Test to Determine if an Out-of-Court Identification is valid

“We apply a two-part test to determine whether an out-of-court
identification should be admitted in evidence. State v. Kelly, 2000 ME 107, ¶ 19,
752 A.2d 188, 192. First, “the defendant must prove, by a preponderance of the
evidence, that the identification procedure was suggestive.” Id. Second, if the
court finds that the procedure was suggestive, “the State then bears the burden of
proving, by clear and convincing evidence, that in the totality of the circumstances
the identification, although made under a suggestive procedure, is nevertheless
reliable.”6 Id. We review the suppression court’s factual findings for clear error
and its legal conclusions de novo. See State v. DiPietro, 2009 ME 12, ¶ 13, 964
A.2d 636, 640; State v. Reeves, 499 A.2d 130, 136 (Me. 1985).”  State v. Nigro, 2011 ME 81.

Previous post:

Next post: