201 A.3d 43
Md. Ct. Spec. App.2019Background
- Daniel Greene was indicted for first-degree murder; the victim was his ex-partner’s new boyfriend. Police recovered a surveillance video showing a figure near the victim’s apartment.
- Jennifer McKay, the victim’s former partner and Greene’s former long-term partner, viewed the video at the police station and identified the figure as Greene. Her identification was recorded; she repeatedly said the image “looks like” Greene ("I think so") but expressed some hesitation due to image quality and personal disbelief.
- Defense moved to suppress both the out-of-court and in-court identifications, arguing police used impermissibly suggestive procedures; the suppression court granted the motion.
- State appealed under Maryland’s provision allowing immediate appeal of suppression of substantial evidence in criminal cases; this Court reversed and remanded.
- The Court’s primary holding: this was a “confirmatory identification” (witness knew the suspect well), not a classic selective identification implicating constitutional identification doctrine; even assuming constitutional law applied, the suppression was erroneous because the court failed to analyze reliability under the Biggers/Manson framework and improperly excluded evidence that jurors should weigh.
Issues
| Issue | State's Argument | Greene's Argument | Held |
|---|---|---|---|
| Whether constitutional identification (due process/Sixth Amendment) law governed the pretrial/video ID | Identification law applies; alleged police suggestiveness could taint identification | This was a confirmatory ID of someone well known to the witness, so constitutional ID rules do not apply | Court: This was a confirmatory ID; constitutional identification doctrine did not apply as main matter (but Court analyzed arguendo) |
| Whether the out-of-court (police-station) identification should be suppressed for impermissible suggestiveness | Police questioning did not produce a very substantial likelihood of irreparable misidentification; reliability factors favor admission | Police led/pressed witness and thereby created impermissibly suggestive procedure requiring suppression | Court: Suppression was erroneous — trial court focused only on suggestiveness and failed to apply Biggers/Manson reliability totality; evidence should have been admitted or remanded for further proceedings |
| Whether the in-court identification must also be barred as tainted by the pretrial procedure | In-court ID should be admissible; any problem is reparable and for jury to weigh | In-court ID is tainted by prior impermissible procedure and must be excluded | Court: Exclusion of in-court ID was erroneous — jurors could compare surveillance and witness testimony; any uncertainty likely reparable |
| Whether police coaching of witness (urging greater certainty) required exclusion | Coaching affected only degree of certainty (weight), not identity; jurors should assess credibility | Coaching rendered identification unreliable and required suppression | Court: Characterized conduct as potentially improper coaching but not the kind of selection-contaminating suggestiveness that produces irreparable misidentification; coaching affects weight, not admissibility |
Key Cases Cited
- Stovall v. Denno, 388 U.S. 293 (1967) (one-on-one show-ups analyzed under due process; suggestive procedures may be permissible in exigent circumstances)
- Simmons v. United States, 390 U.S. 377 (1968) (pretrial photographic identifications excluded only if procedure creates a very substantial likelihood of irreparable misidentification)
- Neil v. Biggers, 409 U.S. 188 (1972) (factors for assessing reliability of identification: opportunity to view, attention, prior description accuracy, certainty, time elapsed)
- Foster v. California, 394 U.S. 440 (1969) (exclusion where suggestive procedures made identification all but inevitable)
- Manson v. Brathwaite, 432 U.S. 98 (1977) (totality-of-circumstances/reliability approach favored over per se exclusion for suggestive identifications)
- Perry v. New Hampshire, 565 U.S. 228 (2012) (due process hearing not required absent state action creating suggestiveness; reliability usually for jury)
- People v. Rodriguez, 79 N.Y.2d 445 (1992) (recognizing "confirmatory identification" exception where witness and suspect are known to one another)
- Wood v. State, 196 Md. App. 146 (2010) (survey of identification-law development and shift from exclusionary Sixth Amendment focus to reliability-based due process inquiry)