A defendant who has been picked out of a photographic lineup or during a show-up can file a motion to suppress the identification. For the due process clause of the Fourteenth Amendment to come into play in an identification procedure state action must be involved. Gandy v. State, 290 Ga. 166 (2011); Lyons v. State, 247 Ga. 465 (1981). Hall v. State, 309 Ga. App. 179 (2011). Pretrial identifications cannot be suppressed simply because the witnesses gave inconsistent accounts of the perpetrator. Funes v. State, 289 Ga. 793 (2011).
The judge uses a two-part test in determining whether evidence of pre-trial identification should be excluded. Wright v. State, 298 Ga. 714 (2014). First, the judge determines whether the identification procedure was impermissibly suggestive. Doublette v. State, 278 Ga. App. 746 (2006). In other words, was the process the witness went through impermissibly suggestive. Green v. State, 291 Ga. 287 (2012). The process includes where, when, and how the witness made the identification and anything that was said to the witness before and during the identification process. An identification procedure is impermissibly suggestive when it leads the witness to an all but inevitable identification of a defendant as the perpetrator, or is the equivalent of the authorities telling the witness, “This is our suspect.” Armour v. State, 290 Ga. 553 (2012). Although it should be avoided, the officer making a statement that the suspect is in the line-up does not make the line-up impermissibly suggestive, Clark v. State, 271 Ga. 6 (1999). Slight differences in the size, shading, or clarity of photographs used in an identification line up will not make the lineup impermissibly suggestive. Pinkins v. State, 300 Ga. App. 17 (2009).
A defendant does not have the right to counsel at a pre-indictment line-up. Brown v. State, 160 Ga. App. 226 (1981).
If the judge finds that the procedure was impermissibly suggestive, the judge then considers whether there was a substantial likelihood that the suggestive procedure led to an improper identification. Willis v. State, 309 Ga. App. 414 (2011). It may be possible that the faulty procedure did not result in the identification. Factors to be considered by the judge in evaluating the likelihood of misidentification include: (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness' degree of attention, (3) the accuracy of the witness' prior description of the criminal, and (4) the level of certainty demonstrated by the witness at the time of the identification. Miller v. State, 266 Ga. App. 378 (2004).
A one on one show up identification occurs when the police bring a victim to the suspect for an identification. Often the suspect is in handcuffs or seated in a police car. A show-up identification has been held to be inherently suggestive, but is not necessarily inadmissible. Tucker v. State, 316 Ga. App 119 (2012); Butler v. Satte, 290 Ga. 412 (2012); Frazier v. State, 305 Ga. App. 274 (2010). The judge must 143still consider the other factors to determine if there was a substantial likelihood of misidentification. Flint v. State, 308 Ga. App. 532 (2011); Law v. State, 308 Ga. App. 76 (2011); Freeman v. State, 306 Ga. App. 783 (2010). Similarly, displaying a single photograph of the suspect to a witness is impermissibly suggestive. Leeks v. State, 309 Ga. App. 724 (2011); Wright v. State, 302 Ga. App. (2010). However, the single photo identification should be suppressed only if a substantial likelihood of misidentification exists. McBride v. State, 297 Ga. App. 421 (2009). The judge must consider the four factors in evaluating the likelihood of misidentification. Crawford v. State, 297 Ga. App. 187 (2009).
A detective's testimony is a sufficient basis for denying a motion to suppress identification. Gomez v. State, 305 Ga. App. 204 (2010). The denial of the motion can be proper even if the State did not present the testimony of the witness. Clark v. State, 279 Ga. 243 (2005). The fact that there are inconsistencies in the witness' description of the perpetrators does not make the identification inadmissible, but rather is a question of credibility for the jury at trial. Butler v. State, 290 Ga. 412 (2012).
Expert Witness On Identification
A defendant can file a motion to obtain funds for an expert on eyewitness identification. Admission of expert testimony regarding eyewitness identification is in the discretion of the judge. Johnson v. State, 272 Ga. 254 (2000). Where eyewitness identification of the defendant is a key element of the State's case and there is no substantial corroboration of that identification by other evidence, judges may not exclude expert testimony without carefully weighing whether the evidence would assist the jury in assessing the reliability of eyewitness testimony and whether expert eyewitness testimony is the only effective way to reveal any weakness in an identification. Cannon v. State, 310 Ga. App. 262 (2011). However, the admission or exclusion of this evidence lies within the sound discretion of the judge, whose decision will not be disturbed on appeal absent a clear abuse of discretion. Frazier v. State 305 Ga. App. 274 (2010); Howard v. State, 286 Ga. 222 (2009).