State v. Greene

Moylan, J. A flurry of intense Supreme Court activity in the decade from June of 1967 through June of 1977 produced a weighty body of criminal-constitutional law that has generally been referred to simply as "identification law." The thrust of this opinion is that, notwithstanding that impressive body of constitutional doctrine, every time that the word "identification" is used in a case or an issue involving identification somehow arises in a case is not necessarily the occasion to invoke constitutional identification law. The mere word "identification" need not set off the constitutional fire bell. Just as there have been, since 1967, numerous constitutional issues involving identification law, there always have been and will continue to be numerous non-constitutional issues that may, coincidentally, involve the subject of identification. As will be more fully discussed infra , there may be, for instance, a constitutional chasm of difference between what we will call selective identification issues and other merely confirmatory identification issues.

We need to look at identification issues more closely before invoking the constitution. The Charge The appellee, Daniel Joseph Greene, was indicted on December 28, 2017, in the Circuit Court for Baltimore City, for the first-degree murder of Jon Hickey. The appellee moved pre-trial to suppress both an out-of-court and an in-court identification of him by Jennifer McKay as the man depicted in a surveillance video tape. Following a hearing on August 20, 2018, the suppression hearing judge granted the appellee's motion.

Appropriately, the State filed an appeal. The State Appeal The State filed its appeal on August 20, 2018. The appeal is authorized by Maryland Code, Courts and Judicial Proceedings Article, Section 12-302(c)(4). Pertinent are subsections (c)(4)(iii) and (iv): (iii) Before taking the appeal, the State shall certify to the court that the appeal is not taken for purposes of delay and that the evidence excluded or the property required to be returned is substantial proof of a material fact in the proceeding.

The appeal shall be heard and the decision rendered within 120 days of the time that the record on appeal is filed in the appellate court . Otherwise, the decision of the trial court shall be final. (iv) Except in a homicide case, if the State appeals on the basis of this paragraph, and if on final appeal the decision of the trial court is affirmed, the charges against the defendant shall be dismissed in the case from which the appeal was taken. In that case, the State may not prosecute the defendant on those specific charges or on any other related charges arising out of the same incident.

(Emphasis supplied). The record was filed with this Court on October 23, 2018. Accordingly, our decision must be rendered no later than February 20, 2019. We heard oral argument on January 7, 2019.

A Suppression Motion Based On Identification Law As part of an omnibus ten-pronged pre-trial motion pursuant to Maryland Rule of Procedure 4-252, the appellee moved for the suppression of both an out-of-court identification and an in-court identification of the appellee. The grounds asserted were that the identifying witness, Jennifer McKay, had been subjected to impermissibly suggestive procedures pursuant to Stovall v. Denno , 388 U.S. 293 , 87 S.Ct. 1967 , 18 L.Ed.2d 1199 (1967), and its progeny in the course of the identification procedure. Sections 5 and 6 of the omnibus motion claimed: 5. That any identification of the Defendant made at a pre-trial identification procedure be suppressed as having been obtained by an impermissibly suggestive process , and in violation otherwise, of this Defendant's Constitutional or other legal rights. 6.

That the in-court identification of this Defendant be suppressed as the product of a pre-trial identification process which was impermissibly suggestive , or which otherwise violates the Constitutional and other legal rights of the Defendant. (Emphasis supplied). After the appellee chose constitutional identification law as the suppression hearing battleground, everyone else followed suit. There were, to be sure, enough surface similarities to familiar identification law to make that an easy mindset into which to fall.

The challenge based on identification law was the sole focus of the suppression ruling and that is the only issue brought before us on this State appeal. The Wrong Pew In The Wrong Church Although we have elected to consider, purely arguendo , constitutional identification law as an alternative holding, our basic feeling is that this case is, quite to the contrary, not a case involving familiar constitutional identification law at all. The facts are unusual. The victim, Jon Hickey, was murdered in his Fells Point apartment in the early morning hours of November 29, 2017.

