Opinion
CASE NUMBER 03 CR 50031-1
October 22, 2003
MEMORANDUM OPINION AND ORDER
Defendant, Anthony Green, filed a motion to suppress identification testimony of two witnesses based on the use of photo array identification procedures. In conjunction with his motion to suppress, defendant requests an evidentiary hearing, contending that there is a question of fact as to the nature and quality of the photos used in the arrays and whether the two witnesses were affected by any intervening events between being shown the first photo array and being shown the second photo array. The government objects to the need for an evidentiary hearing on either ground. Whether to conduct a pre-trial evidentiary hearing to assess the admissibility of an identification is within the judgment of the district court. United States v. Torres, 191 F.3d 799, 811 (7th Cir. 1999). The Constitution does not contemplate a peruse rule mandating a judicial determination as to the admissibility of identification evidence outside the presence of the jury in every case. Torres, 191 F.3d at 811. In fact, it is often properly left to the jury to determine the reliability of identification evidence. Torres, 191 F.3d at 811. To warrant an evidentiary hearing, a defendant must demonstrate a disputed material issue of fact by showing definite, specific, detailed, and nonconjectural factual issues. Torres, 191 F.3d at 811. Here, the first asserted issue of fact related to the nature and quality of the photos used has been resolved by the replacement of photocopies with the actual photos. There is no longer any need to determine the nature and quality of the photos. As for the question of any intervening circumstances which may have arose between the first and second photo line-up that may have affected the witnesses, that is a matter that goes to reliability and can be addressed at trial if necessary. In the exercise of its judgment, the court finds there are no material issues of fact that need be resolved as to this motion and, therefore, denies defendant's request for an evidentiary hearing. The court will issue its ruling as to the merits of the motion to suppress on November 14, 2003, at 3:00 p.m.,