I seem to be taking on a lot more cases with major identification issues as of late. As a result, I’ve been preparing quite a few Dessureault motions. In Arizona, a Dessureault motion is what lawyers call a motion challenging an unduly suggestive pretrial identification procedure. Because an unduly suggestive photo or in-person lineup can mean that a witness misidentifies the defendant not merely at the time of the lineup but also at trial, the case law requires that the trial court hold a hearing to determine whether the pretrial identification process was unduly suggestive. At that hearing, the state bears the burden of proving by clear and convincing evidence that the process was not unduly suggestive.
It might seem like the law is relatively pro-defendant in this area, but it isn’t. Courts make sure of that. “Subtle” differences don’t matter, and what courts are willing to call subtle is often anything but. The courts end up construing “subtle differences” as encompassing almost any difference. The people in the lineup basically just have to resemble one another. Courts also tend to ignore the portions of some controlling opinions saying the suspect’s photograph must not stand out. The case law is ridiculous.
There’s no problem if the defendant’s is the blurriest photograph. His can be the first, and it can even be the only one taken from a unique angle. That’s to be expected, but Arizona courts go several steps farther. The defendant can be the only one with a beard. He can be a different height and weight and have a different hair length from everyone else. He can have all of those difference and also be the only one with a mustache. That may seem bad, but it isn’t the worst. Believe it or not, it isn’t unduly suggestive to do a photo lineup where the defendant is disfigured, with two blackened eyes and a broken nose, and everyone else is fine. Apparently, Arizona courts think that looking like Rocky after fifteen rounds with Apollo Creed amounts to “a subtle difference” from your average guy-on-the-street.
If the case is serious enough, I imagine there’s no limit to what differences the courts are willing to call subtle. As in pretty much every area of the criminal law, courts tend to make it so whatever the state wants to admit is ultimately allowed, thus assuring a conviction. Given the absurd lengths to which they’ll go to uphold an identification, I almost wish they’d quit pretending to care about subtle differences and a basic resemblance and announce that any lineup is a constitutional lineup. At least that would be honest.