Several days after the murder, the police recovered a surveillance video from the house next door to Jon Hickey's apartment. It apparently showed a figure attempting to enter the Hickey apartment. The police believed that that unknown figure may have been the murderer. Accordingly, Jennifer McKay was asked to come to the police station to see if she could identify the figure on the video cam recording.

She readily assented. As of the time of the murder, Jennifer McKay had been involved in an intimate romantic relationship with Jon Hickey for several months. Prior to that, Jennifer McKay had been involved in an intimate relationship with the appellee for five years. She and the appellee, moreover, had known each other well since childhood.

A strong theory as to murderous motive was the appellee's jealousy at having been replaced by Jon Hickey. At the police station, Jennifer McKay was shown the relatively brief footage recorded by the video cam. It was not in evidence. The police interview with Jennifer McKay, however, was recorded and later transcribed.

It was the police behavior during that interview that was the exclusive focus of the suppression hearing. There Was No Selective Process In Play Over the decades, it has been recognized that the very purpose of constitutional identification law has been to guarantee the reliability of the selection process. Whenever a witness is asked to select the wrongdoer from a line-up of suspects, to select a photograph of the wrongdoer from a photographic array, or otherwise to select the wrongdoer from a larger group, the law's concern is that the selection process be untainted by the police slipping the answer, by word or by more subtle behavior, to the witness. In this case, by contrast, there was no selection process in play.

Jennifer McKay was not asked to look at three separate video cam tapes and to select the one with the appellee in it. Jennifer McKay was asked simply to confirm, if she could, that the man on the surveillance tape was the appellee, Daniel Greene. Jennifer McKay's knowledge of the appellee's appearance was absolute, beyond any peradventure of a doubt. All that Jennifer McKay was asked to do could as readily have been asked of the appellee's mother or of his best friend or of his probation officer.

The difficult question in this case involved not Jennifer McKay's ability to identify the appellee but rather the quality of the picture or tape she was being asked to review. Was it a good picture or was it an essentially unrecognizable picture? How far away was the subject from the camera? Was the scene well-lit or dark?

Did the subject ever turn and look at the camera? Did the camera have any adverse impact on color? She was not looking at high school yearbook photos but at possibly blurred and ambiguous images. The Reliability Factors Are Totally Inapplicable Since Simmons v. United States , 390 U.S. 377 , 88 S.Ct. 967 , 19 L.Ed.2d 1247 (1968), impermissible suggestiveness is nothing more than a threshold question.

The primary concern is with ultimate reliability. Our focus is now on the reliability factors articulated by Neil v. Biggers , 409 U.S. 188 , 93 S.Ct. 375 , 34 L.Ed.2d 401 (1972), and Manson v. Brathwaite , 432 U.S. 98 , 97 S.Ct. 2243 , 53 L.Ed.2d 140 (1977). In the present day, almost the entire attention of constitutional identification law is on these reliability factors. In the case before us, however, those reliability factors are utterly irrelevant.

Classic identification law is simply inapplicable. How then do we apply the heart of identification law if the heart of identification law is irrelevant? "I Think So" Versus "I Know So" If this case is not about identification law, what then is it about? A fair reading of the suppression hearing transcript and a fair reading of the transcript of the police interview of Jennifer McKay reveal clearly that what really concerned the appellee and defense counsel and the suppression hearing judge was a discernible effort by the police to coach the witness.

Any suggestiveness, however, concerned not whom Jennifer McKay would select. There was no selective identification. It concerned how forcefully or persuasively Jennifer McKay would testify. The police wanted to prime her to be a more effective witness.

The police interview of Jennifer McKay was fundamentally friendly and amicable at all times. The exchanges were relaxed and pleasant. Jennifer McKay, moreover, was not ultimately affected by any police suggestiveness. She identified the appellee as the man on the video cam tape at the very outset of her interview.

She identified him in almost precisely the same terms at the very end of the interview. In response to the very first police question, Jennifer McKay responded: DET. O'CONNOR: Does he look like anybody? MS.

MCKAY: It looks like Dan. DET. O'CONNOR: Why does it look like Dan? MS.

