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be N Ww ws Oo OY ~] oO WO a oO = be N Ww = Hs Oo a OY a ~] a oO a Ke) 20 21 22 23 24 25 Case 1:20-cr-00330-PAE Document465- Filed 11/15/21 Page 100 of 127 100 LB1TMAX3 the defense to engage in the full set of questions that counsel has indicated, but for purposes of the in limine motion, it's denied. Defense 19. Here, the defense seeks to suppress alleged Victim-4's identification of Ms. Maxwell on the ground that the government used unduly suggestive photo array procedures that violate due process rights. am prepared to deny this motion. Eyewitness identifications should be excluded when improper police conduct created a substantial likelihood of misidentification. Perry v. New Hampshire, 565 U.S. 228, (2012). follow a two-step analysis in ruling on the admissibility of identification evidence. First, I must determine whether the pretrial identification procedures wer unduly suggestive. Some examples of suggestive procedures include using a very small number of photographs, making suggestive comments, or the display of the accused in a way that so stood out from all other photographs to suggest to an identifying eyewitness that the person was more likely to be the culprit. See, United States v. Concepcion, 983 F.2d 369, (2d Cir. 1992). Looking at the photo array, neither the photos used or the procedure itself was unduly suggestive. The array contained a sufficient number of photos larger than many arrays that courts have held were not unduly suggestive. Defense's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00007151