Were the viewings of Howard at the adjourned preliminary examinations so suggestive as to taint the identifications of him at the live lineup?

Question

Four "repo men" were towing a truck from a house at 4:00 a.m. on a morning in June when a man with a rifle on the porch of the house fired a shot, yelling "put the truck down." The repo men disengaged the truck. One called the police as the truck backed out of the driveway. The man on the porch pointed the rifle at the truck and ordered him to put the phone away. As the tow truck moved down the driveway toward the street, the shooter fired four or five more shots, hitting and killing one of the repo men. Two of the repo men described the shooter to the police soon after, and were shown photo arrays that included Frank Howard. Neither one picked him out and one repo man picked a filler. Howard was arrested in September. The preliminary examination, scheduled in September, was twice postponed, and held in October. At each session Howard was brought out of lockup and seated at the defense table. At the first two sessions, it is not clear that any of the witnesses had a significant opportunity to view Howard. At neither proceeding did law enforcement officers say anything to the witnesses to suggest that Howard was the killer. About one hour following the second adjournment, the police conducted a lineup with defense counsel present. Howard was three inches taller than the fillers and was the only suspect with the highfade haircut that the witnesses later said was distinctive. The three surviving repo men were separately asked to identify the killer. After viewing the lineup, each witness was taken to a different room in order to prevent any communication between them. All three picked Howard as the killer.
What will be an ideal response?

Answer 1

No
In certain circumstances, a viewing at a preliminary examination could be suggestive. For example, to walk a defendant in shackles and with a U.S. Marshal at each side before an identification witness is impermissibly suggestive. In the cases here, one repo man only saw the back of Howard's head, and for him the preliminary examination was not suggestive. As for the other two, there was suggestiveness inherent in their knowing that Howard was the defendant, but the more important question is whether the identifications based on their observations at the crime scene were reliable even if the viewing at the adjourned preliminary examinations were suggestive. Applying the Manson v. Brathwaite (1977) factors, the court found the in-court identifications reliable: one repo man had a good opportunity to view the shooter, saw him three times, was as close as three to six feet; he was more attentive because of the stress of the crime; the descriptions given were generally accurate; testified with certainty at the trial; and "[t]hree months is not a great length of time between an observation and identification." As for the height differential at the lineup, this factor, standing alone, is usually not enough to make a lineup procedure suggestive. Howard claims he was three inches taller than the fillers. "On balance, we do not find such a discrepancy to have infected the process." With respect to his haircut, "unless the witness described the distinctive characteristic to the police beforehand, that characteristic is not a basis for finding a lineup unduly suggestive," and the repo men did not describe the shooter's hair style after the killing. One judge dissented.