s
photo was emphasized in the first array, and then repeated three hours later in the second
array, Mr. Lee never indicated that the first array impacted his identification. To the
contrary, Mr. Lee connected his identification to his memory of the incident, ten hours
earlier, and his prior encounters with the assailant at Staples. For instance, Mr. Lee wrote
on Petitioner’s photograph, “This is the same tattoo and face I remember robbing me and
the man I remember shooting me. I also remember him from coming into my job [at
Staples] on two different occasions.” He also explained that he was confident in his
identification because seeing Petitioner’s tattoo in the second array was “like a rush of
22
Petitioner contends that the identification is not reliable because Mr. Lee may have been
administered drugs while he was in the hospital. See Henderson, 27 A.3d at 906
(explaining that a witness’s level of intoxication may affect the reliability of an
identification). In appropriate cases, the influence of drugs or alcohol may impact the
reliability of an identification. Here, Mr. Lee did not recall being given any drugs at the
hospital. Mr. Lee testified, “They gave me . . . saline to re-hydrate myself and I asked for
hours can I have something to take care of the pain because it increased and I don’t even
remember them coming in. The only thing I remember them giving me was just the saline.”
Petitioner did not introduce any evidence at the suppression hearing indicating that Mr. Lee
was under the influence of drugs at the hospital. Therefore, this factor is inapplicable to
the present case.
30
memory from both Staples and what [he] remembered seeing that night.” We conclude
that the lapse in time between the crime and the confrontation weighs in favor of reliability.
Petitioner’s Neck Tattoo23
Finally, the Court of Special Appeals reviewed the presence of Petitioner’s neck
tattoo as an independent factor impacting the identification’s reliability. In its discussion,
the court explained that the assailant’s tattoo was distinctive to Mr. Lee and served as an
identifying feature. Channeling the logic from Sallie, the court concluded that because the
assailant and Petitioner both had the tattoo, Mr. Lee’s identification of Petitioner was
“inevitable indeed, but also . . . more rather than less reliable.” Small, 235 Md. App. 648,
691, 180 A.3d 163, 188 (2018) (quoting Sallie, 24 Md. App. at 472, 332 A.2d at 318).
We agree with the Court of Special Appeals that, for Mr. Lee, the tattoo was a
distinct, identifying feature of the assailant. Following the attempted robbery, Mr. Lee
described the assailant’s tattoo to law enforcement in detail. Furthermore, Mr. Lee testified
that he was confident in his ultimate identification of Petitioner because of “the tattoo
23
Petitioner argues that the Court of Special Appeals gave “double weight” to Mr. Lee’s
prior familiarity with the assailant and “triple weight” to Mr. Lee’s description of the tattoo
because the court weighed these facts in its analysis for multiple reliability factors. The
court mentioned Mr. Lee’s prior familiarity with the assailant in its analysis of Mr. Lee’s
prior description of the assailant, and also as an independent factor favoring reliability. In
addition, the court discussed the tattoo in its analysis of Mr. Lee’s opportunity to view the
assailant, the accuracy of Mr. Lee’s description, and as an independent factor favoring
reliability. We reject Petitioner’s claim that the court gave undue weight to Mr. Lee’s prior
familiarity with the assailant and description of the tattoo. The court appropriately
considered the totality of the circumstances. Clearly, one fact may give rise to multiple
inferences. See Manson, 432 U.S at 115, 97 S. Ct. at 2253, 53 L.Ed.2d 140 (The Court
considered the timing of the eyewitness’s description and the identification within the
analysis of two separate Biggers factors).
31
specifically.”
The Court of Special Appeals, however, viewed the second array in isolation. We
do not overlook the fact that part of Petitioner’s tattoo was displayed in the first photo
array, nor that Mr. Lee was not 100% certain that the person in the photo was the assailant.
Nonetheless, we observe that the second array portrayed more information about
Petitioner’s tattoo than the first array. The first array included one front-facing photo of
Petitioner, depicting the “M” in Petitioner’s tattoo. In addition to a front-facing photo of
Petitioner, the second array included a profile-view photo of Petitioner, depicting
Petitioner’s full “LYM” tattoo.
We discern from these facts that Mr. Lee was apparently not susceptible to the
suggestion inherent in depicting the “M” in Petitioner’s neck tattoo in the first array
because Mr. Lee did not make a positive identification during the first array. Mr. Lee noted
that Petitioner’s tattoo “look[ed] pretty much like the same tat[too] he saw [during the
incident].” He was, however, only 80% sure about his identification. Mr. Lee made an
identification with 100% certainty after he viewed the second array. Petitioner’s photo
appeared in the first array and in the second array. Yet, Mr. Lee did not indicate that he
chose Petitioner’s photo because his photo was repeated in the second array. Mr. Lee made
an identification and explained his level of confidence because of “the tattoo specifically.”