MCKAY: The beard. DET. O'CONNOR: Anything else? MS.

MCKAY: The build. DET. O'CONNOR: Okay. (Emphasis supplied).

There was obvious difficulty with the quality of the tape, particularly with the effect that "night vision" had on color. DET. O'CONNOR: Take a look at them. MS.

MCKAY: It kind of looks like him. DET. VAUGHN: Just remember the night vision is there. DET.

O'CONNOR: So, the colors are the things you're looking at aren't really the same. MS. MCKAY: What they are, right, right. So what color would that jacket be?

DET. O'CONNOR: I don't know. MS. MCKAY: Okay.

(Emphasis supplied). At another point, another detective showed her a photographic array. DET. VODERK: All right.

Do you recognize anyone? MS. MCKAY: Yes. DET.

VODERK: What number was the person you recognized? MS. MCKAY: Number four I believe. The top one.

DET. VODERK: Okay. Who is that person? MS.

MCKAY: Daniel Greene. DET. VODERK: Okay. And how do you know Daniel Greene?

MS. MCKAY: He's my ex-boyfriend. (Emphasis supplied). The pictures she viewed convinced Jennifer McKay that the appellee had killed Jon Hickey.

DET. O'CONNOR: .... [W]hat do you think happened to Jon? MS. MCKAY: Someone killed him.

DET. O'CONNOR: Someone? MS. MCKAY: Dan did.

DET. O'CONNOR: Why do you say that? MS. MCKAY: Pictures.

(Emphasis supplied). At the end of the interview, her position was unchanged. DET. VAUGHN: When you look at those pictures, I know you said that it looks like Dan.

Is that Dan on those pictures? MS. MCKAY: ( Affirmative nod ). DET.

VAUGHN: You're shaking your head. MS. MCKAY: Yeah. (Emphasis supplied).

Any problem the police had was exclusively with Jennifer McKay's degree of certainty. Her answers were consistently and invariably "I think so" rather than the prosecutorial desideratum "I know so." At one point she explained that her answer meant that it "looks more like him than it doesn't look like him." MS. MCKAY: It looks very much like him. But I mean, I can see small differences.

Like that, the face frame. But (inaudible) looks more like him than it doesn't look like him. DET. O'CONNOR: Okay.

(Emphasis supplied). She is not being uncertain about Daniel Greene. What was uncertain was the quality of the surveillance footage. When the police tried to urge her to be more sure, Jennifer McKay remained adamant that "this looks like him." DET.

O'CONNOR: But you need to -- we need to know if that's him or not. And then we can do our own follow ups from there. But -- MS. MCKAY: I mean, from these pictures, yes, I would say this looks like him.

(Emphasis supplied). When the police explained that "I think" or "I don't know" is not the response they want, Jennifer McKay would not budge. DET. O'CONNOR: That's one thing, we just can't have the "I think" or "I don't know." That is what it is right there in front of you.

MS. MCKAY: Right. DET. O'CONNOR: And nobody's telling you to say one way or the other.

MS. MCKAY: Right. DET. O'CONNOR: We just need to know.

MS. MCKAY: No, it looks like him . (Emphasis supplied). In terms of her modest or relative level of certainty, Jennifer McKay did not yield to police suggestiveness but maintained her position consistently.

Once again, however, any equivocation was based, almost certainly, on the poor quality of the video cam tape. "I Think So": Good, Relevant Evidence Maryland Rule 5-401 provides: "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Maryland Rule 5-402 then provides: Except as otherwise provided by constitutions, statutes, or these rules, or by decisional law not inconsistent with these rules, all relevant evidence is admissible. Evidence that is not relevant is not admissible.

Thus, "I think that is Dan Greene" is just as relevant as "I know that is Dan Greene." Not as weighty, but just as relevant. Certainly weightier than "I have no idea." "I think so" will take a close case to the jury, whereas "I have no idea" will not. See Fenner v. State , 381 Md. 1 , 846 A.2d 1020 (2004). What is the percentage of certainty, moreover, that permits a witness to graduate from "I think" to "I know"?

