In United States v. Baker, 70 M.J. 283 (C.A.A.F. 2011) the issue before the CAAF was whether the Army Court of Criminal Appeals erred (1) in finding that the military judge's suppression of the identification evidence was an abuse of discretion, and (2) in holding that the pretrial identification procedures were reliable under the circumstances where the Army court made impermissible findings of fact under Article 62 and relied on such findings in overruling the military judge.
The court heard this case on Appellant's petition for review after the Army Court of Criminal Appeals granted the government's motion to vacate the trial court's ruling to suppress a show-up photo eyewitness identification made at the police station and a subsequent identification made during a motions hearing. (United States v. Baker, 2011 WL 891345 (A.C.C.A. 7 March 2011)).
While walking on a trial in Reinheim, Germany, KTB came across a man riding a bicycle. She usually wears prescription contacts but was not wearing them at the time. Without her contacts she can only see two to three meters in front of her. As she entered the trail she saw a bicycle rider and noticed he was black, wore bicycle clothes, a helmet, and sunglasses. She saw this rider again and he had dismounted his bicycle and was turned away from her in a kneeling position. When she was about 7 to 8 meters from the bicycle rider, he turned towards her and then mounted his bike and rode away. Sometime later she saw him again. This time he had his back to her and was again dismounted from his bicycle. KTB said she thought he was urinating. When she was between 5 and 7 meters from him he looked back towards her. The final time she saw the bicycle rider, he was dismounted, with his back towards her and only about two feet away. He turned and ran towards her with his penis in his and blocked her from getting around him. She was frightened and trying to move left and might to escape. The man grabbed her shit and said what she thought was "get undressed." She pushed him away and fled. After calling police and giving a description of a muscular black man, 1.75 meters tall, wearing bicycle clothes, a helmet and sunglasses, police arrested the appellant. KTB came to the police station an hour and half later after being told they had someone she should look at. When she arrived she was told they photos of the suspect and asked her to provide a description. She gave the same description as earlier but added that he had a gap in his teeth and spoke English. They then showed her one photo on a digital camera of SSG Baker without his helmet and sunglasses. KTB identified the man on the camera as her assailant. After viewing this picture she said he also had a mustache and the officer zoomed the camera in on SSG Baker's face to reveal stubble. She later identified him during a motions hearing saying she was 100% sure.
The CAAF held that the military trial judge did not abuse his discretion when he found the show-up identification unnecessarily suggestive1 under Neil v. Biggers, 409 U.S. 188 (1973) and his application of the law was not clearly erroneous. Further, the intermediate court based its ruling on impermissible findings of fact.
Because this is an Article 62 appeal, the evidence is viewed in the light most favorable to the prevailing party—Baker. The test in Neil v. Biggers uses five factors, "the opportunity of the witness to view the Criminal at the time of the crime; the witness' degree of attention; the accuracy of the witness prior description of the Criminal; the level of certainty demonstrated by the witness at the confrontation; and the length of time between the crime and the confrontation." Biggers, 409 U.S. at 199-200. The court pointed out that show-up identifications with one person are widely condemned because they are inherently suggestive, as if the police are suggesting that this is the person. Biggers v. Tennessee>390 U.S. 404, 407 (1968). The court found the judge correctly determined that the suggestive show-up created a substantial likelihood of misidentification.