Notably, the tattoo appeared in full in the second array. Additionally, Petitioner
consistently tied his memories of the tattoo to his encounters with the assailant at Staples
and the attempted robbery. Viewing the facts in the light most favorable to the State, we
conclude that the tattoo was distinctive to Mr. Lee, and it aided his identification of
32
Petitioner as the assailant. Thus, this factor weighs in favor of reliability.
CONCLUSION
Having conducted an independent evaluation of the identification made by Mr. Lee
in light of Petitioner’s right to due process of law, we cannot say that Mr. Lee’s
identification of the assailant was unreliable. Although there was a risk that, by
emphasizing Petitioner in the first array and then repeating Petitioner’s photograph in the
second array, law enforcement guided Mr. Lee to identify Petitioner as the assailant, that
risk is diminished by the identification’s indicia of reliability. Specifically, Mr. Lee had
previously encountered the assailant at Staples, and had ample opportunity to view the
assailant at the time of the attempted robbery. Mr. Lee gave a specific and detailed
description of the assailant. He identified his assailant shortly after the crime and was aided
in making that identification because the assailant displayed a unique tattoo. Accordingly,
we conclude that Respondent presented clear and convincing evidence that Mr. Lee’s
identification was reliable, even in light of the suggestive extrajudicial procedure.24
24
Lastly, Petitioner argues that the Court of Special Appeals failed to weigh the
identification’s reliability against its indicia of suggestiveness, which Petitioner argues is
particularly prejudicial in this case because Mr. Lee’s identification was the only evidence
presented by the State to link Mr. Small to the crime. In Manson v. Brathwaite, the
Supreme Court declined to consider, in its due process inquiry, extraneous evidence of the
defendant’s guilt. 432 U.S. 98, 116, 97 S. Ct. 2243, 2254, 53 L.Ed.2d 140 (1977)
(“Although it plays no part in our analysis, all this assurance as to the reliability of the
identification is hardly undermined by the fact[] that respondent was arrested” where the
incident took place and visited there frequently). Furthermore, our review of the present
case is limited to the suppression hearing record. McFarlin v. State, 409 Md. 391, 403,
975 A.2d 862, 868-69 (2009). We do not review the record of the trial. Id. Therefore, any
evidence, or lack thereof, of the defendant’s guilt that was adduced at trial does not factor
into our due process inquiry.
33
Beyond that, the weight of the identification was a matter for the jury to resolve.
We hold that the Manson-Jones framework continues to be the proper test for
analyzing the admissibility of evidence of extrajudicial identification procedures.
Applying that test to the facts of this case, we conclude that the second photo array
procedure was suggestive. The identification, however, had sufficient indicia of reliability
to overcome the taint of that suggestiveness. Thus, we hold that the suppression court
properly denied Petitioner’s motion to suppress evidence of the second photo array.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED.
COSTS IN THIS COURT TO BE PAID
BY PETITIONER.
34
Circuit Court for Baltimore City IN THE COURT OF APPEALS
Case No. 115191006
Argued: October 10, 2018 OF MARYLAND
No. 19
September Term, 2018
___________________________________
MALIK SMALL
v.
STATE OF MARYLAND
___________________________________
Barbera, C.J.
Greene,
*Adkins,
McDonald,
Watts,
Hotten,
Getty,
JJ.
____________________________________
Concurring Opinion by Barbera, C.J., which
Adkins and McDonald, JJ., join.
____________________________________
Filed: June 24, 2019
*Adkins, J., now retired, participated in the
hearing and conference of this case while an
active member of this Court; after being
recalled pursuant to the Md. Constitution,
Article IV, Section 3A, she also participated
in the decision and adoption of this opinion.
I join the Court’s judgment because I am satisfied that the Court properly applied
the current framework for reliability of eyewitness identification set forth by the Supreme
Court in Manson v. Brathwaite, 432 U.S. 98 (1977), and adopted by this Court in Jones v.
State.1 I write separately to express my disappointment in the Court’s unwillingness to
consider seriously, and act upon, the research that currently informs the many “vagaries of
eyewitness identification.” United States v. Wade, 388 U.S. 218, 228 (1967).
