He's the One! In Court ID Not a 'One Man Lineup,' 1st Cir. Rules

By Casey C. Sullivan, Esq. on April 24, 2015 | Last updated on March 21, 2019

It was a drug smuggling conspiracy straight out of a pulp novel -- or telenovella. For two years, Manuel "El Boss" Santana-Cabrera sent drug couriers on flights from San Juan to Philadelphia and New York. The couriers would check in with regular luggage, which airport workers would swap out with cocaine-packed suitcases to be handed off to a taxi driver upon arrival.

Eventually, the DEA caught wind, one smuggler turned on another, and bit-players Jorge Correa-Osorio and Denise Shephard-Fraser were arrested. In a dramatic in-court identification, Correa was outed as "El Don," responsible for smuggling the drugs into the airport. It was a scene, he argued on appeal, that was unduly suggestive and violated his due process rights.

Does Biggers or Perry Apply and Does it Matter?

Correa and Shephard were convicted of conspiring to distribute cocaine and possession of cocaine with intent to distribute. Both appealed their convictions, but Correa brought the only meaty issue. Addressing Correa's objections, the Court spent significant time discussing whether the Supreme Court decisions of Perry v. New Hampshire or Neil v. Biggers applied to the identification.

Under Perry, the reliability of evidence is to be determined by the jury as part of the adversarial system. However, under Biggers, police-arranged identifications may be barred for when they are impermissibly suggestive and likely to result in misidentification. Was the in-court finger pointing a police arranged identification or simply part of the adversarial process?

After pages of hemming and hawing, the court declined to decide which test applied, as Correa's objections would fall under both of them. Under Perry, Correa was free to convince the jury that the evidence that he was involved in drug trafficking, or that Vega could be believed, was unreliable. He failed to do so. Applying Biggers, the identification lacked an undue element of suggestion -- no one was pushing Vega to identify Correa instead of others.

The Dissent Argues for Biggers

Judge Barron dissented as to the opinion's treatment of the in court identification. According to Barron, the power of an eyewitness identification in front of the jury -- "that man! He's the one who did it!" -- requires "more than faith" in the jury. The in court identification here was suggestive enough to require a Biggers test, one which Barron thinks it fails. The circumstances "clearly were unnecessarily suggestive." Vega had been prepped as a witness, suggesting orchestration, had identified Correa after a day of seeing him seated at the defendant's table, creating suggestiveness.

Correa's argument was enough to convince Barron that the identification was the equivalent of a "one person show up." Unfortunately for Correa, Barron was unable to convince his fellow justices of the same.

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