In Court Identification Suggestive
In considering the scope of due process rights afforded a defendant with regard to the admission of identification evidence, the United States Supreme Court has held that a pretrial identification procedure may be so suggestive and conducive to mistaken identification that subsequent use of that identification at trial would deny the accused due process of law. Stovall v. Denno, 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967 (1967);
Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995), cert. denied, 516 U.S. 1176, 116 S. Ct. 1271, 134 L. Ed. 2d 217 (1996).
Hence, the Supreme Court formulated a two-step analysis to determine the admissibility of an in-court identification:
whether the out-of-court identification procedure was impermissibly suggestive; and, if suggestive;
whether that suggestive procedure gave rise to a substantial likelihood of irreparable misidentification.
Simmons v. United States, 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968); Barley, 906 S.W.2d at 33. An analysis under these steps requires an examination of the "totality of the circumstances" surrounding the particular case and a determination of the reliability of the identification. Id.