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In <a href="http://publicdocs.courts.mi.gov:81/SCT/PUBLIC/ORDERS/155245_69_01.pdf" target="_blank" rel="noopener">People v. Thomas, No. 155245</a>, the Michigan Supreme Court granted oral argument and instructed the parties to file supplemental briefs addressing whether presenting an alleged victim with a single photograph to identify the suspect creates a substantial likelihood of misidentification that violates a defendant’s right to due process. The trial court granted the defendant’s motion to suppress the identification evidence, determining that it was so suggestive that it violated his right to due process. However, the Court of Appeals—in a divided decision—<a href="http://publicdocs.courts.mi.gov/OPINIONS/FINAL/COA/20161208_C326311_60_326311.OPN.PDF" target="_blank" rel="noopener">reversed and remanded</a>. 
  
This case began when an assailant robbed and shot the victim near a Detroit gas station. Shortly after the shooting occurred, police took the victim to a nearby hospital. Within thirty minutes of the incident, a Detroit police offer canvased the area surrounding the gas station, found the defendant, and took his photograph with her cell phone. At the hospital, the officer showed the victim the cell phone photograph of the defendant and asked “was this him?”  In response, the victim said, “that’s him,” identifying the defendant as the assailant within seconds of viewing the image. 
  
The Court of Appeals acknowledged that showing a witness a single photograph is an extremely suggestive process, but held that the trial court failed to conduct a proper inquiry of the identification procedure. The trial court should have considered: (1) the opportunity of the witness to view the suspect at the time of the crime, (2) the witness’s degree of attention, (3) the accuracy of the witness’s prior description of the suspect, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation. Additionally, the Court of Appeals classified the single photographic identification procedure as comparable to on-the-scene identification because, similar to this other procedure, it allows police to immediately decide whether a suspect is connected to the crime.   
  
The Supreme Court will hear oral argument addressing: (1) whether the single photographic identification method used in this case was so impermissibly suggestive that it gave rise to a substantial likelihood of misidentification; and (2) if so, whether the complainant’s in-court identification had an independent basis so that it was not subject to suppression.

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Associate

Adam T. Ratliff

Labor and Employment

MSC to hear oral argument on whether single photographic identification violates due process

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MSC to hear oral argument on whether single photographic identification violates due process

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