Beware the suggestiveness of show-up  identification and in-court ID

Photo and in-person lineups can be unduly suggestive identification procedures depending on the content and context of the lineup, and the words, body language, facial expressions and tone of voice of the police officer conducting the lineup. Clearly suggestive is when a witness in the courtroom is asked if they see the alleged perpetrator in the courtroom, and where the only likely choice is to select the defendant sitting next to his or her criminal defense lawyer or else to say that the perpetrator is not seen there. Often even more suggestive is when a police officer brings the witness to the alleged perpetrator or vice versa and asks if that is the perpetrator. The Virginia Court of Appeals has declined to invalidate such show-up ID procedures as any matter of right, and not even close to that. Zymeire Jaquante Rogers v. Commonwealth of Virginia, Record No. 0462-24-1 (Va. App. 2025) (unpublished).

When police find two people in a license plate-identified alleged getaway car, expect an uphill battle to invalidate a police show-up ID procedure

In Rogers, a man arranged on social media to purchase a PlayStation 5, only for one of the two purported sellers (the driver) to ask to see the money for the product, and soon after place a handgun against the buyer’s body and was going to “count to three and was ‘going to need you to give me all the money you have.'” (As an aside, it is rarely worth engaging in such a transaction rather than buying an item of that price range from a clearly legitimate source.) The victim reported the vehicle description and license plate number to law enforcement. Before the show-up ID procedure, the victim provided a physical description of the suspect driver and passenger. The police first brought out the passenger, in handcuffs, whom the victim could not ID. The police then brought out the driver, in handcuffs, and the victim said “’Yes, yes. 100% positive.’” The victim asked to see the car in which the driver was found, was shown the car, and then said “’Yes. One million percent,” where being more than 100 percent positive is a mathematical impossibility. Rogers. In okaying this show-up ID, Rogers favorably quoted its opinion in Scott v. Commonwealth of Virginia, 68 Va. App. 452 (2018): “‘[B]ringing a witness to view a suspect for immediate identification
“fosters the desirable objectives of fresh, accurate [ID] which in some instances may lead to the immediate release of an innocent suspect and at the same time enable the police to resume the search for the fleeing culprit while the trail is still fresh.”‘” Rogers. (And how often do show-up ID’s result in the release of the suspect, and no subsequent prosecution?). .