At the core of the United States Constitution is the principle of Due Process.  In its most basic form, this principle provides that the government must respect all of the legal rights owed to the people. One of those legal rights is the guarantee of a fair trial to a person accused of a crime.A fair trial includes preventing the State from unfair or suggestive identifications which would direct a witness to make a false identification. The most common situation where these protections are needed is a “line-up.”  This is a procedure where a witness tries to identify someone that may have committed a crime.

In State v. Garcia, a man appealed his armed robbery and murder convictions based on a flier containing a photograph. Here, when police arrived on scene, a witness provided a detailed description of the first man to walk into the bar. A few days later, the police showed the same witness a photographic line-up.  Garcia’s picture was included in a group of photos.  The witness failed to identify Garcia in the picture line-up.

Television stations were later given pictures from a security camera to help find the suspects.  It appears the pictures may have been provided by the police.  Subsequently, the police contacted the witness that failed to identify Garcia in the photographic line-up (and other witnesses); and told them not to watch any news broadcasts or any other coverage regarding the shooting.

However, despite the warning, the witness that previously failed to identify Garcia saw a “reward flier” containing the picture released by law enforcement. A key fact (for the court) was the reward fliers were not made, or passed out by the police.  Later, Garcia’s attorneys argued this identification was unfairly suggestive.  A motion to exclude the identification by witness was made.  The trial court denied the motion.

The Arizona Supreme Court held that because the flier was not made or authorized by the police, it did not fall within the protections of the Due Process Clause.  They reasoned there was no state interference of the witness and Due Process protection only forbids the State from causing this type of tainted identification.

It appears the court believed that releasing the photo was not enough state action to violate Garcia’s Due Process rights. Perhaps, if the defense was able to identify the creator of the flier, the result may be different.  What if the person was part of a silent witness program or some other quasi-government program?  Moreover, the opinion plainly states the defense did not admit a copy of the flier into evidence.  Could the contents of the flier have supplied some evidence of state action?

In sum, the behavior that taints the identification needs a closer connection (at least in Arizona) to state action, in order to be rise to the level of a Due Process violation.  Moreover, while the Court permitted the witness to testify about his identification, the defense still has the right to cross-examine the witness as to suggestive circumstances of the identification.

If you have questions regarding a specific legal issue please contact The Koplow Law Firm.

Lawrence Koplow