United States District Court, District of Columbia
SEGAL HUVELLE United States District Judge.
nine-count indictment charges defendant Morgan with failure
to register as a sex offender, in violation of 18 U.S.C.
§ 2250(a) (Count One); kidnapping, in violation of 18
U.S.C. § 1201(a)(1), (g) (Count Two); transportation of
a minor with intent to engage in criminal sexual activity, in
violation of 18 U.S.C. § 2423(a) (Count Five); attempted
production of child pornography, in violation of 18 U.S.C.
§ 2251(a), (e) (Count Eight); three counts of commission
of a felony offense by an individual required to register as
a sex offender, in violation of 18 U.S.C. § 2260A
(Counts Three, Six, and Nine); and two counts of commission
of a crime of violence while failing to register as a sex
offender, in violation of § 2250(d) (Counts Four and
Seven). Defendant has moved to preclude the
government from asking the victim to make an in-court
identification, because she was unable to identify him in a
photo array shortly after the incident. (Def.'s Mot.
Preclude In-Court Identification of Def. Morgan at 1, ECF No.
20.) Because the Court concludes that an in-court
identification by the victim would be sufficiently reliable
for admission, it will deny defendant's motion.
to the government, the evidence at trial will show the
following facts relevant to this motion: Defendant approached
J.T., a fifteen-year-old minor female, in his car at
approximately 11:30 p.m. on May 22, 2016. (Gov.'s Opp. at
1, ECF No. 27.) He asked her if she needed a ride and gave
her his business card, and she got into the car.
(Id.) He stopped the car on the side of a road and
sexually assaulted J.T. in the car. (Id. at 2.)
Thereafter, he took her to his house, where he assaulted her
again. (Id.) Afterward, he gave her a piece of paper
with his telephone number and the name “Mr. C” on
it, told her to text him when she got home, and warned her
not to tell anyone about what he had done. (Id.)
reported the assault to her mother, who contacted 911.
(Id.) On May 24, 2016, a member of the Prince
George's County Police Department presented J.T. with a
six-person consecutive photo array containing six colored,
photocopied images of African-American men of similar ages
and characteristics. (Id. at 2-3.) The array
included a fuzzy image of defendant, but J.T. was unable to
identify anyone in the photo array as the man who had
assaulted her. (Id.; Prince George's County
Police Dep't Sexual Assault Unit Photo Viewing Sheet,
Attachment to Def.'s Reply, ECF No. 35-1.)
contends that the prosecution should not be permitted to ask
the victim to identify her assailant at trial, where
defendant will be the only African-American man at counsel
table, because the victim's inability to identify
defendant in the photo array shortly after the incident makes
any in-court identification unreliable. (Def.'s Mot. at
2-3). Defendant does not dispute “the prolonged nature
and close proximity of the interaction, ” but he argues
“[i]t is that very fact that renders the in court
identification suspect because it highlights her failure to
identify him immediately after the incident . . . .”
(Def.'s Reply at 1-2, ECF No. 35.)
evaluate whether the Due Process Clause bars admission of
identification evidence, courts use a two-pronged test.
United States v. Rattler, 475 F.3d 408, 411 (D.C.
Cir. 2007). “A court must determine first, whether the
identification procedure ‘was impermissibly
suggestive.'” Id. (quoting United
States v. Washington, 12 F.3d 1128, 1134 (D.C. Cir.
1994)). “[I]f so, [it must determine] second, whether,
under the totality of the circumstances, the identification
was sufficiently reliable to preclude ‘a very
substantial likelihood of irreparable
misidentification.'” Id. (quoting
Manson v. Brathwaite, 432 U.S. 98, 116 (1977)).
Although the Supreme Court and the D.C. Circuit have
developed this test in the context of out-of-court
identification procedures, most federal courts have applied
the same test to initial in-court identifications (i.e.,
identifications that are made for the first time in court).
See, e.g., Lee v. Foster, 750 F.3d 687,
691-92 (7th Cir. 2014); United States v. Greene, 704
F.3d 298, 305-10 (4th Cir. 2013); Kennaugh v.
Miller, 289 F.3d 36, 45-48 (2d Cir. 2002); United
States v. Rogers, 126 F.3d 655, 658-59 (5th Cir. 1997);
United States v. Hill, 967 F.2d 226, 232 (6th Cir.
1992); but see United States v. Domina, 784 F.2d
1361, 1367-69 (9th Cir. 1986) (distinguishing in-court
identifications from pretrial ones because the jury can
observe the witness, but still acknowledging that an in-court
identification could be so unnecessarily suggestive as to
violate due process). As the Sixth Circuit explained,
“any attempt to draw a line based on the time the
allegedly suggestive identification technique takes place
seems arbitrary. All of the concerns . . ., including the
degree of suggestiveness, the chance of mistake, and the
threat to due process are no less applicable when the
identification takes place for the first time at
trial.” Hill, 967 F.2d at 232.
