UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

United States of America,

Plaintiff,

v. Case No. 15-20487

Jabron Thomas, Sean F. Cox

United States District Court Judge

Defendant.

___________________________/

OPINION & ORDER 

RE: DEFENDANT’S MOTION IN LIMINE - SEEKING EXCLUSION OF IN-COURT

IDENTIFICATION (D.E. NO. 35)

The instant action involves Defendant Jabron Thomas’s (“Defendant”) alleged robbery of

a Huntington Bank in Redford, Michigan. At trial, one of the central issues will be identification

of the suspected bank robber. This matter is currently before the Court on Defendant’s Motion

in Limine, seeking to exclude in-court identifications of Defendant. The motion has been fully

briefed by the parties. The Court heard oral argument on this motion on December 9, 2015. For

the reasons set forth below, the Court shall GRANT Defendant’s motion to the extent that the

Court shall conduct an evidentiary hearing on December 14, 2015, to determine whether the

identifications are reliable under a totality of the circumstances. 

BACKGROUND

On July 14, 2015, a Huntington Bank in Redford, MI, was robbed. Video surveillance

and witness statements indicated that the suspect was a black male who approached bank tellers

and displayed a handgun on the counter. The suspect appeared to be wearing a black hat with a

white English “D,” a black hoodie, and brown shorts. The suspect gestured to the tellers to

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provide him money from the money drawer. As the suspect was leaving the bank, he looked into

a concealed camera that captured an image of his face. The video surveillance shows the suspect

fleeing in an older model blue or black Oldsmobile or four-door Buick. Upon releasing

surveillance images of the robbery to various media outlets, law enforcement agents allegedly

received numerous tips about the identification of the alleged bank robber. Subsequently, on

July 18, 2015, officers went to Defendant’s place of employment, Rite Touch Auto. Defendant

allegedly attempted to conceal himself in an interior office in order to avoid detection. After

being ordered to come out, Defendant was arrested by the Redford Police. A search of the office

revealed a handgun, which officers claim looked like the same silver handgun used during the

robbery. 

Redford police interviewed two bank tellers and a customer shortly after the bank

robbery. The witnesses provided the officers with descriptions of the alleged suspect. The

officers did not conduct a line up or a photo array. 

ANALYSIS

I. Defendant’s Motion, Seeking To Exclude In-Court Identifications Of Defendant

(D.E. No. 35)

Defendant asks the Court to preclude the in-court identification of Defendant by three

eyewitnesses of the bank robbery. Defendant alleges that an in-court identification of him

without a prior identification violates his Due Process rights. Specifically, Defendant argues that

the in-court identifications would be unduly suggestive because he will be the only AfricanAmerican defendant sitting at Counsel’s table. Defendant compares this to a “one man show

up.” Accordingly, Defendant seeks an evidentiary hearing in order for the Court to determine

whether the identification was reliable under a totality of the circumstances. 

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In response, the Government points out that a defendant has no constitutional right to

either a line-up or photo array. Moreover, the Government contends that the Due Process Clause

is only implicated in situations where a pretrial identification involved official misconduct. 

Thus, the Government maintains that Due Process is not triggered in situations where a trial

witness has not made any pretrial identification. 

A. Due Process

Due Process affords a criminal defendant protection “against the introduction of evidence

that results from an unreliable identification obtained through unnecessarily suggestive

procedures.” Roberts v. Bell, No. 08-CR-13362, 2013 WL 5448933, at * 3 (E.D. Mich Oct. 6,

2015) (citing Moore v. Illinois, 434 U.S. 220, 227 (1977)). A pre-trial procedure is

unconstitutional if “the confrontation conducted... was so unnecessarily suggestive and

conducive to irreparable mistaken identification that [the Defendant] was denied due process of

law.” Stovall v. Denno, 388 U.S. 293, 301-02 (1967). To put it more succinctly: “[i]t is the

likelihood of misidentification which violates a defendant’s right to due process.” Neil v.

Biggers, 409 U.S. 188, 198 (1972). For this reason, “[s]uggestive confrontations are

disapproved...” Id. 

A two-step analysis applies in determining whether or not identification evidence is

admissible. The first step requires the defendant to show that the pre-trial identification

procedure was impermissibly suggestive. U.S. v. Hill, 967 F.2d 226, 230 (6th Cir. 1992). If the

defendant meets this initial burden, the second step requires the trial court to determine whether,

under a totality of the circumstances, the testimony was nonetheless reliable and therefore

admissible. Id. Five factors are relevant in determining reliability: “(1) the opportunity to view

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the perpetrator during the crime; (2) the witness’s degree of attention to the perpetrator; (3) the

accuracy of the witness’s prior descriptions of the perpetrator; (4) the level of certainty

demonstrated by the witness when identifying the suspect; and (5) the length of time between the

crime and the identification.” Id. (quoting Biggers, 409 U.S. at 199-200). These factors are to

be weighed against “the corrupting effect of the suggestive identification itself.” Manson v.