With its continued adherence to the test in the present case, the Court has effectively
dismissed decades of extensive social science research, summarized not only in the brief
of Amici, The Innocence Project, Inc. and the University of Baltimore Innocence Project
Clinic, but also in a growing number of state supreme court decisions. My colleagues
acknowledge the research and note the attention the New Jersey Supreme Court has paid
to eyewitness identification evidence in State v. Henderson, 27 A.3d 872 (N.J. 2011). See
Small v. State, No. 19, 2018 Term, slip op. at 12-13 & nn.16-17. But, in the end, the Court
brushes the research aside and retreats to a lock-step application of the Manson test, the
soundness of which has since been called into serious question.
In doing so, the Court has missed an opportunity to join the growing number of state
supreme courts that recognize and are reacting to the serious due process concerns
attending eyewitness identifications. We should follow the path blazed by our sister
supreme courts and act upon the research. We should not persist in wholesale reliance on
an archaic test based on seemingly logical assumptions that have since been refuted.
1
310 Md. 569 (1987), cert. granted, judgment vacated on other grounds, 486 U.S. 1050
(1988), conviction aff’d, sentence vacated and remanded, 314 Md. 111 (1988).
The Supreme Court’s formulation of the test for identification reliability
In Foster v. California, the Supreme Court held, for the first and only time, that a
police procedure was “‘so unnecessarily suggestive and conducive to irreparable mistaken
identification’” and, consequently, “so undermined the reliability of the eyewitness
identification as to violate” the Due Process Clause of the Fourteenth Amendment. 394
U.S. 440, 442, 443 (1969) (citation omitted).
Three years later, in Neil v. Biggers, the Supreme Court clarified that when a police
procedure is challenged as unduly suggestive—thereby calling into question whether the
procedure violated due process—“the primary evil to be avoided is ‘a very substantial
likelihood of irreparable misidentification.’” 409 U.S. 188, 198 (1972) (citation omitted).
The Biggers Court concluded that even when a police procedure is deemed unduly
suggestive, the resultant identification could still be offered into evidence at trial so long
as the identification itself was reliable. Id. at 201 (reasoning that the witness’s “unusual
opportunity to observe and identify her assailant” during the crime made the identification
reliable).
To assist in determining reliability, the Biggers Court identified five factors: “the
opportunity of the witness 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 . . . at the confrontation, and the . . . time between the crime and the
confrontation.” Id. at 199-200. Then, in Manson, emphasizing that “reliability is the
linchpin in determining the admissibility of identification testimony,” 432 U.S. at 114, the
Supreme Court held that the courts should apply the five Biggers factors, viewed in light
2
of the totality of the circumstances, id. at 110, 116. For much of the intervening time, state
courts across the country, including those in Maryland, have followed the reliability test
announced in Biggers, refined in Manson, and, without alteration, applied by the Supreme
Court most recently in Perry v. New Hampshire, 565 U.S. 228 (2012).
Social science advances since the 1970s and the New Jersey Supreme Court’s landmark
decision
Since Manson was decided, a substantial body of social science research has
challenged the validity of the Manson test. I will not attempt to catalog that research, but
there is a general consensus that misidentification is the single greatest cause of wrongful
convictions in this country. The data shows that, before 2011, “more than seventy-five
percent of convictions overturned due to DNA evidence involved eyewitness
misidentification,” and that “[i]n half of the cases, eyewitness testimony was not
corroborated by confessions, forensic science, or informants.” State v. Henderson, 27 A.3d
872, 886 (N.J. 2011) (citations omitted); see also Brandon L. Garrett, Convicting the
Innocent: Where Criminal Prosecutions Go Wrong 48-49 (2011) (finding that of the first
250 DNA exonerations, 76% of the defendants had been misidentified); id. at 50 (finding
that witnesses choose fillers, i.e., non-suspects used to fill out lineups, in 30% of all
identifications).2 Further, a 2006 publication by the International Association of Chiefs of
2
Later studies confirm the role of mistaken identifications in falsely convicting
defendants. See Kaitlin Jackson & Samuel Gross, Nat’l Registry of Exonerations, Tainted
Identifications (Sept. 22, 2016), https://perma.cc/9ZZN-RG6X (finding unintentional
misidentifications, i.e., those without witnesses’ lying about the perpetrator or even that a
crime took place, contributed to 30% (572) of the 1,886 exonerations nationwide);
Innocence Project, Eyewitness Identification Reform, https://perma.cc/Z2VD-TAPH
(continued . . . )
3
Police concluded that “[o]f all investigative procedures employed by the police in criminal
cases, probably none is less reliable than the eyewitness identification. Erroneous
identifications create more injustice and cause more suffering to innocent persons than
perhaps any other aspect of police work.” Id. at 885-86 (quoting Int’l Ass’n of Chiefs of
Police, Training Key No. 600, Eyewitness Identification 5 (2006)).
