Improper Photo Lineup: When is it Unduly Suggestive?

Williams asked if the shooters were the two folks (Wilson and Pops) parked outside the car wash that he saw before leaving. He was told yes. Brown had come to work while the shooting was taking place and left quickly without getting involved.

One worker, Randy Bowie, ran out of the car wash and escaped.

Police arrested Wilson and Pops and then showed Brown, Bowie and Williams photographic line ups from a “Mug Book” at the station. Police showed Brown, Bowie and Williams sheets of 20 suspect photos at a time, none of which included Wilson or Pops.

In each photographic line up, Brown, Bowie and Williams said they did not see either suspect. All three witnesses were then shown a second “round” of 20 more photographs, none of which included Wilson or Pops. None of the three witnesses identified either of the two suspects from these photographs.

The police then conducted a live line up with a “six pack” of live suspects, including Pops and Wilson. Two of the witnesses identified Pops and Wilson. The third witness indicated one of the people in the line up, Wilson, that he looked like a suspect, but he could not be sure.

One of the witnesses identified Wilson as one of the shooters because of the “smirky grin” on his face and the shape of his mouth.

Mistaken identity was one of the defenses of Wilson and Pops at trial. They both offered up alibis to support their argument.

The jury convicted Wilson and Pops to four murders each, burglary and robbery. They were each sentenced to death.

On their automatic appeal, they raised many arguments, but the scope of this article will only cover their argument that their right to due process was violated by an unduly suggestive line up and in particular that police chose to use a photograph of Wilson with a “smirky grin” on his face that caused more attention to be paid to him.

The California Supreme Court set forth the law on an unduly suggestive line up or mug shot presentation, explaining that a due process violation occurs “only if the identification procedure is ‘so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’” People v. Sanchez (2019) 7 Cal. 5th 14, 35.

If a judge decides the procedure was suggestive, no due process violation arises if “’the identification itself was nevertheless reliable under the totality of the circumstances.’” People v. Clark (2016) 63 Cal. 4th 522, 556, quoting People v. Kennedy (2005) 36 Cal. 4th 595, 608. In assessing the totality of the circumstances, the judge will consider “such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness’s degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification. . . . Against these factors is to be weighed the corrupting effect of the suggestive identification itself.” People v. Sanchez, supra, at pp. 35 – 36.

In this case, the Second Appellate District Court found no due process violation in the line up identification. The California Supreme Court affirmed this ruling, finding that the “smirky grin” on the photo was not so suggestive that the witness should select him. All the suspects in the photographic line up were of the same race and they had the same background. Moreover, the Supreme Court found “nothing unique” or distinctive about the mouth shape in Wilson’s photograph anyway. There was nothing that made his photo “stand out” from the other men depicted.

We present this summary to illustrate how difficult it is to attack a line up as a due process violation. The law favors the eyewitness identification being made on the basis of the witness or victim recognizing the suspect for his looks and it is extremely difficult to prevail on an argument that the line up was unduly suggestive unless it was almost laughably suggestive.

The citation for the California Supreme Court ruling discussed above is People v. Byron Wilson and Aswad Pops (2021) 11 Cal. 5th 259, 277 Cal. Rptr. 3d 24, 484 P. 3d 36.

For more information about suspect identification issues, please click on the following articles: