A photo array is a group of photos, in this case five, that are simultaneously shown to witnesses to see if they recognize the perpetrator among the group.  This method is preferred over a single photo display - a practice widely condemned by the Court - because it is far less suggestive.  The point of this procedure is to see if the witness actually recognizes the culprit from the witness’s actual observations and uncontaminated memory.  For that reason, it is improper for the police to tell the witness who to pick or even to suggest which one of the five is the police suspect. 

Police Waited 5-10 Days Before Presenting the Photo Array to Witnesses

In this case, the photo array with Davis’ image was available for viewing on August 19 (neither Redd nor Collins'’s photos were included in any photo array).  Yet, none of the percipient witnesses were not shown the photo array until five to ten days later, after Davis’ highly-publicized surrendered on August 23. 

Instead, the Police Exposed Their "Suspect" to Every Witnesses

During that five to ten day window, the police prominently displayed wanted posters throughout Savannah – depicting the same photo of Davis.  That photo also appeared daily on the nightly news programs and in the print media.  And, the police used the same photo when they canvassed the neighborhood.  In the end, every witness was exposed to Davis’ photo – some multiple times and on a daily basis – prior to be shown the “official” photo array. 

The eyewitness identification procedures in this case were so unduly suggestive that a person completely unconnected to this crime could have easily picked the police suspect.  Prior to their selection, the witnesses were informed that Davis was the police suspect and were repeatedly exposed to the same photo of Davis which would later be used in the photo array. Given this highly suggestive process, it was inevitable that the witnesses would select the police suspect. 

Prior to viewing the photo array, witnesses participated in group reenactment of the crime. 

The reenactment took place in the Burger King parking lot at the detective’s behest five days after the shooting.  The reenactment was preceded by a short visit to the pool hall where police looked, in vain, for a .38 revolver Coles ultimately admitted he possessed on the night MacPhail was shot. The police then took Young, Collins, and Coles to the parking lot “and instructed them to position themselves where they were when Young was assaulted.  None of them seemed to agree on where they were standing when the assault occurred.”   Detective Ramsey’s police report, page 49.  So the police recruited Murray to join them to “see if she could place everyone in the positions that she saw them in when Young was assaulted.” Id.  She repositioned people according to her memory, but had trouble “putting a face” to the two men standing in front of Young.

What's wrong with this procedure?

It is nothing more than an attempt by the police to reconcile discrepancies among the witnesses and to generate “agreement” over where people were positioned.  The obvious danger of witness collaboration or any investigation technique which permits witnesses to “compare notes” is that it allows for witnesses to contaminate other witness’s memory, thereby undermining the integrity of the investigation.  Indeed, law enforcement agencies across the country recognize the dangers of allowing commingling of witnesses and specifically counsel against the practice.

Witnesses must be separated to prevent them from comparing recollections about how an event occurred. When a crime occurs, a sequence of acts takes place, usually in a matter of seconds.  Each witness sees and remembers different parts of the total event.  If witnesses have the opportunity to discuss the events with each other, individual, distinct recollections may merge.

Michael F. Brown, Interviewing Techniques in Criminal investigation: law and practice, Butterworth-Heinemann 2d Ed at p. 144 (2001).  

Implicit in this group collaboration, and, specifically, Coles and Collins' participation, was the clear message to the witnesses Murray and Young that the police considered neither Coles nor Collins the shooter.  It was just as improper for the police to suggest to the witnesses that neither Coles nor Collins were the shooter as it was for them to announce the culprit as Davis.  Moreover, this is precisely the type of post-event feedback that would greatly alter the witnesses’ memory – or “version,” in the case of an unscrupulous witness – of events; as it did in this case.

This reenactment, in fact, had a significant impact on the ultimate testimony of Murray and Redd.  Specifically, it enable Redd to get his story straight with what the other witnesses were reporting and, thereby, enabled the prosecutors to present a more "credible" witness.  Prior to the reenactment Redd conveniently claimed, contrary to all other witnesses,  that he was not even standing close enough to Young to strike him.   Redd subsequently modified his version to correspond with other witnesses at the reenactment; at trial he admitted standing face-to-face with Young, still demanding the beer and arguing when Young was struck. 

The reenactment also caused Murray to move away from her original statement – that the man who started the fight, ended it – and closer to the police theory that Davis inexplicably – without so much as word between Davis and Young – took up Redd’s fight.