The rapidly expanding body of social science research exposes the frailty of the
Manson factors for eyewitness identification reliability. In the words of Amici in the
present case, the Manson test “fails to protect against unreliable eyewitness identifications
because it focuses on factors that have a weak or no correlation with reliability while
ignoring those that are scientifically proven to impact the reliability of eyewitness
identifications.” Brief of Innocence Project, Inc., et al. as Amici Curiae Supporting
Petitioner at 6.
In large part, the New Jersey Supreme Court, in Henderson, led the way in departing
from long-held judicial assumptions. After oral argument in 2009, the court “appointed a
Special Master to evaluate scientific and other evidence about eyewitness identifications.
[He] . . . probed testimony by seven experts and produced more than 2,000 pages of
transcripts along with hundreds of scientific studies.” Henderson, 27 A.3d at 877. The
court adopted much of the “extensive and very fine report.” Id.
The Special Master’s research on scientific advances regarding the formation,
( . . . continued)
(finding approximately 71% of the more than 360 convictions overturned by DNA
evidence nationwide involved mistaken identification).
4
storage, and recall of memory reveals a sea change in the factual underpinnings of
eyewitness reliability. We should be dismayed that the assumptions of the Supreme Court
justices in 1972, however well-intended, still govern the way we in 2019 decide whether
an identification is reliable. For example, as the New Jersey Supreme Court observed in
Henderson, we now know far more about memory than we did in the 1970s:
During the 1970s, when the Supreme Court decided Manson,
researchers conducted some experiments on the malleability[3] of human
memory. But according to expert testimony, that decade produced only four
published articles in psychology literature containing the words
“eyewitness” and “identity” in their abstracts. By contrast, the Special
Master estimated that more than two thousand studies related to eyewitness
identification have been published in the past thirty years.
27 A.3d at 892 (emphasis added). Judicial procedures, the Special Master’s report stated,
must account for the fact that a “witness does not perceive all that a videotape would
disclose, but rather ‘get[s] the gist of things and constructs a ‘memory’ on ‘bits of
information . . . and what seems plausible,’” and that memory can therefore be “distorted,
contaminated and even falsely imagined.” Id. at 894.
The Henderson court’s framework for addressing identification evidence recognizes
a far more comprehensive list of suggestiveness and reliability factors than that devised
from whole cloth in the 1970s. Based on the research, these factors fall into one of two
categories, system variables and estimator variables. System variables are factors “within
the State’s control,” id. at 896, including:
• whether a lineup was “administered in double-blind or blind fashion,” id.;
• whether pre-identification instructions specified “that the suspect may or may
3
“Malleability” refers to the extent to which “an array of variables can affect and dilute
memory and lead to misidentifications.” State v. Henderson, 27 A.3d 872, 895 (N.J. 2011).
5
not be in the lineup or array and that the witness should not feel compelled to
make an identification,” id. at 897;
• whether a lineup or array is properly constructed or makes a suspect stand out,
id. at 897-98;
• whether post-identification feedback or confirmation “signal[s] to eyewitnesses
that they correctly identified the suspect,” thus “engender[ing] a false sense of
confidence in a witness,” id. at 899;
• whether a witness had multiple viewings of the same suspect during the
investigation and thus the later identification may merely “stem[] from . . . a
memory of the earlier identification procedure,” id. at 900;
• whether lineups are presented simultaneously or sequentially, id. at 901; and
• whether unreliable composites or suggestive showups were used, id. at 902-03.
Estimator variables are factors “beyond the control of the criminal justice system” and may
be “related to the incident, the witness, or the perpetrator.” Id. at 904. They include:
• the level of stress the eyewitness was under at the time of the events, id.;
• whether “weapon focus” may have “distract[ed] a witness and draw[n] his or her
attention away from the culprit,” id. at 904-05;
• the “amount of time an eyewitness has to observe an event,” id. at 905;
• the distance and lighting conditions between the eyewitness and the perpetrator,
id. at 906;
• eyewitness characteristics both temporary—like intoxication—or immutable—
like age—that can affect reliability, id.;
• characteristics of the perpetrator that can affect reliability, such as disguises,
masks, or changed facial features, id. at 907;
• the passage of time, as memories fade over time and “memory decay ‘is
irreversible,’” id.;
• whether the identification is “cross-racial,” as that is generally more difficult,
id.;
• whether private actors—e.g., other witnesses, newspaper accounts, or
photographs—may have altered a witness’s memory, id. at 907-08;
• the speed with which the witness makes an identification, id. at 909-10.
