State v. Dessureault
In State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969), about nine hours after an armed robbery, the victim/witness identified the defendant in a live lineup that included him and three others. 104 Ariz. at 382, 453 P.2d at 953.
At trial, the victim again identified Dessureault as the robber. Id. Our supreme court determined that the pretrial identification procedure was unduly suggestive because Dessureault was the only person in the lineup who had a moustache and a beard, as had the robber. Id. at 383, 453 P.2d at 954.
Under the circumstances, the court held that, "although the pretrial identification was unduly suggestive, the in-court identification had an independent source other than the lineup." Id. at 384, 453 P.2d at 955.
Because the legally flawed pretrial identification "was not conducive to irreparable mistaken identification," and because the victim's "identification was positive and unequivocally made from the defendant's face," the court found no reversible error. Id. at 385, 453 P.2d at 956.
Referring to situations in which "pretrial identifications" of defendants have been made, id. at 383, 453 P.2d at 954, the court set forth the following "effective procedures at the trial court level":
First, if at the trial the proposed in-court identification is challenged, the trial judge must immediately hold a hearing in the absence of the jury to determine from clear and convincing evidence whether it contained unduly suggestive circumstances.
In this the burden is on the prosecution to establish from all the circumstances surrounding the pretrial identification that it was not such as to be unduly suggestive.
Second, if the trial judge concludes that the circumstances of the pretrial identification were unduly suggestive or that the prosecution has failed to establish by clear and convincing evidence that they were not, then it is the prosecution's burden to satisfy the trial judge from clear and convincing evidence that the proposed in-court identification is not tainted by the prior identification.
Third, if requested, the court must instruct the jury that before returning a verdict of guilty it must be satisfied beyond a reasonable doubt that the in-court identification was independent of the previous pretrial identification or if not derived from an independent source, it must find from other evidence in the case that the defendant is the guilty person beyond a reasonable doubt. Id. at 384, 453 P.2d at 955.
The Arizona Supreme Court set forth the procedure to be followed when a proposed in-court identification has been challenged on grounds that it will be tainted by an unduly suggestive pretrial identification method.
First, a hearing must be held "to determine from clear and convincing evidence whether the prior identification contained unduly suggestive circumstances." Id. at 384, 453 P.2d at 955.
If the prosecution fails to establish that the identification was not unduly suggestive, it may then attempt to prove that the proposed in-court identification is not tainted. Id.
If the court finds the in-court identification admissible on that basis, upon request it must provide a cautionary jury instruction concerning the relationship between the pretrial and in-court identifications. Id.