This week in United States v. Washam the Sixth Circuit, over a strong dissent, handed down a case that could serve as a primer on how to convict someone without any actual evidence of guilt. This bank robbery case is chock full of errors, but the most interesting one is perhaps the failure to suppress pretrial identifications.
In order to exclude such identifications, a defendant must show that the identification procedure was unduly suggestive and the identifications were not “otherwise reliable.” Here, the police used a photo array in which only one photo (the defendant’s) came even close to matching the description of the suspect. Accordingly, there is no dispute that the procedure was unduly suggestive. After all, if the other photos are all clearly wrong, what choice did the witnesses have but to pick the defendant’s photo?
But were the identifications “otherwise reliable” and does that term have any real meaning after this case? Though the majority would answer those questions in the positive, in a practical sense, the answer is probably “no.” First, even though the array was highly suggestive, only three out of five bank employees managed to pick out the defendant’s photo. Second, even those employees that picked out the defendant’s photo failed to identify him as the robber and merely stated that he resembled the robber more than the other pictures:
“One employee wrote, ‘I  feel that number 3 looks very similar to the gentleman that robbed our branch. When I saw the lineup he immediately jumped out at me.’ The second employee wrote, ‘[N]umber 3 looks like the robber.’ The third employee wrote, ‘Possible number 3, same shaped face, cheekbone structure, eyebrows look like the [robber].’” (internal citations omitted).
Third, at trial only one of the three employees was able to successfully identify the defendant in person. Fourth, the only employee to identify the defendant at trial was not one of the tellers and was the employee with the worst vantage point to observe the robber. Finally, the circumstances of the crime were not conducive to accurate identification: the robber was a stranger to the tellers, the employees only interacted with the robber for a few brief minutes, several of the employees stated that the gun distracted their focus from the robber himself, there was an issue of whether the cross-racial identifications were inherently suspect, and the robber was disguised by a baseball cap and sunglasses.
Respectfully, if the identifications in this case were “otherwise reliable” despite the unduly suggestive nature of the procedures used, then it seems that the phrase “otherwise reliable” no longer has any real meaning as a limitation on the government’s ability to manipulate evidence.