Brathwaite, 432 U.S. 98, 114 (1977). “‘As long as there is not a substantial likelihood of

misidentification, it is the function of the jury to determine the ultimate weight to be given to the

identification.’” Id. (quoting U.S. v. Causey, 834 F.2d 1277, 1285 (6th Cir. 1987)). 

The Sixth Circuit in Hill has extended the Biggers analysis to situations where, as here,

the Government seeks an in-court identification of a defendant by an eyewitness who has never

before positively identified the defendant in person. Hill, 967 F.2d at 232. The Sixth Circuit’s

reasoning is instructive:

We hold that the Biggers analysis applies to such in-court identifications for the

same reasons that the analysis applies to impermissibly suggestive pretrial

identifications. The due process concerns are identical in both cases and any

attempt to draw a line based on the time the allegedly suggestive identification

technique takes place seems arbitrary. All of the concerns that underlie the

Biggers analysis, including the degree of suggestiveness, the chance of mistake,

and the threat to due process are no less applicable when the identification takes

place for the first time at trial. 

Id. 

Since Hill, the Supreme Court has clarified that Due Process “does not require a

preliminary judicial inquiry into the reliability of an eyewitness identification when the

identification was not procured under unnecessarily suggestive circumstances arranged by law

enforcement.” Perry v. New Hampshire, 132 S.Ct. 716, 718 (2012) (emphasis added). 

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The Government contends that Perry has invalidated the holding in Hill. Thus, the

Government maintains that because there has been no pretrial identification, there can be no Due

Process violation. The Court disagrees. In Perry, the issue was whether or not due process

prohibited the introduction of an out-of-court identification at trial. Id. at 718. The court

concluded that “[w]hen no improper law enforcement activity is involved... it suffices to test

reliability through the rights and opportunities generally designed for that purpose, notably the

presence of counsel at post-indictment lineups, vigorous cross-examination, protective rules of

evidence, and jury instructions on both the fallibility of eyewitness identification and the

requirement that guilt be proved beyond a reasonable doubt.” Id. at 721. The facts in Perry are

distinguishable in that they involved an out-of-court identification, whereas the facts in Hill did

not. The Sixth Circuit’s holding in Hill makes clear that there are two different types of

identifications: in-court identifications made for the first time at trial, and out-of-court

identifications introduced at trial. The Court reads Perry as applying only to the latter. 

In support of its position that the Due Process Clause applies only when there exists

allegations of police misconduct relating to pretrial identification, the Government relies on the

holdings of several post-Perry cases – all of which are not binding and most of which are

factually distinguishable. The Government argues that, with respect to Due Process, these cases

are concerned with police conduct. The Government believes that Perry bars an application of

the Due Process Clause here because there has been no pre-trial identification improperly

procured by law enforcement. The Government is correct in that there has been no pre-trial

identification of Defendant by the witnesses to be called. With that said, allegations of police

misconduct with respect to pre-trial identification procedures would have been impossible here. 

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The Government’s argument ignores the factual differences between Perry and Hill. The

Supreme Court in Perry did not make a ruling on the issue that was before the court in Hill:

whether or not Due Process required the suppression of an in-court identification made for the

first time at trial. See Hill, 967 F.2d. at 232. The Court reads Perry as applying to situations in

which an out-of-court identification has occurred. Moreover, the Government’s reliance on U.S.

v. Whatley, 719 F.3d 1206 (11th Cir. 2013) wholly disregards Hill. 

Ultimately, it appears that Perry’s holding does not apply to a situation where, as here, no

pre-trial identification procedure took place. To err on the side of caution, and because the Court

does not believe that Hill has been invalidated by Perry, the Biggers two-prong analysis shall be

applied to the case at hand. As the Sixth Circuit did in Hill, this Court assumes, without

deciding, that for purposes of this case, the in-court identification by these witnesses would be

impermissibly suggestive. Thus, the Court will hold an evidentiary hearing so that it can

proceed to the second step of the Biggers inquiry and determine whether, under the totality of the

circumstances, the testimony of each of the three witnesses at issue is nonetheless reliable.

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CONCLUSION

For the foregoing reasons, the Court shall GRANT Defendant’s Motion in Limine to the

extent that an evidentiary hearing shall be held on December 14, 2015. 

IT IS SO ORDERED.

S/Sean F. Cox 

Sean F. Cox, United States District Judge

Dated: December 10, 2015

I hereby certify that a copy of the foregoing document was served upon counsel of record

on December 10, 2015, by electronic and/or ordinary mail.

S/Jennifer McCoy 

Case Manager

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