Criminal Law: Photographic Identification Not Impermissibly Suggestive

Petitioner, who was convicted of murdering his ex-wife and dismembering her body, sought habeas corpus relief on the grounds that the in-court identification of him by a witness was tainted by a prior photographic identification in violation of his constitutional rights. The district court denied the petition, finding that the pretrial photographic identification was not "impermissibly suggestive." The court applied a factor analysis including: (i) the opportunity of the witness to view the criminal at the time of the crime; (ii) the witness' degree of attention; (iii) the accuracy of the witness' prior description of the criminal; (iv) the level of certainty demonstrated by the witness at the confrontation; and (v) the length of time between the crime and the confrontation. In applying these factors, the court found that there was no "substantial likelihood of irreparable misidentification." The witness was only twelve feet away from the abduction of the victim; he was "100% sure" of his identification; he had seen the ex-wife previously; he viewed the abduction scene for 20 to 40 seconds; he had described Petitioner accurately before being shown his photograph; only two weeks had elapsed between the crime and the photo identification.

Kado v Adams, Civ No. 96-CV-40449 FL, ED Mich., 8/6/97, Gadola, J. (dkt #48 – 12 pages) This article was written by Mark A. Goldsmith, a partner in our Litigation Department, and previously appeared in the October 1997 edition of the Michigan Bar Journal.