• David A. Cmelik Law PLC

Facebook meetup murder conviction upheld over challenge to photo lineup


Today, the Iowa Supreme Court upheld a First Degree Murder conviction in State v. Booth-Harris over his challenge to a photo lineup.


In Booth-Harris, two men agreed on Facebook to meet for a fight. They did so. There was gunplay involving a larger group of men among them. One died of his wounds. Another, the Defendant herein, was treated for gunshot wounds at a hospital in a town nearby.

The identification process was not direct. Police initially showed an eyewitness a photo array that did not include Defendant. The witness did not identify anyone in the lineup as the shooter. Police then showed the witness a solitary photo of Defendant. But the witness also denied knowing who was in that photograph.

Police later showed to the witness a photographic array including five men and Defendant. The witness stated that he could not identify the shooter because of “ stuff he had on his head” and “his attire.” Police showed the witness another photographic array with five different men and Defendant and the witness became increasingly confident that the Defendant was the shooter. At trial, the witness pointed Defendant out as the shooter.

The Defendant challenged this eyewitness identification procedure as impermissibly suggestive, claiming a violation of his due process. The Court of Appeals affirmed stating that the process was not impermissibly suggestive and that other indicia of reliability existed to honor the out of court identification, including the witness’s opportunity to view the suspect.

The Iowa Supreme Court took the mater on further review. On this elevated appeal to the highest court in Iowa, the Defendant argued that the evolving research on photograph array identification was not taken into account by the current test to determine impermissible suggestibility.

The Court did not rule the social science out entirely but merely invited the bar association and a new jury instruction task force to evaluate the jury instructions and rules of evidence on the question of out of court identification.

Justice Waterman, writing for the court, gave a nod to the court’s more traditional analysis:

“Meanwhile, as always, defense counsel can cross-examine witnesses and argue the weight to be given their testimony. Counsel may also consider introducing expert testimony regarding the social science research. But we decline to defer to social science to raise our constitutional bar to admissibility. We trust Iowa juries to give the testimony appropriate weight.”

The Court was also mindful that the witness who identified the Defendant in the case at bar did not rush to identification:

“We do not find that the first photo misled [the witness] into making the subsequent identification. Watson did not initially identify Booth-Harris in the single photograph array, and he was careful not to select an individual whose facial features did not match his memory of the shooter.”

Justice Appel dissented, suggesting that honest jurors can be swayed improperly to the weight of impermissibly suggested out of court identifications.

“Wonderfully honest jurors often hold intuitive views about the accuracy of eyewitness testimony that are simply incorrect,” the dissent notes, adding:

“In fact, because it is one of the most powerful pieces of evidence that can be presented to a jury, eyewitness testimony is the leading cause of wrongful convictions.”

The dissent then took exhaustive pains to explain the science of out of court identification and how Iowa should follow other states that insist on greater protection under their respective state constitutions.

NOTE: David A. Cmelik Law PLC had no involvement in the Booth-Harris case


If you or a loved one have been arrested for a criminal offense in Cedar Rapids, Iowa City, or other Iowa community, contact us for a free initial criminal law consultation. Criminal law is all we do. David Cmelik, the firm principal, has over 17 years experience in over 4,250 cases ranging from simple misdemeanor assault to double homicide.

© 2020 by David A. Cmelik Law PLC