Let’s take a look at United States v. Criswell, a case decided by the Army adverse to the appellant, and now pending review at CAAF, on the following issue.
No. 18-0091/AR. U.S. v. Andrew J. Criswell. CCA 20150530. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING A DEFENSE MOTION TO SUPPRESS THE ACCUSING WITNESS’S IN-COURT IDENTIFICATION OF APPELLANT.
Army CID made a number of amateurish mistakes in identifying the accused in a military sexual assault case and then failing to secure or gather supporting evidence that may have helped the prosecution. (One of the problems in MCIO investigations these days is that they are conducted as “victim-centric” “investigations,” not as criminal investigations. That means a contrived or command directed confirmation bias which misses or loses evidence for the defense and the prosecution.) This investigation is another example of why neither trial nor defense should take CID (or other LE) investigations at, dare I say it, face value.
The military judge found that SPC Al-S showed the CID agent appellant’s photograph from SPC Al-S’s phone.14 The CID agent then showed the single photograph to SPC AM who immediately identified appellant as the person who assaulted her at the dance party. Prior to showing SPC AM the photograph, the CID agent did not arrange a photo array or present SPC AM any other options but to say that the photograph was or was not the person who assaulted her. This court also notes that the government did not present evidence or any exigent circumstances to explain the CID agent’s decision that it was necessary to show SPC AM the single photograph. The military judge concluded that the identification method used by the CID agent was unnecessarily suggestive. This issue is unchallenged on appeal and we agree with the military judge’s conclusion that the pretrial identification was unnecessarily suggestive.
A footnote tells us that
Even without the CID agent showing SPC AM appellant’s Facebook profile picture before trial, SPC AM would have seen the photograph absent any error in law enforcement procedures. While SPC AM was waiting to be interviewed by CID, her father sent her the picture of appellant to her phone. She opened up the picture but “didn’t even take a glance at it” since she was waiting for the interview. However, after CID showed her the picture of appellant from Al-Shamesi’s phone, she looked at the picture her father sent and confirmed that they were the same photographs.
(Further potential contamination.) As I read the opinion, CID did nothing to copy and or preserve any of the photographs or images used by the complaining witness for her out-of-court identification which was a foundation for the in-court identification. By that failure, the CID set up the opportunity for the defense to impeach her with other photographs of the night in question and which CID had apparently failed to look for.
So, on appeal, the issue is whether the military judge made a mistake in letting the complaining witness identify appellant after having been exposed to an unnecessarily suggestive pretrial identification procedure.
Here are some initial resources to get the defense counsel started in challenging identifications.
NIJ, OJP, USDOJ, Eyewitness Evidence: A Guide for Law Enforcement (and DC seeking to XE on a bad ID). https://www.ncjrs.gov/pdffiles1/nij/178240.pdf
You might also take a look at the following for a starting point when ID is an issue. Wise, Richard A. and Safer, Martin A., “A Method for Analyzing the Accuracy of Eyewitness Testimony in Criminal Cases” (2012). Court Review: The Journal of the American Judges Association. 387. http://digitalcommons.unl.edu/ajacourtreview/387