The Reliability of An Identification Procedure
"In determining whether identification procedures violate a defendant's due process rights, the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive;
and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. . . . to prevail in his claim, the defendant must demonstrate that the trial court erred in both of its determinations regarding suggestiveness and reliability of identifications in the totality of the circumstances. . . . An identification procedure is unnecessarily suggestive only if it gives rise to a very substantial likelihood of irreparable misidentification. . . . If the procedures used to identify the defendant were not unnecessarily suggestive, we need not independently analyze whether the identification was reliable. . . . State v. Taylor, 239 Conn. 481, 498-99, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997).
The defendant bears the burden of proving both that the identification procedures were unnecessarily suggestive and that the resulting identification was unreliable. State v. White, 229 Conn. 125, 162, 640 A.2d 572 (1994).
Generally, the exclusion of evidence from the jury is . . . a drastic sanction, one that is limited to identification testimony which is manifestly suspect. State v. Wooten, 227 Conn. 677, 685-86, 631 A.2d 271 (1993) . . . ." (Citation omitted; internal quotation marks omitted.) State v. Austin, 244 Conn. 226, 246-47, 710 A.2d 732 (1998).
A one-on-one show-up does place upon the identification process an inherent level of suggestiveness and susceptibility to misidentification. State v. Middleton, 170 Conn. 601, 607-608, 368 A.2d 66 (1976).
Show-ups, however, and procedures like them "tend under some circumstances to ensure accurate identifications and the benefit of promptness not only aids reliability but permits a quick release of an innocent party if there is no positive identification, allowing the police to resume the investigation with only a minimum of delay." State v. Sims, 12 Conn. App. 239, 242, 530 A.2d 1069, cert. denied, 206 Conn. 801, 535 A.2d 1315 (1987).
The show-up identification used here involved the defendant standing with police on either side of him, with streetlights and car lights illuminating him.
This scenario does retain an element of suggestiveness, but is not in itself so unduly suggestive such that it was improper. See State v. Wooten, supra, 227 Conn. 686 (confrontation between victim and suspect seated in back of police car suggestive, but not unnecessarily so); compare State v. Askew, 55 Conn. App. 34, 40, 739 A.2d 274 and n.5, cert. denied, 251 Conn. 918, 740 A.2d 866 (1999).
Furthermore, the identification was reliable on the basis of the totality of the circumstances. See State v. Reddick, 224 Conn. 445, 465, 619 A.2d 453 (1993) (reliability of unduly suggestive identification is linchpin of admissibility).
The reliability of an identification procedure is considered under various factors, such as "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and confrontation.
Against these factors is to be weighed the corrupting effect of the suggestive identification itself. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977) . . . ." State v. Davis, 198 Conn. 680, 683-84, 504 A.2d 1372 (1986).