Is that percentage higher for scientists and academics than it is among laymen? Is it higher for timid souls than it is for more assertive types? Is Albert Einstein's "I think so" less weighty than a blowhard's "I know so"? One inevitably thinks of British historian and philosopher Thomas Babington Macaulay, who was referred to by fellow historian George Trevelyan, "I wish I could be as certain about anything as Tom Macaulay is about everything." Assertiveness may be as much about personality as it is about actual certainty.

Coaching A Witness Improperly or excessively coaching a witness could be, of course, with respect to any subject. The problem of coaching a witness is not one associated with identification law particularly. One could as readily be coached about testifying with greater certainty as to how much money was actually taken from the cash register or how provocative the threatening gesture actually was before one struck in self-defense. In the last analysis, any police behavior found to have been offending in this case unquestionably would have been the effort to encourage or cajole Jennifer McKay to testify with a greater degree of certainty.

Offensive as that effort may have been, moreover, it had no apparent effect. All of which is to say, this is not a classic selective identification case. A Confirmatory Identification The problem is that of recognizing those sets of circumstances where suggestiveness is simply not a pertinent factor. The preceding concatenation of distinguishing circumstances would be a lot easier to handle if we had the benefit of a convenient shorthand reference or tag.

The New York Court of Appeals has supplied that need to a fare-thee-well with the term "confirmatory identification." Distinguishing the selective identification from the confirmatory identification, it makes, for present purposes, the invaluable point that all identifications do not implicate the same juridical baggage. People v. Rodriguez , 79 N.Y.2d 445 , 583 N.Y.S.2d 814 , 593 N.E.2d 268 (1992), was a case in which the suspect and the identifying witness were, as in the case at hand, well acquainted with each other. In such cases, suggestiveness is not a concern. "In cases in which the defendant's identity is not in issue, or those in which the protagonists are known to one another, 'suggestiveness' is not a concern and, hence, [ CPL 710.30 ] does not come into play." 583 N.Y.S.2d 814 , 593 N.E.2d at 271 (emphasis in original; citations omitted).

The degree of closeness of the prior relationship is the controlling factor. [W]hether the exception applies depends on the extent of the prior relationship, which is necessarily a question of degree. 583 N.Y.S.2d 814 , 593 N.E.2d at 271 . The New York Court of Appeals fully explained the rationale of the "confirmatory identification" exception. A court's invocation of the "confirmatory identification" exception is thus tantamount to a conclusion that, as a matter of law, the witness is so familiar with the defendant that there is "little or no risk" that police suggestion could lead to a misidentification. .... In effect, it is a ruling that however suggestive or unfair the identification procedure might be, there is virtually no possibility that the witness could misidentify the defendant.

The exception may be confidently applied where the protagonists are family members, friends or acquaintances or have lived together for a time. 583 N.Y.S.2d 814 , 593 N.E.2d at 272 (emphasis supplied; citations omitted). In People v. Tas , 51 N.Y.2d 915 , 434 N.Y.S.2d 978 , 415 N.E.2d 967 (1980), the New York Court of Appeals applied the exception in a case where the suspect and the identifying witness had been fellow inmates in the same tier of cells for at least one month. As the Appellate Division noted, the victim and the defendants were inmates in the same tier of cells for a period prior to the attack of at least one month and, although the victim may not have known their particular names, he was familiar with the defendants as individuals. Since the participants in the incident the victim and the perpetrators were known to each other, there was no "identification" within the meaning of CPL 710.30 and no prior notice need have been given by the People. 434 N.Y.S.2d 978 , 415 N.E.2d at 967-68 (emphasis supplied; citations omitted).

In People v. Collins , 60 N.Y.2d 214 , 469 N.Y.S.2d 65 , 456 N.E.2d 1188 (1983), the New York Court of Appeals was dealing with a voice identification. The controlling constitutional law is precisely the same as with visual identifications. The "confirmatory identification" exception applies with equal certainty. When a crime has been committed by a family member, former friend or long-time acquaintance of a witness there is little or no risk that comments by the police, however suggestive, will lead the witness to identify the wrong person. 469 N.Y.S.2d 65 , 456 N.E.2d at 1191 (emphasis supplied).

