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When Is a Photo Array Identification Inadmissible in a Criminal Trial?


Police lineups and photo arrays are familiar to anyone who has ever watched a television crime drama. But how credible are eyewitness identifications of this sort in real life? And what if a witness initially identifies someone but later hesitates or walks back their answer?

Md. Court of Appeals Reverses Armed Robbery Conviction Based on “Hearsay” Identification

The Maryland Court of Appeals recently reversed a criminal conviction after holding the trial judge improperly allowed a photo array identification into evidence. This particular case, Traynham v. State, involved a Baltimore woman who was robbed at gunpoint. According to the evidence introduced at trial, the woman had just parked her car in front of her house when “a man approached her asking for directions.” The man quickly grabbed the woman and put a gun to her before grabbing her bags and running away.

The woman later told a Baltimore police officer that her attacker was a “black male with a bushy beard, approximately 5’10” to 5’11” in height, small to medium build wearing a black cap and all black clothing.“

About ten days after the robbery, police asked the woman to look through a photo array, which included a picture of the defendant in this case. The woman reviewed the photo array twice. On the first viewing, she commented ”[b]eard yes” after seeing the defendant’s photograph. However, on the second viewing she replied, “[d]on’t think so–not skinny enough” in response to the same photo.

Nevertheless, the police took the woman’s statements as a positive identification and proceeded to arrest the defendant. At trial, prosecutors admitted the photo array into evidence over the defense’s objections. The woman testified that she had chosen the defendant’s photo during the first viewing of the array.

The jury subsequently convicted the defendant of armed robbery and several related charges. Before the Court of Appeals, the defendant argued the conviction was improper because the photo array–and the woman’s testimony regarding it–constituted inadmissible hearsay. The Court of Appeals agreed and said the defendant was entitled to a new trial.

As the Court of Appeals explained, hearsay is normally inadmissible in a criminal trial unless one or more specific exceptions apply. One such exception is for a “statement of identification.” That is to say, a witness can testify at trial as to their own prior statements “of identification of a person made after perceiving the person.”

An identification from a police photo array can qualify for this exception. But the problem here, the Court of Appeals said, was that the witness never made a clear identification in the first place. Indeed, the police failed to follow-up when the witness equivocated on her second viewing of the photo array and simply took the first “identification” as conclusive. This was a mistake, the appeals court said, and it effectively deprived the defendant of his right to a fair trial.

Speak with a Maryland Criminal Defense Lawyer Today

In any criminal prosecution, the defendant has the right to confront the evidence against them and challenge any statement or testimony that may be inadmissible under the law. A qualified Maryland criminal defense attorney can help you in asserting these rights. If you have been charged with a crime and need legal representation, contact Henault & Sysko, Chartered, at 410-768-9300 today.


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