33
to Radiwker's testimony, this picture was sent to the Israeli police in 1975 by U.S. government officials, who identified it as a photo of Hazners. (tr. 8701, 712)
Photo #4 in Exhibit G-5 is a picture of a person wearing a military uniform. This photo portrays the same person as Exhibit G-9, which is identified as a picture of Hazners. The uniform is of the type he wore from May 1943 until the end of the war. 42/
3. Photospreads
During the trial, there was some confusion about which group of photographs was shown to the Israeli witnesses. This question is relevant in determining whether the photospread was suggestive, but it is 1not an element of the government's case. On the other hand, evidence showing which particular photographs the witnesses selected at the pre-trial identification is 2necessary to support a finding of deportability. This evidence is found in the eyewitnesses' testimony and the actual photographs they picked, not in the photospread. Since the spread shown to the witnesses was not evidence, the government had no reason to produce the original. Instead, it provided a 3facsimile (Exhibit G-10) authenticated by the Israeli police officer who interviewed the witnesses. (tr. 8753)
| 42/ | 4One other person was pictured twice in the array shown to the witnesses. Moreover, the two photos of Hazners were quite different, having been taken 12-13 years apart. See United States v. Falange, 426 F.2d 930 (2d Cir.) (three photos of defendant in an array of 16 held not prejudicial), cert. denied, 400 U.S. 906 (1970). |
Examination
1“not an element of the government's case” . . . 2“necessary to support a finding of deportability. This evidence is found in the eyewitnesses' testimony and the actual photographs they picked, not in the photospread”
The INS desperately attempts to fashion its discredited photospread(s) into evidence to be considered nevertheless. Of course the spread was suggestive if only one other person was pictured twice in the array of photographs shown the witnesses. Of course the spread was suggestive if one of the photographs had "HAZNERS" written on the front.
3“facsimile (Exhibit G-10) authenticated by the Israeli police officer who interviewed the witnesses. (tr. 8754)”
That a facsimile was produced and testified to means there is no actual chain of evidence.
That the two photographs of Hāzners which were picked out were "quite different" in an array of pictures nearly all of which were of Hāzners confirms the suggestiveness of the identification process, rather than clears it of undue influence.
| 1 | Testimony of Maria Radiwker, 7-March-1978, cross examination, transcript pp. 865–955. |
| 2 | Testimony of Ber Mendelkorn, 25-October-1977, direct, transcript pp. 15–93. |
| 3 | Testimony of Maria Radiwker, 7-March-1978, cross examination, transcript pp. 865–955. |
| 4 | Testimony of Maria Radiwker, 7-March-1978, cross examination, transcript pp. 865–955. |