The witness was being used in the Collins case for the same purpose as was the witness in the case now before us. The Court of Appeals observed: The existing identification procedures were designed for cases involving "eyewitnesses" or persons who actually witnessed the crime as a victim or bystander (see, e.g., United States v. Wade, supra , 388 U.S. pp. 228-229, 87 S.Ct. at pp. 1932-1933 ) and may be unsuitable in other contexts. In the case now before us , for instance, Ruby Cohen's identification was sought not because she had witnessed the criminal events but because she knew the defendant. There was no occasion to hold a "lineup" of tapes including persons other than the defendant simulating the crime.

The purpose of asking her to make an identification was not to see whether she could select the "real crime" but to determine whether , when confronted with a recording of the crime, she was able to identify the perpetrator as a person with whom she was familiar. 469 N.Y.S.2d 65 , 456 N.E.2d at 1191 (emphasis supplied). In People v. Jenkins , 230 A.D.2d 806 , 646 N.Y.S.2d 535 (1996), the New York Appellate Division held that the use of a single photograph, albeit otherwise suggestive, had no such adverse effect in circumstances where the suspect and the identifying witness had established familiarity with each other. It is well settled that the identification of a defendant by the use of a single photograph must be merely confirmatory, based on the eyewitnesses' prior familiarity with the defendant, in order to overcome the suggestiveness of the procedure employed. The record here reveals that both identifying witnesses had sufficient familiarity with the defendant from having encountered him in the neighborhood two or three times a week for the period of a year.

In addition, the eyewitness to the shooting also knew the defendant from an altercation on the streets in Brooklyn. Under the facts presented, the identification of the defendant was merely confirmatory, and suppression was properly denied. 230 A.D.2d at 807 , 646 N.Y.S.2d 535 (emphasis supplied; citations omitted). In 2014, Massachusetts joined New York in recognizing, in Commonwealth v. Crayton , 470 Mass. 228 , 21 N.E.3d 157 (2014), that the integrity of the selective process is not even called into question in circumstances involving a confirmatory identification rather than a selective identification. See People v. Rodriguez , 79 N.Y.2d 445 , 449-450 & n. *, 583 N.Y.S.2d 814 , 593 N.E.2d 268 (1992) ( "confirmatory identification" exception to requirement of pretrial hearing on admissibility of suggestive pretrial identification applies where eyewitness and defendant are "known to one another" or where defendant's identity is not live issue at trial).

And in both of these circumstances, where the witness is not identifying the defendant based solely on his or her memory of witnessing the defendant at the time of the crime, there is little risk of misidentification arising from the in-court showup despite its suggestiveness. 21 N.E.3d at 170 (emphasis supplied). By 2018 New Jersey had also come aboard, at least by dicta if not by a square holding. In State v. Pressley , 232 N.J. 587 , 181 A.3d 1017 (2018), the Supreme Court of New Jersey dealt with a case that did not involve a "confirmatory" identification. The "confirmatory" identification, however, was expressly recognized even as it was distinguished.

Nor do we believe that this case involved a "confirmatory" identification, which is not considered suggestive. A confirmatory identification occurs when a witness identifies someone he or she knows from before but cannot identify by name. "... Police will, on occasion, display a single photograph to a witness in an effort to confirm the identity of a perpetrator.

Police typically limit this method to situations in which the perpetrator is previously known to or acquainted with the witness." 181 A.3d at 1020 (emphasis supplied; citation omitted). This more incisive analysis recognizes that a mere "confirmatory identification" does not generate the myriad risks of misidentification that frequently attend a selective identification made under suggestive circumstances. Accordingly, there is no necessity to conduct a taint hearing in order to decontaminate an identification procedure that is not presumptively tainted. Primary Conclusion Our primary conclusion is that what was involved in this case was a mere confirmatory identification, and not a selective identification.