The Henderson court adopted a new procedure for evaluating suggestiveness and
reliability incorporating these variables:
First, to obtain a pretrial hearing, a defendant has the initial burden of
showing some evidence of suggestiveness that could lead to a mistaken
identification. That evidence, in general, must be tied to a system—and not
6
an estimator—variable.
Second, the State must then offer proof to show that the proffered
eyewitness identification is reliable—accounting for system and estimator
variables . . . .
Third, the ultimate burden remains on the defendant to prove a very
substantial likelihood of irreparable misidentification. To do so, a defendant
can cross-examine eyewitnesses and police officials and present witnesses
and other relevant evidence linked to system and estimator variables.
Fourth, if after weighing the evidence presented a court finds from the
totality of the circumstances that [the] defendant has demonstrated a very
substantial likelihood of irreparable misidentification, the court should
suppress the identification evidence. If the evidence is admitted, the court
should provide appropriate, tailored jury instructions . . . .
27 A.3d at 920 (footnote and citations omitted). Through the targeted consideration of new
variables and its new four-part inquiry, New Jersey has ameliorated two drawbacks to the
Manson framework: (1) it inadequately accounts for the impact of suggestiveness in the
first prong on reliability in the second prong; and (2) it does not incorporate current
knowledge about how the human brain functions.
Among the Special Master’s findings were insights on jurors’ reliance on witness
certainty. The Supreme Court included, in Biggers, the witness’s certainty as a reliability
factor, albeit without citing any scientific authorities. 409 U.S. at 199. Research studies
virtually unanimously indicate that, despite an eyewitness’s belief that his or her
identification is accurate, there is no statistically significant correlation between certainty
and accuracy. See Nat’l Research Council, Nat’l Acads., Identifying the Culprit: Assessing
Eyewitness Identification 6 (noting that the Manson test “treats factors such as the
confidence of a witness as independent markers of reliability when, in fact, it is now well
established that confidence judgments may vary over time and can be powerfully swayed
by many factors”).
7
The problem is compounded by many jurors’ “belief that eyewitness confidence
correlates with accurate identifications,” Brief of Am. Psychol. Ass’n as Amicus Curiae
Supporting Petitioner at 19 n.14, Perry, 565 U.S. 228 (No. 10-8974) (“APA Brief”)
(emphasis added). Also troubling are jury surveys and mock jury studies disclosing that
jurors do not intuitively understand the science of memory and, unless informed on the
subject, are inclined to accept the eyewitness’s level of “certainty.” See State v. Guilbert,
49 A.3d 705, 720-21 (Conn. 2012) (stating there is “near perfect scientific consensus” that
“eyewitness identifications are potentially unreliable in a variety of ways unknown to the
average jury”).
The New Jersey Supreme Court sought to inform jurors about the potential pitfalls
of seemingly certain eyewitness identifications. Noting the research, Henderson, 27 A.3d
at 917, the court held that “jurors should be told that poorly constructed or biased lineups
can affect the reliability of an identification and enhance a witness’ confidence,” id. at 899.
The court thus asked New Jersey’s Criminal Practice and Model Criminal Jury Charges
Committees “to draft proposed revisions to the current charge on eyewitness identification”
that reflect “all of the system and estimator variables . . . for which we have found scientific
support that is generally accepted by experts.” Id. at 925-26.
The Henderson court also permitted expert testimony “by qualified experts seeking
to testify about the import and effect of certain variables” but not to “opine on the
credibility of a particular eyewitness.” Id. at 925. The court “anticipate[d], however, that
with enhanced jury instructions, there will be less need for expert testimony” because jury
instructions “are focused and concise, authoritative (in that juries hear them from the trial
8
judge, not a witness called by one side), and cost-free; they avoid possible confusion to
jurors created by dueling experts; and they eliminate the risk of an expert invading the
jury’s role or opining on an eyewitness’ credibility.” Id. In the end, the court left “to the
trial court the decision whether to allow expert testimony in an individual case.” Id.
