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Each case must be considered on its own facts and convictions based on eye witness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.
At trial, the witness testified that all she saw of the robber was his black hair and "puffy" cheeks. The witness also looked at the photo array for approximately one minute before selecting the defendant’s picture. Defendant was convicted of second degree kidnapping, aggravated robbery, conspiracy to commit aggravated robbery, and second degree assault. The court of appeals affirmed his conviction.
Was the defendant’s due process right to a fair trial violated?
The State Supreme Court concluded that the photo array was impermissibly suggestive. It remanded the case to the trial court and directed to inquire as to what the witnesses meant when they used the term "Hispanic" to describe the robber and whether they would describe any of the other five men depicted in the photo array as "Hispanic."