Under these circumstances, the constitutional law governing identification procedures did not apply. There might have been some problem with the manner in which the police coached the identifying witness to assert herself with a greater degree of certainty, but no such contention is before us. Because of the interest shown by all parties, however, in classic constitutional identification law, we will, purely arguendo , assume that it applies. We will now look at the present case through that very different lens.

Constitutional Identification Law: The First Half-Decade The appellee's attempt to cast the current controversy as one involving constitutional due process directs our analytic focus back to the turbulent decade between 1967 and 1977. In Wood v. State , 196 Md. App. 146 , 7 A.3d 1115 (2010), cert. denied , 418 Md. 192 , 13 A.3d 800 (2011), this Court described that ten-year-long phenomenon and its impact. Constitutional identification law ... enjoyed a precise decade (plus four days) of high-profile celebrity between 1967 and 1977. During that decade, it rivaled confession law and search and seizure law in the national spotlight.

It commanded the attention of academic seminars and law reviews. It began with a sunburst on June 12, 1967, as the Wade - Gilbert - Stovall trilogy rocketed onto the national stage. 196 Md. App. at 157 , 7 A.3d 1115 (emphasis supplied). Looking back from the perspective of over 40 years, it is now clear that that turbulent decade broke down into two very distinct half-decades. The first half-decade was obsessed with the Sixth Amendment's right to the assistance of counsel.

The second half-decade shifted its attention almost completely onto general reliability pursuant to the Due Process Clause of the Fourteenth Amendment. The Sixth Amendment phase, moreover, relied heavily on the exclusion of evidence as a matter of law by suppression hearing judges. The general reliability phase, by contrast, relied heavily on the weighing of evidence as a matter of fact by lay jurors. It almost entirely eschewed the exclusion of the identification as a matter of law.

In Conyers v. State , 115 Md. App. 114 , 691 A.2d 802 , cert. denied , 346 Md. 371 , 697 A.2d 111 (1997), this Court noted the rising of the curtain. The decade began with a roar with the much heralded Wade - Gilbert - Stovall trilogy- United States v. Wade , 388 U.S. 218 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (1967) ; Gilbert v. California , 388 U.S. 263 , 87 S.Ct. 1951 , 18 L.Ed.2d 1178 (1967) ; and Stovall v. Denno , 388 U.S. 293 , 87 S.Ct. 1967 , 18 L.Ed.2d 1199 (1967). Identification procedures, which had theretofore been treated as a purely factual matter left largely for lay jurors to handle, for the first time took on constitutional dimensions. The catalyst for the constitutionalization of identification procedures was the determination that a police lineup was deemed to be a "critical stage," thereby entitling an accused who was forced to stand in a lineup to the Sixth Amendment right to the assistance of counsel. 115 Md. App. at 116 , 691 A.2d 802 (emphasis supplied).

Wood v. State noted both the Sixth Amendment character of those prototypical cases and the inevitable reliance on the exclusionary rule as a curative measure. The constitutional principle which they championed was the Sixth Amendment's guarantee of the assistance of counsel to a defendant. For the first time in constitutional history, the placing of a suspect in a police line-up for identification purposes was deemed to be a "critical stage." These are classic Sixth Amendment code words. If a defendant were placed in such a line-up without a lawyer having been provided and present, exclusion of the identification was automatically called for.

Such exclusion was in high vogue , and everyone was talking about identification procedures. 196 Md. App. at 157 , 7 A.3d 1115 (emphasis supplied). Creative law enforcement, however, soon found a way to outflank the Sixth Amendment by avoiding its application via two separate maneuvers. Wood v. State pointed out the Sixth Amendment's vulnerability to such creative prosecutorial strategy. Within five years , however, a Thermidorean Reaction set in.