In Perry, the Supreme Court’s latest foray into this subject, the American
Psychological Association (“APA”), with both parties’ consent, submitted an amicus brief
urging the Supreme Court to revisit Manson and correct the assumptions made in that case:
[M]ost of [the Biggers] factors are indeed relevant to probable accuracy—
with the notable exception of witness certainty. But given that notable
exception, and given the plethora of other accuracy-related factors that
researchers have identified since Biggers and Manson, APA urges the Court,
in an appropriate case, to revisit the Manson framework so as to bring it in
line with current scientific knowledge.
APA Brief at 13 n.8 (citations omitted). Justice Sotomayor put an even finer point on the
matter in her dissent:
The empirical evidence demonstrates that eyewitness
misidentification is “the single greatest cause of wrongful convictions in this
country.” Researchers have found that a staggering 76% of the first 250
convictions overturned due to DNA evidence since 1989 involved
eyewitness misidentification. Study after study demonstrates that eyewitness
recollections are highly susceptible to distortion by postevent information or
social cues; that jurors routinely overestimate the accuracy of eyewitness
identifications; that jurors place the greatest weight on eyewitness confidence
in assessing identifications even though confidence is a poor gauge of
accuracy; and that suggestiveness can stem from sources beyond police-
orchestrated procedures.
565 U.S. at 263-64 (Sotomayor, J., dissenting) (footnotes omitted).
Additional states’ recognition of the research
The New Jersey Supreme Court does not stand alone in recognizing the need to
9
progress beyond the five-factor Manson test, particularly the factor associated with witness
certainty. Indeed, some states preceded New Jersey. E.g., State v. Long, 721 P.2d 483,
491 (Utah 1986) (“A careful reading of [the Biggers factors] will show that several of the
criteria listed by the Court are based on assumptions that are flatly contradicted by well-
respected and essentially unchallenged empirical studies.”); Brodes v. State, 614 S.E.2d
766, 770 (Ga. 2005) (agreeing with the Long decision and elaborating that “‘[t]he scientific
validity of the studies confirming the many weaknesses of eyewitness identification cannot
be seriously questioned at this point’” and research “‘ha[s] taught us much about the
fallibility of eyewitness identification’”). The Brodes Court concluded that, given “the
critical importance of accurate jury instructions as ‘the lamp to guide the jury’s feet in
journeying through the testimony in search of a legal verdict,’ we can no longer endorse
an instruction authorizing jurors to consider the witness’s certainty in his/her identification
as a factor to be used in deciding the reliability of that identification.” 614 S.E.2d at 771.
After Henderson, the Oregon Supreme Court conducted its own review of the
research. State v. Lawson, 291 P.3d 673, 685-88 (Or. 2012). That court acknowledged
that the “factors affecting the reliability of eyewitness identifications that we discuss are
similar to those described in Henderson,” id. at 685 n.3, before creating its own procedure
for adjudicating suppression motions grounded in the state’s evidentiary rules and naming
expert testimony and jury instructions as the appropriate remedies, id. at 696-97. The
Supreme Court of Hawaii also considered Henderson and took note, in particular, of New
Jersey’s “stringent standard” for requiring a cautionary instruction on cross-racial
identification. State v. Cabagbag, 277 P.3d 1027, 1037 (Haw. 2012). The court held it
10
“cannot be assumed that juries will necessarily know how to assess the trustworthiness of
eyewitness identification evidence”; therefore, “when eyewitness identification is central
to the case, circuit courts must give a specific jury instruction upon the request of the
defendant to focus the jury’s attention on the trustworthiness of the identification.” Id. at
1038-39. The court lamented that factfinders “continue to place great weight on the
confidence expressed by the witness in assessing reliability.” Id. at 1036.
Although in 2015, as the Court has recounted in the case at bar, we declined to adopt
the New Jersey Supreme Court’s findings and procedural overhaul, Smiley v. State, 442
Md. 168 (2015), three states have since done so. The Supreme Judicial Court of
Massachusetts established its own Study Group on Eyewitness Evidence, Commonwealth
v. Gomes, 22 N.E.3d 897, 900 n.3 (Mass. 2015), whose report often quoted from or
overlapped with the Henderson findings. See id. at 911-16. The report convinced the court
that some scientific principles “are ‘so generally accepted’[4] that it is appropriate in the
future to instruct juries” to help jurors apply those principles. Id. at 900. The court
appended to its opinion a “provisional instruction” modeled on New Jersey’s, see id. at
918-27 (citing Henderson in footnotes), to be given “until a model instruction is issued.”
