Argued January 28, 2014.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12 CR 32-1 - Rebecca R. Pallmeyer, Judge.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: Paul H. Tzur, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL.
For MASON M. JOHNSON, Defendant - Appellant: Beau B. Brindley, Attorney, LAW OFFICES OF BEAU B. BRINDLEY, Chicago, IL.
Before WOOD, Chief Judge, and EASTERBROOK and KANNE, Circuit Judges.
Easterbrook, Circuit Judge.
A jury convicted Mason Johnson of robbing three banks, and a judge sentenced him to 220 months' imprisonment. The principal testimony against him came from Joseph Prince, who told the jury that he and Johnson had planned and executed the robberies together. Johnson asked the jury to discount the testimony of Prince, a confessed criminal. The prosecutor sought to bolster Prince's testimony with that of Amanda Williams, who related that Prince asked her to give him a ride one day and was accompanied by a stranger when she picked him up. She drove her passengers to several places, last of all a grocery store. Prince and the stranger entered the store and robbed the branch bank it contained. Williams had not met the stranger before and did not know his name, but she picked a photo of Johnson from an array of six photos. Johnson's only appellate argument is that the judge should not have allowed Williams and the agent who conducted the array to testify about this identification.
Johnson observes that this court has suggested that police show photographs sequentially rather than as part of an array. See, e.g., United States v. Ford, 683 F.3d 761 (7th Cir. 2012); United States v. Brown, 471 F.3d 802 (7th Cir. 2006). Some research in psychology, which these opinions cite, concludes that a sequential display is preferable because it forces the witness to compare each photograph against memory, rather than one photograph against another, and it avoids the risk that a witness will conclude that the suspect's picture is bound to be among the six (or some) other number of photos in an array. Careful officers tell a witness that a photo spread does not necessarily include any suspect (that was done here), but witnesses still may suspect that it does or may proceed that way subconsciously,
because none of us is fully in control of the processes by which the brain makes identifications.
Some parts of Johnson's briefs imply that only a sequential presentation can lead to admissible evidence, but at oral argument his lawyer sensibly disclaimed any such proposal. The Supreme Court has not adopted a rule that only " the best" approach (as the latest social science research identifies the best current understanding) can be used. Instead, it has concluded, " [t]he Constitution... protects a defendant against a conviction based on evidence of questionable reliability, not by prohibiting introduction of the evidence, but by affording the defendant means to persuade the jury that the evidence should be discounted as unworthy of credit." Perry v. New Hampshire, 132 S.Ct. 716, 723, 181 L.Ed.2d 694 (2012). The due process clause of the fifth amendment does forbid the use of " an identification procedure that is both suggestive and unnecessary. [But e]ven when the police use such a procedure... suppression of the resulting identification is not the inevitable consequence." Id. at 724 (citations omitted). Suppression ensues only when there is " a very substantial likelihood of irreparable misidentification," Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) (emphasis added)--irreparable in the sense that the procedures of trial would not suffice to allow jurors to separate reliable from mistaken identifications.
Johnson has not attempted to show that all photo spreads are both unnecessary and suggestive, or that all identifications facilitated by a photo spread make it impossible for counsel to use the tools of the adversary process to explore an identification's reliability. Indeed, some recent research has called into question the view that sequential presentation of photographs is superior to photo spreads. David G. Dobolyi & Chad S. Dodson, Eyewitness Confidence in Simultaneous and Sequential Lineups: A Criterion Shift Account for Sequential Mistaken Identification Overconfidence, 19 J. Experimental Psychology: Applied 345 (2013), gives some reasons and cites other studies. The Supreme Court of New Jersey, which has gone further than any other appellate tribunal in controlling the methods of obtaining and presenting eyewitness identifications, has declined to require sequential methods exclusively. See State v. Henderson, 208 N.J. 208, 256-58, 27 A.3d 872 (2011). The Supreme Court's approach, which Perry summarizes, precludes a federal court of appeals from requiring them.
We therefore ask whether the district judge erred in concluding that the photo array was not unnecessarily suggestive--a subject that a court of appeals resolves independently, " but with due deference to the trial court's findings of historical fact." United States v. Harris, 281 F.3d 667, 670-71 (7th Cir. 2002). After finding the array not suggestive, the judge stopped the analysis, for she did not need to consider other questions, such as whether Williams had viewed Johnson long enough to provide a solid basis for memory ...