The defendant physically resisted appearing in a lineup. Police then took a photograph of his face, telling him it was necessary for a “prisoner movement slip”, and they did the same for the fillers. The complainant picked the defendant from this “lineup”, as he had done from a prior photo array. Because lineup identifications are admissible, and photo arrays are not, the prosecution argued that the defendant improperly denied them useful evidence, and therefore the second photo array was admitted at trial, even though a true lineup was successfully conducted five months later.
The Court of Appeals said this was not an abuse of discretion. It is important to note that admissibility was on a theory that the defendant cannot benefit from “his own wrong”, not that photo arrays are admissible as a matter of discretion. Further, the length of time between the two lineups was important to the decision as well. Had the defendant co-operated a few weeks later, I do not believe that this ‘photo lineup’ would have been admissible. I think that this type of procedure is a cattle prod to co-operation, not an open door to photo arrays becoming admissible at trial.
