08 20 MOTION TO SUPPRESS [PHOTO] LINEUP EVIDENCE

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08-20 MOTION TO SUPPRESS [PHOTO] LINEUP EVIDENCE

[CAPTION] MOTION TO SUPPRESS [PHOTO] LINEUP IDENTIFICATION

Defendant moves to suppress the [photo] lineup identification in this case, and [he/she] states:

1. Defendant is charged with [crime charged with].

2. The case is set for a jury trial [date of trial] in this Court.

3. A [photo] lineup was conducted by the [name of police department] Police Department for a witness, [witness name], to identify Defendant.

4. This witness will be called by the State to testify, and the witness will attempt to identify Defendant as the perpetrator.

[5. The State will attempt to introduce the results of this [photo] lineup into evidence, probably under Ark. R. Evid. 801(d)(1)(iii).]

[6]. The [photo] lineup was unduly suggestive and unconstitutional in nature under the totality of the circumstances, tainting any subsequent identification of the accused, because [reason lineup is unduly suggestive].

[7]. An unduly suggestive [photo] lineup violates due process in violation of the Fourteenth Amendment to the U.S. Constitution or Ark. Const., art. 2, § 8 or both, and it taints the in-court identification. Mezquita v. State, 354 Ark. 433, 125 S.W.3d 161 (2003); Fields v. State, 349 Ark. 122, 76 S.W.3d 868 (2002). [Reliability of a photo array must be shown by the State. Manson v. Brathwaite, 432 U.S. 98 (1977); Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995).]

[8. The physical lineup was conducted without the benefit of counsel being present in violation of Defendant's right to counsel under the Sixth Amendment; Ark. Const., art. 2, § 10; or both. United States v. Wade, 388 U.S. 218 (1967).]

[9.] If the pretrial identification is tainted, the witness cannot be permitted to make an in-court identification. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982).

WHEREFORE, Defendant requests that the results of the [photo] lineup be suppressed and that any in-court identification be suppressed as being tainted by the unconstitutional nature of the lineup procedures.

[SIGNATURE BLOCK]

[CERTIFICATE OF SERVICE] NOTES

1. The factors to be considered under the totality of the circumstances were reiterated in Fountain v. State, 273 Ark. 457, 463, 620 S.W.2d 936, 940-41 (1981):

Factors to be considered in testing the reliability of lineup identification are set out in Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977), and McCraw v. State, 262 Ark. 707, 561 S.W.2d 71 (1978): (1) the opportunity of the witness to

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