UNITED STATES OF AMERICA v. MONCLAIRE SAINT LOUIS
US Court of Appeals for the Fourth Circuit, Diaz, May 2, 2018,
Pre-Trial Identification – Repeating a photograph in a photo array doesn’t automatically exclude it from being allowed in evidence when the second array was shown months later and the identification appears otherwise reliable.

“Although we agree with the district court’s observation that it certainly was not a perfect trial…”
Ok, you have my attention

Facts:
During the summer of 2012, two U.S. citizens were kidnapped in Haiti.
Yvroseline Fergile was forced at gunpoint into a car, beaten, and held for seven days before she escaped. While being held, she was able to speak with and see her kidnappers. Haitian police showed Fergile a poster of a rap group recovered from the house where she was held and from the poster Fergile identified Saint Louis and another individual as two of her kidnappers. Tulin, another defendant, was on the poster but not identified by Fergile at the time.
Ariante Marcelin was abducted at gunpoint from her home while her niece was raped there. She was then held for four days until one of her kidnappers was arrested and led police to where she was being held.
An FBI agent traveled to Haiti to investigate the kidnappings and later met with Fergile. During his interview with Fergile, he showed her a photo array containing a picture of Tulin taken from the rap poster she had previously been shown. Five other filler photos were prepared and altered to look cropped and pixilated with a dark background so that they were similar to the photo of Tulin from the poster. This time, Fergile identified Tulin. She told the agent that she remembered that Tulin had told her that he needed money because he was poor and she was rich. She said that she remembered Tulin being in a rap poster that the Haitian police had shown her (though she did not identify him at that time).
Saint Louis and Tulin were charged with hostage taking and other crimes.
At trial, Tulin moved to keep Fergile’s identification of him out of evidence, claiming that because she was shown the picture two times it was improperly suggestive. The trial court allowed it, however.
At trial, Fergile failed to identify Tulin in the courtroom and claimed that she had never identified him to the FBI agent.
Despite this, both Saint Louis and Tulin were convicted.
They appealed, raising several issues including the suggestive nature of Tulin’s identification.

Held: The Fourth Circuit held that the photo array was not improperly suggestive.

Identification – Due process protects a defendant against the use of an out-of-court identification that was so improperly suggestive that there is a “very substantial likelihood of misidentification”

Identification – A pre-trial identification is improper when it is “both suggestive and unnecessary”

Photo Array – Suggestiveness – A photo array may be improperly suggestive where the defendant’s photo stands out sharply from the others

From the Case: The photo array was not impermissibly suggestive. “The FBI did an acceptable job creating a photo array that contained similar-looking photos. The headshot of Tulin that was lifted from the rap poster was cropped so that it showed only his head and neck against a dark background, removing any indication of the context of the rap poster that might have been gleaned from including Tulin’s clothing or the text from the original image. Further, Tulin’s neutral expression in the photo is similar to those of the individuals pictured alongside him in the array. The filler photos show men of similar age, build, and complexion, with similar hairstyles. Several of the photos were also cropped and set against dark backgrounds. And, as the district court noted, at least one other photo had the ‘same kind of glossy look to it as Mr. Tulin’s.'”

Photo Array – Suggestiveness – Repeating Photos – Repeated inclusion of a suspect in more than one photo array shown to the same witness is suggestive if the repetition signals to the witness who he or she should select

Photo Array – Suggestiveness – Reapeating Photos – An array is not automatically suggestive just because it includes a photo of the suspect that the witness has already seen.

Note: Other factors may come into play for a repeated photo, such as: how long was it since the witness was shown the first photo? how memorable is the photo? were any other photos repeated? was attention drawn to the repeated photo?

Practice Note: If a repeat array is needed that will include one or more of the same people, avoid: using the same or similar picture in both arrays, showing the arrays the same day, or drawing attention to the fact that the same person appears more than once.

Identification – Reliability – Even if a pre-trial identification procedure is improperly suggestive, the identification may still be reliable.

Identification – Reliability- The reliability of an identification depends on the facts of the case. Certain factors may be considered in determining whether an ID is reliable, such as:
– the opportunity of the witness to view the criminal at the time of the crime
– the witness’ degree of attention at the time of the crime
– the accuracy of the witness’ prior description of the criminal
– the level of certainty demonstrated by the witness at the time of the identification
– the length of time between the crime and the identification

From the Case: “Here, the first and second factors—the witness’s opportunity to view the criminal and her degree of attention at the time of the crime—strongly support a finding of reliability. Fergile was able to see her captors and speak with them during the seven days she was held. She was also able to recall specific details about her captivity, showing a high degree of attention during that time. Meanwhile, the third factor—the accuracy of any prior description of the criminal—doesn’t assist our analysis here because [the FBI agent] didn’t ask Fergile to describe Tulin before he showed her the photo array. With respect to the fourth factor (the witness’s level of certainty at the confrontation), Fergile showed a high level of certainty when she picked Tulin’s photo from the array… Finally, the fifth factor—the length of time between the crime and the confrontation—does not support reliability here… Fergile’s record for reliability was not the best. She identified Saint Louis and Kwason in the initial show-up in Haiti on the day of the crime, but not Tulin. Then, three months later, she picked Tulin from a photo array but failed to identify another of her captors, Jolibois, in a different array. And at trial, in the most suggestive of circumstances (albeit four years later), she was unable to identify Tulin in the courtroom.”

From the Case: “Weighing all of these factors together against the corrupting effect of the FBI’s photo array, we conclude that Fergile’s identification of Tulin was reliable…”