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Case 1:20-cr-00330-PAE Document 398 _ Filed 10/29/21 Page 40 of 52 The facts about J interaction with Ms. Maxwell are hotly disputed. Ms. Maxwell rejects the government’s unsupported conclusory statements about when and if she interacted with Ms. Maxwell and her ability to do so absent suggestion. When the prosecution offers testimony from an eyewitness to identify the defendant as a perpetrator of the offense, fundamental fairness requires that that identification testimony be reliable. Raheem v. Kelly, 257 F.3d 122, 133 (2d Cir. 2001). The court must first determine whether the pretrial identification procedures unduly and unnecessarily suggested that the defendant was the perpetrator. If the court finds, however, that the procedures were suggestive, it must then determine whether the identification was nonetheless independently reliable. Jd. The critical question here, ignored by the government, is not whether yg Anew that she was accusing Ms. Maxwell in 2020 (she undoubtably was) but whether she could identify Ms. Maxwell as the person she was now claiming abused her. Of the pictures selected here, bad a high probability of picking Ms. Maxwell -- even then, she was tentative about one person who was not Ms. Maxwell. The show up was neither confirmatory nor fair. The protection against unduly suggestive procedures encompass not only the right to avoid improper police methods that suggest the initial identification, but as well the right to avoid having suggestive methods transform a selection that was only tentative into one that is positively certain. Solomon v. Smith, 645 F.2d 1179, 1185 (2d Cir. 1981). Ms. Maxwell has met her burden of demonstrating the show up was unduly suggestive. Under these circumstances the Court should next consider the well know “five factors”: (1) the witness's opportunity to observe the criminal at the time of the crime, (2) the degree of the witness's attention at that time, (3) the accuracy of the witness's initial description of the 34 DOJ-OGR-00005995