What is an “unduly suggestive” procedure in a criminal lineup?

According to the Constitution, it is a violation of Due Process if it is “unduly suggestive.” Examples of “unduly suggestive” can include things like being the only person of a certain race in a lineup, or being the only person who matches the suspect’s description. The Massachusetts Appellate Court recently decided a case that examined this issue in Commonwealth v. Travis.

What happened in the Travis case?

In October of 2018, Brenda Marquez and Nilza Santos were inquiring about a cleaning job. Santos was in her car, and Marquez was speaking through the window. The defendant then approached Marquez from behind, and pointed a gun at the women and told her to “get out” The defendant then got in the car and drove away. Marquez called 911 as soon as the defendant drove away. While she was on the phone, officers arrived and Marquez gave the officer a physical description of the assailant and described the clothes that he was wearing and the officer transmitted this over the radio. The police chased him and the crash followed. The defendant attempted to run but was then apprehended.

The women were called to the scene and immediately recognized the defendant. He was in handcuffs but the women did not see the handcuffs.

The defendant claimed that the show up was unnecessary because the police knew that they had arrested the right person and that less suggestive alternative identification procedures were available. Next, he argued the procedures utilized by the police were unnecessarily suggestive because the victims were told that they were being taken to view the suspect when they did not fully understand the advisements, the defendant was surrounded by police officers and numerous police cars and safety vehicles were present, and Santos’s damaged car was in plain view. The trial court concluded that all of these factors taken together added to the inherent successiveness, and the identification was suppressed.

The defendant was charged with armed assault and carjacking. The victims were two women, both of whom identified the defendant as the perpetrator during a one-on-one show up identification procedures. The defendant crashed his car after the incident, and the show up was conducted at the scene of the accident while the defendant was receiving medical treatment.

The Massachusetts Appellate Court held that although the identification procedure had some elements of suggestiveness, they were not so unnecessarily or impermissibly suggestive such that their admission at trial would deprive the defendant of his right to due process. The Court reversed the decision of the trial court.

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