Id. at 900-01. The Alaska Supreme Court conducted its own review of the research but
borrowed much from Henderson, Young v. State, 374 P.3d 395, 417-25 (Alaska 2016), on
its way toward requiring a procedure for trial courts that “closely follows the framework
4
The Massachusetts court explained at some length that whether “a principle of eyewitness
identification is ‘so generally accepted’ that it is appropriate to incorporate into a model
instruction” is determined by “the instruction’s underlying purpose and the concerns it is
intended to alleviate.” Commonwealth v. Gomes, 22 N.E.3d 897, 908 (Mass. 2015).
11
set out by the Supreme Court of New Jersey in State v. Henderson,” id. at 427. The court
also asked the state’s jury instructions committee to draft a model instruction consistent
with the research. Id. at 428. The Connecticut Supreme Court discussed the estimator and
system variables listed in Henderson, State v. Harris, 191 A.3d 119, 138-40 (Conn. 2018),
along with the “persuasive precedents of other state courts,” id. at 138, before
“conclud[ing] that the most appropriate framework [for trial courts to evaluate the
reliability of an identification] is that adopted by the New Jersey Supreme Court in State v.
Henderson,” id. at 143. Other state supreme courts have taken smaller steps.5
5
See, e.g., Minor v. United States, 57 A.3d 406, 413-14 (D.C. 2012) (citations omitted)
(reiterating a prior holding that expert testimony about eyewitness reliability is permissible
because the court had “learned much to cause us to reexamine our view that average lay
persons serving as jurors are well equipped to call upon their common sense” to assess the
credibility of eyewitness identification testimony); State v. Almaraz, 301 P.3d 242, 252-
53, 258 (Idaho 2013) (reiterating the Manson two-step but adopting Henderson in
instructing that system variables should be considered in the suggestiveness prong and that
estimator variables “serve to elaborate on this Court’s five-factor test for reliability,” and
allowing for expert testimony to address suggestive police practices); State v. Reid, 186
P.3d 713, 729 (Kan. 2008) (confirming the court’s “refinement” of the Biggers model by
its use of eight factors for excluding an eyewitness identification); State v. Mahmoud, 147
A.3d 833, 839 (Me. 2016) (“In light of the voluminous body of scientific research that has
emerged regarding the reliability of eyewitness identification, and the subsequent evolving
trend among both state and federal courts to instruct juries on this matter, we conclude that
it is permissible, where relevant, to instruct jurors on the reliability of eyewitness
identification.”); People v. Marshall, 45 N.E.3d 954, 960 (N.Y. 2015) (requiring per se
suppression of a pretrial identification if procedure is unduly suggestive); People v. Boone,
91 N.E.3d 1194 (N.Y. 2017) (requiring an instruction, in relevant cases, on cross-racial
identification reliability); Commonwealth v. Walker, 92 A.3d 766, 789 (Pa. 2014) (“Thus,
we observe that the potential fallibility of eyewitness identification is ‘beyond [the
knowledge] possessed by the average layperson,’ indeed, may be counterintuitive, and so
conclude that expert testimony on that subject could potentially assist the trier of fact to
understand . . . the factors which potentially impact eyewitness testimony.”); State v.
Copeland, 226 S.W.3d 287, 300-01 (Tenn. 2007) (same); State v. Ramirez, 817 P.2d 774,
781 (Utah 1991) (confirming the factors announced in State v. Long, 721 P.2d 483 (Utah
(continued . . . )
12
The current body of research makes a strong case for this Court not simply to break
free from reliance on the Manson test, but also to develop a more rigorous protocol for
assessing eyewitness identification reliability in Maryland courts.
This Court’s rejection of the substantial body of research
Though paying lip service to the growing body of social science research, the Court
refuses to consider seriously the scientific knowledge that the research has produced. The
Court dismisses Amici’s invitation to reverse this Court’s endorsement of the Manson test
in favor of the alternative trend in which the neuropsychological underpinnings of memory
are considered as guides of reliability. Four years ago, we declined a similar invitation to
adopt the Henderson “theories and methodologies” because “we [were] satisfied with the
two-part test set out in [Jones] for determining the admissibility of an extrajudicial
eyewitness identification.” Smiley v. State, 442 Md. 168, 179-80 (2015) (citing Jones v.
State, 310 Md. 569, 577 (1987)).6
Today, the Court “reaffirm[s] the well-settled [Manson] test,” slip op. at 1, and the
Smiley rejection of Henderson:
In Smiley, we had the opportunity to adopt New Jersey’s framework for
assessing the admissibility of eyewitness identifications, but we did not do
so. . . . Consistent with our decision in Smiley, we decline the invitation to
abandon the Manson-Jones framework, which Maryland courts use, and have
( . . . continued)
1986), that “more precisely define the focus of the relevant inquiry” than Biggers); State v.
