The United States Supreme Court on January 11, 2012, rendered a decision in Perry v. New Hampshire, that limits the ability of the defense to successfully attack a suggestive or unreliable identification of the defendant by an eyewitness. Eyewitness identification has long been the subject of commentary and even experiments. Many of us have seen the video of or even participated in a situation where a professor has a classroom full of students when a subject rushes in steals the professor's purse and the class is asked to describe the suspect. It's incredible how varied the descriptions of the suspect are. Different facial features, races, clothing, height and weight and numerous other identifiers have been listed by witnesses seeing the same thing. How many times have you been in line at a theater, seen someone you think you recognize and been mistaken? It's happened to all of us.
Stress of an unexpected, even scary, situation can affect one's perception and ability to accurately identify suspects or describe events. On a personal note, I witnessed a car crash right in front of my eyes. I stopped, waited for the police, submitted to an interview, and was told that my account was completely "wrong". Physical evidence and other eyewitnesses made it quite obvious that what I thought I had seen was just plain in error. I didn't mean to mess it up or make a mistake, it just happens because when events occur quickly under unexpected conditions what we think we see isn't always what actually happened.
Now, when a police officer investigates a crime and gets a description of the suspect from the victim he can just take the information or by his questions and technique he can influence the identification. For example, when a photograph of a suspect is shown to a victim several similar looking photos are used in a "six pack". The eyewitness is asked to view the subjects, admonished it's just as important to exonerate the innocent as to find the guilty person and just because a picture is in the "six pack" it doesn't mean the perpetrator's photo is contained in it. When that doesn't happen and a singular photo is shown to a witness and no positive identification is made, what do you expect would happen if that same singular photo is placed in a subsequent "six pack" ? Isn't that overly suggestive? Isn't that type of police technique almost ensuring the identification of the photo of the singular photo individual? Of course it is. Once suggestive procedures like this one are used, the ultimate identification of the suspect (now defendant) taints the whole process. Now you will never know if the identification is the product of what the eyewitness saw or the suggestive procedure used by the police.
In spite of the above, the Supreme Court has decided in Perry v. New Hampshire that the "reliability of relevant testimony typically falls within the province of the jury to determine". In plain terms, unfairness, unreliability, and suggestiveness as well as due process challenges to the identification procedure are now points to be argued to the jury. Don't look to the judge for help. Look to the best criminal defense trial lawyer you can find because that is where the case and the identification will be decided.