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(emphasis added); "reliability is the linchpin in determining the admissibility of identification testimony." Id. at 114. Any question about the constitutionality of the photo-identification procedure must be answered in accordance with Manson, which requires this court to determine whether the pre-trial identification procedure was suggestive, and if so, to 1examine the reliability of the identification using the five criteria first enunciated in Neil v. Biggers, 409 U.S. 188, 199-200 (1972). The first step is to determine whether the procedure was suggestive.
All five of the witnesses whose testimony has been discussed picked Hazners' photograph from arrays consisting of 13-18 pictures. (Three of the five were shown the pictures in the form of a photospread; two saw loose photographs.) The pictures in the photospreads were not all uniform, but the differences were not such as to draw attention to any particular subject. Nevertheless, respondent argues that the spread was suggestive. In order to complete the analysis, the government will assume for the sake of argument that it was.
2We must now apply the Biggers criteria to determine the factors affecting reliability.
1. Opportunity to view the perpetrator at the time of the crime
In most criminal cases the witness has no more than a fleeting glimpse at the perpetrator. For example, in Manson, the witness's encounter with the dope dealer lasted as little as 15-20 seconds, and took place through a narrowly opened door in the early
Examination
As photospreads were ultimately excluded, the INS expends tremendous effort in legitimizing what is not in official evidence in the hope, obviously, per their earlier contention, that the "court"—not being a court of law—is not strictly held to rules of evidence.
1“examine the reliability of the identification using the five criteria first enunciated in Neil v. Biggers, 409 U.S. 188, 199-200 (1972)” . . . 2“We must now apply the Biggers criteria to determine the factors affecting reliability.”
We will leave the reader to examine the judicial review and denial of the INS's motion to appeal for its review of witness testimony and the issue of the "photo spread." Nevertheless, we must observe, regarding the INS citing Biggers as precedent, that the court also stated in the very same case: "There was, to be sure, a lapse of seven months between the rape and the confrontation. This would be a serious negative factor in most cases." If the passage of seven months was a concern in a rape case—certainly, there are few more direct or searing confrontations between aggressor and victim—then the passage of 36 years calls the Israeli's witnesses' identifications into question all the more. If a photograph is shown to hundreds of people, a handful are bound to believe they saw that person, particularly if they are told that all the photographs are of war criminals who participated in the industrialized genocide of their people, their friends, their loved ones. The INS ignores that the Israelis kept no record of how many Holocaust survivors they interviewed, although they testified to an estimated number of some 150 to 200 who should have also seen "Hazners" at the Prefecture or Ghetto were he guilty of the conduct and crimes alleged but who failed to identify him.