In State v. Martinez, 478 P.3d 880 (N.M. 2020), the Supreme Court of New Mexico cited the Principles of the Law, Policing (T.D. No. 2, 2019), in abandoning the prevailing federal rule governing the admission of eyewitness-identification evidence, as articulated in Manson v. Brathwaite, 432 U.S. 98 (1977), in favor of adopting a new per se exclusionary rule for unnecessarily suggestive pretrial identification procedures, based on its determination that the New Mexico Constitution provided broader due-process protection in the context of eyewitness-identification evidence than the U.S. Constitution.

In that case, the defendant was arrested for two murders based on an eyewitness’s identification. The eyewitness testified that, after the detective investigating the murders stopped recording his interview, the detective showed him five or six “jail photos” of individuals, including a photo of the defendant, and that he identified the individual he saw walking away from the crime scene as one of the individuals in the photos. Two days later, at the county sheriff’s office, the detective showed the eyewitness a photo array of six photographs, some of which were reportedly the same jail photos previously shown to him. The eyewitness identified the defendant’s photograph as a photograph of the person he saw at the crime scene, stating that the photograph was of the same individual he had identified in the jail photos.

The district court denied the defendant’s motion to suppress the photo identification and any subsequent in-court identification after it applied the federal standards set forth in Manson, which New Mexico had adopted. Under the Manson test, a court rules on the admissibility of eyewitness-identification evidence by determining “whether police identification procedures were ‘unnecessarily suggestive’ and, if so, weighing specified factors in deciding the ‘linchpin’ issue of whether the eyewitness identification was nonetheless sufficiently reliable to satisfy federal due process requirements.” At trial, the eyewitness identified the defendant as the individual he saw walking away from the crime scene, and the defendant was convicted by the jury of two counts of first-degree murder and sentenced to two consecutive life terms.

The New Mexico Supreme Court affirmed the district court’s denial of the defendant’s motion to suppress, but held, inter alia, that it would abandon the Manson rule on the ground that the state constitution offers broader due-process protection and would “overrule prior cases to the extent that they apply the Manson reliability standard to determine whether unnecessarily suggestive, police-arranged, pretrial identifications are nonetheless admissible.” In its place, the court adopted a per se exclusionary rule providing that “if a witness makes an identification of a defendant as a result of a police identification procedure that is unnecessarily suggestive and conducive to irreparable misidentification, the identification and any subsequent identification by the same witness must be suppressed.” In cases of disputed eyewitness identifications, the court abandoned the independent-source doctrine, which considered an in-court identification independent and untainted by an out-of-court identification and admissible at trial.

In evaluating the defendant’s argument that the test established in Manson is outdated, the court confirmed that, since Manson, a substantial body of scientific literature on human memory and perception has been developed, including research showing that most of Manson’s “reliability” factors do not correlate with the reliability of an eyewitness’s identification, as well as research regarding the influence the administration of identification procedures has on a witness. Furthermore, legal literature is also “replete with discussions of the doctrinal and scientific shortcomings of the Manson reliability test and the significant threat posed to the integrity of our criminal justice system by misidentifications engendered by the Manson rule.” The court explained that “commentators have expressed the view that the United States Supreme Court’s two-part test—which relegates unnecessary suggestiveness to a threshold inquiry and focuses primarily on five fixed ‘reliability’ factors—is untethered to any sound scientific knowledge,” and ‘“does not comport with scientific research,’ which ‘has called into question the validity of many of the Supreme Court’s so-called ‘reliability’ factors,”’ citing and quoting the Reporters’ Notes to Principles of the Law, Policing § 10.01 (T.D. No. 2, 2019). The court noted that the Reporters’ Notes to § 10.01 called for the replacement of the Manson standards with the adoption of ‘“laws and policies that adhere to our best understanding of the reliability of eyewitness testimony and the factors that in fact heighten or diminish reliability in any given case.”’

Citing the Reporters’ Notes to Principles of the Law, Policing § 10.02, the court explained that, in addition to some state courts reforming the Manson standards, “[a] number of state legislatures have also taken measures to ensure that current scientific standards are taken into account in regulating the manner in which identification procedures are administered.” For example, New Mexico enacted the Accurate Eyewitness Identification Act, NMSA 1978, §§ 29-3B-1 to 29-3B-4 (2019), which requires law-enforcement agencies to adopt policies on eyewitness-identification procedures that are supported by science. The court concluded that the criticisms of the Manson decision by scientific and legal literature “compel us to conclude that the federal reliability standard set forth in Manson is both scientifically and jurisprudentially unsound and hence flawed under our interstitial review.”

Applying its new standards, the Supreme Court of New Mexico affirmed the district court’s decision denying the defendant’s motion to suppress, holding that the defendant “failed to establish prima facie that some aspect of the identification procedure used by [the detective] was suggestive in nature.” The court reasoned, among other things, that, while the defendant’s expert witness testified as to the influence suggestive identification procedures have on an eyewitness’s memory and the general best practices law-enforcement agencies should use when administering the procedures, he did not testify about how the best practices related to those used in the defendant’s case or “whether, or to what extent, a failure to follow one or more of these ‘best practices’ would result in an unnecessarily suggestive identification procedure conducive to an irreparable identification.”

Megan Dingley

The American Law Institute


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