EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, May 9, 2013

Picture Perfect?: Does the Officer Who Created a Photo Array Have to Testify to Satisfy the Confrontation Clause?

When police have a suspect and an eyewitness, they often try to get the eyewitness to pick the suspect out of a photo array.

Generally a police officer shows a set of photographs to a victim or witness and asks whether he or she recognizes one of the persons in the photo-graphs as the perpetrator. A positive identification of a suspect can be used to place the suspect under arrest, and the act of identification may be used later as evidence in the prosecution of the defendant.

Similar to its federal counterpartTexas Rule of Evidence 901(a) provides that

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

In Haq v. State, 2013 WL 1890260 (Tex.App.-Houston [1 Dist.] 2013), the defendant claimed that the trial court erred in allowing the admission of evidence concerning a photo array because the officer who created the array did not testify, meaning that there was a failure of authentication. So, how did the court rule, and what would have happened if the defendant made a Confrontation Clause objection?

In Haq, Mohammed Haq was convicted of credit card abuse. At trial, Andrew Swan, the alleged victim,

testified that during the investigation into the [subject] transaction an officer showed him a photo-array, State's Exhibit 2. He stated that the officer did not tell him that he had to pick someone from the photo-array, and the officer did not tell him whom to select. He testified that he selected someone from the photo-array and that he selected the person from his "visual perception of the gentleman when he came in [the store]." Defense counsel objected to admission of this exhibit, stating, "Appropriate foundation predicate has not been laid for the introduction of this photospread." The trial court overruled the objection and admitted the photo-array. Swan identified his signature next to a picture on the photo-array.

Another victim, Megan Messinger, also gave similar testimony.

After he was convicted, Haq appealed, claiming that  the photo-array was not properly authenticated because the officer who created it did not testify at trial. The Court of Appeals of Texas, Houston, disagreed, concluding that

appellant cites no authority for the proposition that only the officer who either prepared the photo-array or showed the photo-array to the witnesses can properly authenticate the photo-array, nor does appellant cite any authority for the proposition that testimony concerning how the photo-array was generated is necessary to authenticate the photo-array. Instead, to properly authenticate the photo-arrays, the State need only present evidence sufficient to support a finding that the photo-arrays are what the State claims them to be, e.g., the photo-arrays shown to Swan and Messinger for the purpose of identifying the user of James Jordan's credit card. See TEX.R. EVID. 901(a)....This may be accomplished by the testimony of Swan and Messinger, witnesses who have knowledge that the exhibits in question are what the State claims them to be. TEX.R. EVID. 901(b)(1)....

Here, Swan and Messinger identified State's Exhibit 2 and State's Exhibit 12, respectively, as the photo-arrays shown to them by a Harris County Constable's Office deputy. They both identified their signatures next to the picture that they had selected....his testimony is sufficient to satisfy the trial court that the exhibits were what the State claimed them to be-the photo-arrays shown to Swan and Messinger.

This was not a surprising or controversial result because what defense counsel was really challenging was not authenticity; it was the reliability of the photo array. It was how the sausage was made. Defense counsel argued as much on appeal. According to the appellate court:

On appeal, defense counsel argues, in contending that the photo-arrays were not properly authenticated, that the State did not call the officer who generated the photo-arrays and showed them to Swan and Messinger as a witness; the State presented no testimony as to how this officer generated the photo-arrays; the State did not produce the original photo-arrays; no one testified how the district attorney's office obtained the photo-arrays; no one testified that the photo-arrays were unaltered; the photo-arrays were not established as a business or public record "for hearsay purposes"; and it was not established that the photograph of appellant used in the photo-arrays was a fair and accurate representation of him at any time.

The appellate court found that it did not need to address these issues because they were not preserved for appellate review. But what if these issues were preserved, and what if defense counsel claimed that the officer needed to testify to comply with the Confrontation Clause? Would the case then be like Melendez-Diaz v. Massachusetts, in which the Supreme Court found (1) that certificates of state laboratory analysts are "testimonial" and thus covered by the Confrontation Clause; and (2) that if the forensic analysts (or similar experts) who prepared such certificates (or similar documents) do not testify at a criminal defendant's trial, the certificates are inadmissible? I think that the answers would be "yes" and "yes," but I need to consider the issue some more.



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