Discola, 2018 VT 7, ¶¶ 30-31, 184 A.3d 1177, 1188-89 (Vt. 2018) (abandoning witness
certainty as a factor for evaluating reliability).
6
I joined the unanimous opinion of the Court in Smiley. That does not mean, though, that
I owe continued allegiance to the reasoning and holding of that case in the face of all that
we now understand about the frailty of the Manson test.
13
used for decades, to assess due process challenges to extrajudicial
identification procedures. The reliability inquiry remains to be whether,
under the totality of the circumstances, the challenged identification was
reliable, despite the suggestiveness in the identification procedure.
Id. at 14-15 (footnote and citations omitted). The Court, again, too hastily dismisses the
research that New Jersey and other courts have used to facilitate much needed procedural
improvements in applying identification law.
Departing from stare decisis?
To be clear, I do not argue here that the Court adopt and apply to the present case a
new test for determining the reliability of an eyewitness identification. What I do propose
is that the Court, going forward, forgo its continued adherence to the Manson-Jones
“framework[] which Maryland courts . . . have used for decades.” Id. Such reliance is no
reason to ignore science.
It is of little surprise that the presence of one or more of the system variables listed
in Henderson can significantly influence the outcome of a motion to suppress an
eyewitness identification. The good news, as noted in Henderson, is that system variables
are “within the State’s control.” Henderson, 27 A.3d at 896. With diligence by legislatures
and courts, procedures are being implemented to “take[] fully into account the scientific
research on memory, perception, and the impact of system and estimator variables to
continue to promote the due process concerns that originally animated this Court’s
adoption of the Manson/Jones test,” Brief of Innocence Project at 24.
It could be argued—and, indeed, the Court holds, slip op. at 15-16—that Maryland
judges, acting individually, could consider many of the system and estimator variables
14
under the umbrella of the Biggers factors or that nothing prohibits a trial court’s
consideration of additional factors. However, given that the Court today “do[es] not revise
this Court’s jurisprudence for assessing the admissibility of eyewitness identifications,”
slip op. at 15, there remains no requirement for a trial court to consider any factors other
than the traditional five, flawed as they are. Moreover, no additional prophylactic
procedure, like the Henderson four-step, has been implemented.
Enough of our sister states still retain the Manson-Jones framework that it cannot
seriously be labeled a “remnant of [an] abandoned doctrine,” Houghton v. Forrest, 412
Md. 578, 587 (2010) (alteration in original). However, some states’ jurisprudence indicates
that “the state of the law as a whole has evolved,” id., or is fast evolving. We ought not be
bound by precedent where it incorporates disproven assumptions or premises about the
reliability of memory.
Conclusion
“[T]he law will always lag behind the sciences to some degree
because of the need for solid scientific consensus before the law incorporates
its teachings. . . .” Appellate courts have a responsibility to look forward,
and a legal concept’s longevity should not be extended when it is established
that it is no longer appropriate.
Brodes, 614 S.E.2d at 771 (alterations in original) (citations omitted).
There is no reason Maryland cannot commit to a new framework. A variety of
solutions could help Maryland courts, in ruling on a suppression motion, avoid the
“primary evil” of “‘a very substantial likelihood of irreparable misidentification,’” Biggers,
409 U.S. at 198, and help jurors better determine the weight to be accorded to an
identification offered at trial. For those purposes, I suggest that this Court direct the Rules
15
Committee to craft and propose rules of procedure that bring scientific rigor to the
assessment of an eyewitness identification that a defendant has challenged as unduly
suggestive and, ultimately, unreliable. To that end, worthy of consideration is the
Henderson court’s new four-part procedure for evaluating suggestiveness and reliability.
See 27 A.3d at 920, supra. I also endorse the concept of leaving “to the trial court the
decision whether to allow expert testimony in an individual case.” Id. at 925. Likewise, I
suggest that this Court ask the Criminal Subcommittee of the Standing Committee on
Maryland Pattern Jury Instructions to create a pattern jury instruction for use in the
appropriate case, to better guide jurors. I await the day—which cannot come too soon—
when this Court, prompted by the research on potential fallibility of eyewitness
identification evidence, takes meaningful steps to improve Maryland’s pretrial and trial-
related procedures, so as to mitigate, if not eliminate, the present concerns that attend the
admission of, and weight given to, such evidence in future cases.
Judge Adkins and Judge McDonald have authorized me to state that they join this
opinion.
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