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Case 1:20-cr-00330-PAE Document 397 Filed 10/29/21 Page 66 of 84 Minor Victim-4 identified photefilas possibly depicting the defendant, but indicated that she was not sure. When she reached photo | Minor Victim-4 said it depicted the defendant. After completing her review of the book, Minor Victim-4 returned to compare photos a and she confirmed that she believed photo Bwas a photo of the defendant, and she was not sure whether she knew the person in ho B. Applicable Law As a general matter, the Constitution “protects a defendant against a conviction based on evidence of questionable reliability, not by prohibiting introduction of the evidence, but by affording the defendant means to persuade the jury that the evidence should be discounted as unworthy of credit.” Perry v. New Hampshire, 565 U.S. 228, 237 (2012). Eyewitness identifications should therefore be excluded only where “improper police conduct” occurred that was “so unnecessarily suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” /d. at 238-39; see Manson v. Brathwaite, 432 U.S. 98, 112-14 (1977); Simmons v. United States, 390 U.S. 377, 384 (1968). Federal courts follow a two-step analysis in ruling on the admissibility of identification evidence. Perry, 565 U.S. at 238-40; Brisco v. Ercole, 565 F.3d 80, 88 (2d Cir. 2009). First, the defendant must show that the identification was “so unnecessarily suggestive and conducive to irreparable mistaken identification that [the defendant] was denied due process of law.” United States v. DiTommaso, 817 F.2d 201, 213 (2d Cir. 1987) (citation and internal quotation marks omitted); see Raheem v. Kelly, 257 F.3d 122, 134 (2d Cir. 2001). This is a high threshold to meet, as the defendant must show that, under the totality of the circumstances, there is “a very substantial 65 DOJ-OGR-00005849