“impermissibly suggestive” prong of the test
comes from a line of Supreme Court precedent including
Neil v. Biggers, 409 U.S. 188, 198-99 (1972), in
which the Court held that “unnecessary
suggestiveness” did not automatically require exclusion
of identification evidence but required an evaluation of
whether “the identification was reliable even though
the confrontation procedure was suggestive.” In a
recent opinion addressing out-of-court identifications, the
Court clarified that “the Due Process Clause does not
require a preliminary judicial inquiry into the reliability
of an eyewitness identification when the identification was
not procured under unnecessarily suggestive circumstances
arranged by law enforcement.” Perry v. New
Hampshire, 565 U.S. 228, 248 (2012). Since the jury is
ordinarily the arbiter of reliability, the purpose of
requiring a judicial reliability analysis for certain
identifications is to discourage improper law enforcement
conduct. Id. at 237, 241-42. Furthermore, the Court
expressed concern that requiring evaluations of reliability
whenever an identification is suggestive would “involve
trial courts, routinely, in preliminary examinations”
because “[m]ost eyewitness identifications involve some
element of suggestion. Indeed, all in-court identifications
do.” Id. at 244. Thus, the Court concluded
that a reliability screen is necessary only when an
identification has “the taint of improper state
conduct.” Id. at 245. To find an
identification procedure impermissibly suggestive after
Perry, a court must determine that it is (1)
suggestive, (2) unnecessary, and (3) arranged by law
courts have split as to whether it is impermissibly
suggestive for a witness to make an in-court identification
when it is obvious which person is the defendant. The Second
Circuit has held that it is “obviously suggestive to
witnesses asked to make in-court identifications” that
“the defendant here was seated next to defense counsel,
” so “[a]ny witness . . . can determine which of
the individuals in the courtroom is the defendant.”
United States v. Archibald, 734 F.2d 938, 941-43 (2d
Cir. 1984), modified by United States v. Archibald,
756 F.2d 223, 223 (2d Cir. 1984) (noting that defendants
wishing to take advantage of its ruling must “move in
a timely manner prior to trial for a lineup”).
Likewise, the Fifth Circuit has concluded that “it is
obviously suggestive to ask a witness to identify a
perpetrator in the courtroom when it is clear who is the
defendant.” Rogers, 126 F.3d at 658. The Third
Circuit reached the same conclusion under more egregious
circumstances, where U.S. marshals walked a defendant in
shackles before the key identification witnesses, who then
discussed the fact that it must be the defendant. United
States v. Emanuele, 51 F.3d 1123, 1128-30 (3d Cir.
1995). Because these cases pre-dated Perry, none of
them discussed its applicability.
Perry, several circuit courts have decided that it
is not impermissibly suggestive to obtain in-court
identifications when it is obvious which person is the
defendant. Relying on Perry, the Tenth and Eleventh
Circuits both concluded that in-court identifications of the
defendants, in each case the only African-American man at
counsel table, did not warrant judicial reliability
assessments because they were not the product of improper
conduct by law enforcement. United States v. Thomas,
849 F.3d 906, 910-11 (10th Cir. 2017); United States v.
Whatley, 719 F.3d 1206, 1216 (11th Cir. 2013). In an
unpublished opinion, the Sixth Circuit similarly relied on
Perry to conclude that the in-court identification
of the defendant, the only African-American male in the
courtroom, was not impermissibly suggestive because
“the Supreme Court has recently made clear that due
process rights of defendants identified in the courtroom
under suggestive circumstances are generally met through the
ordinary protections in trial.” United States v.
Hughes, 562 Fed.App'x 393, 398 (6th Cir. 2014). The
First Circuit found no need to decide whether Perry
applied to in-court identifications, because it would admit
the identification either way: under Perry, there
was no due process problem because “the government did
not put [the defendant]” at counsel table, and without
Perry, there was still no undue suggestiveness
because the identification procedure was not particularly
suggestive compared to other in-court identifications.
United States v. Correa-Osorio, 784 F.3d 11, 19-22
(1st Cir. 2015). However, the court noted as an example that
“[a]n in-court identification may be unduly suggestive
. . . if the defendant looked different from others in the
courtroom or at counsel table . . . (say, by being the only
black person present), ” id. at 21, so it
might reach a different result on Morgan's motion.
Without discussing Perry's ruling about the role
of law enforcement, the Seventh Circuit found that an
in-court identification of the defendant was not
impermissibly suggestive because it was “neither
suggestive nor unnecessary, ” although its explanation
related more to reliability than to suggestiveness.
Lee, 750 F.3d at 691-92.
Court agrees with the Second, Third, and Fifth Circuits that
it is suggestive to ask a witness to identify the perpetrator
of the charged crime when it is obvious to that witness which
person is on trial for committing that crime. Here, there
will be no doubt that the African-American man seated at
counsel table is being prosecuted for crimes against J.T.
Furthermore, it is unnecessary for the prosecution to ...