Motions to Suppress Identifications

Defendants usually face a formidable burden in trying to convince a judge to suppress a pretrial identification.

A motion to suppress an identification is a common defense method of seeking a judge’s ruling that a pretrial identification is inadmissible because the process was unfair.

(For a variety of information on eyewitness IDs, including more on determining whether they are admissible, see Eyewitness Identification.)

A Tough Standard

If the process by which an identification occurred was “unnecessarily suggestive and conducive to irreparable mistaken identification,” it is inadmissible.  (Neil v. Biggers,  409 U.S. 188 (1972).) But even where an identification procedure was unduly suggestive, the identification is generally admissible if, given the “totality of the circumstances,” the actual identification was reliable. (Manson v. Brathwaite, 432 U.S. 98 (1977).) (However, some states provide more protection for defendants when it comes to identifications and will automatically reject those that are the product of inherently suggestive procedures.)

The governing standard makes it difficult for defendants to knock out identifications. As a result, juries often hear evidence of pretrial identifications. But the fact that a pretrial identification comes into evidence doesn’t mean that a defendant can’t challenge it. Indeed, defendants typically make a similar argument to the jury that they made to the judge about the untrustworthiness of an identification. Even though the evidence came in, the goal is to convince the jury to question it.

(For information on the standard by which “showups” are judged, see  Face-to-Face Eyewitness Identification: “Showups”.)


Judges’ rulings on motions to suppress identifications typically consist of one of the following:

  • When eyewitnesses identify suspects prior to trial more than once, a judge may limit how many identifications the witnesses can refer to at trial even if all the procedures were fair. For example, if an eyewitness identifies a suspect at a photo lineup and later in an actual lineup, the judge may rule that the witness may testify to only one of the identifications (in addition to the in-court identification during trial, of course). This option means that prosecutors can’t automatically “pile on” identification testimony.
  • A judge may rule that an eyewitness may not testify to a pretrial identification because it was conducted unfairly. For example, a judge may rule that a witness cannot testify to identifying a suspect at a showup because a police officer told the witness, “We’re confident that this is the right guy.”
  • A judge may rule that an unfair identification procedure so tainted an eyewitness’s memory that the witness cannot testify to the pretrial identification and also cannot identify the defendant at trial. If such a ruling eliminates the prosecution’s only evidence of a perpetrator’s identity, it requires that charges be dismissed. Such extreme rulings are rare, however.

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