Factors for challenging a photo lineup that is overly suggestive

In June of 2015, the Tenth Circuit addressed photo-lineups again.

They said that determining whether a photo lineup is overly suggestive the Court has to consider various factors: the size of the array [how many people are in the lineup], the manner of its presentation [did the police make it obvious whom they wanted the accuser to point out], and the details of the photographs, and looked to United States v. Smith (10th Cir. 1998), which has been the guiding case on this for nearly twenty years.

They said that the number of pictures of picture in the display is not itself a “substantive factor,” but instead is a factor that merely affects the weight given to other alleged problems or irregularities in an array.” Sanchez, 24 F.3d at 1262 (stating that “minor irregularities will be less noticeable and prejudicial as the number of photographs increases.”).

The court found that twenty photographs is not by itself problematic, and does not indicate an unfairly suggestive identification method. But, they made it known that a Defendants can challenge the manner in which it was presented, so it is key that you have your attorney look into that. Did the cops stops on a certain page, or slow down when they got to a certain photo to hint that a photo on that page was their guy? These types of subtleties can easily get missed.

Also, were the people in the photos “reasonably matched by race, approximate age, and hair type?” If some of the photos show people that are too light-skinned or dark-skinned (or whose hair is too straight or too curly, etc.) to be consistent with the victims’ descriptions that may make the array overly suggestive.

Was the defendant was the only one in twenty photographs to have a beard or whose hair was braided), which matched what the victim said? United States v. Shoels, 685 F.2d 379, 385 (10th Cir. 1982)

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