Kirby v. Illinois , 406 U.S. 682 , 92 S.Ct. 1877 , 32 L.Ed.2d 411 (1972), first held that a suspect placed in a pre-indictment , as opposed to a post-indictment, line-up did not yet enjoy the protection of the Sixth Amendment because such a suspect was not yet an "accused." Being at a critical stage would qualify an "accused" for Sixth Amendment assistance, but if you are not yet "accused" even a critical stage would not help. Whatever little wind still propelled the exclusionary sails after Kirby , it was largely wafted away by the subsequent holding in United States v. Ash , 413 U.S. 300 , 93 S.Ct. 2568 , 37 L.Ed.2d 619 (1973), that even a post-indictment exhibition of a photograph of a subject , either in a group picture or as part of an array of individual photographs, was, unlike standing the suspect in a live line-up, not a critical stage. Whereas Kirby had diminished the ranks of the "accused," Ash diminished the incidence of a "critical stage." 196 Md. App. at 157 -58 , 7 A.3d 1115 (emphasis supplied). The prosecutorial strategy was clear-cut.

In short order, the police adjusted their identification procedures so as to avoid almost entirely any Sixth Amendment problems. They either 1) used some identification modality, such as a photographic array, that was not a critical stage, instead of a live police lineup or 2) made sure that a police lineup was used only for a suspect who was not yet an "accused." Conyers v. State , 115 Md. App. at 117 , 691 A.2d 802 (emphasis supplied). Turner v. State , 184 Md. App. 175 , 964 A.2d 695 (2009), then pronounced the requiem. Under the combined impact of Kirby and Ash , the post-indictment line-up essentially disappeared from the world of criminal investigation, and with it any significant exclusion of identification evidence based on the Sixth Amendment's right to counsel.

The once familiar line-up parade of stage and screen has been retired to the Smithsonian. Creative law enforcement procedures effectively finessed the Sixth Amendment. 184 Md. App. at 179 , 964 A.2d 695 (emphasis supplied). The Spotlight Turns To General Reliability: The Second Half-Decade With the essential fading away of identification issues based upon the Sixth Amendment right to counsel, attention inevitably turned to general due process. With that shift, moreover, came a concomitant shift away from the exclusion of evidence as a matter of law and toward the weighing of evidence as a matter of fact.

Whatever vitality the Wade - Gilbert - Stovall trilogy still retained after 1973 was by virtue of its third member, Stovall v. Denno , 388 U.S. 293 , 87 S.Ct. 1967 , 18 L.Ed.2d 1199 (1967). Unlike Wade and Gilbert , Stovall was grounded in the due process clause of the Fourteenth Amendment rather than in the right to counsel of the Sixth Amendment. In one sense, a due process claim under Stovall enjoyed much broader coverage than a right to counsel claim under Wade and Gilbert because a due process claim is not limited to post-indictment procedures and does not require that the procedure be considered a critical stage. On the other hand, whereas a Sixth Amendment violation results in virtually automatic exclusion of the identification, a due process violation only occasionally does so.

Instead of exclusion, an arguable due process violation generally calls for a balancing of competing factors under a "totality of circumstances" approach, and this is, far more often than not, a weighing function for a jury rather than an exclusionary function for a judge. Turner v. State , 184 Md. App. at 179 , 964 A.2d 695 (emphasis supplied). In Stovall v. Denno , the third in the original trilogy of identification cases and the one based on general due process, the defendant was found guilty of both first-degree murder and attempted first-degree murder by the out-of-court identification, followed by an in-court identification, of a victim who had watched the defendant stab her husband to death and had then been stabbed herself a total of eleven times by the defendant. She underwent major surgery to save her life.

On the day after the surgery, she was lying in her hospital bed when five detectives, one of whom was handcuffed to the defendant, brought the defendant into the room and stood him at the foot of the bed. The victim identified him: "That's the man." Was such an identification procedure suggestive? Of course it was. As Turner v. State noted, "By its very nature ... a one-on-one show-up is suggestive, just as 99 out of every 100 judicial or in-court identifications are suggestive.

(It is always a good bet that the person the witness is being asked to identify is the guy sitting at the trial table who is not dressed like a lawyer.)." 184 Md. App. at 180 , 964 A.2d 695 . The Supreme Court nonetheless affirmed the legitimacy of the one-on-one show-up in the hospital room on the ground