What is the burden of proving that an identification procedure was unduly suggestive and unfair?
California, United States of America
The following excerpt is from People v. Garrett, C067436, C069886 (Cal. App. 2018):
" '[D]efendant has the burden of showing that the identification procedure was unduly suggestive and unfair "as a demonstrable reality, not just speculation." [Citation.] A due process violation occurs only if the identification procedure is "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." [Citation.]' 'We have held that an identification procedure is considered suggestive if it "caused defendant to 'stand out' from the others in a way that would suggest the witness should select him [or her]." [Citation.]' (People v. Cook (2007) 40 Cal.4th 1334, 1355.)
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