¶1dissenting:
¶2I do not agree with the majority of the court. I believe that the extra judicial identification process considered as a whole was unduly suggestive, irreparably prejudicial and not warranted by any practical imperative.
¶3I am in agreement with the initial holding of the majority that defendant could and did understandably waive appointment of counsel and that such waiver was, as asserted by the majority, broad enough to comply with the requirements of U.S. v. Zeiler, 427 Fed.2d 1305. In this connection it seems to me that the result in Zeiler is in accord with the previous line of identification and representation cases in recognizing the critical nature of extra judicial identification and the problems relating thereto.
¶4Simmons v. United States, 390 U.S. 377, 19 L.Ed.2d 1247 and People v. Caldwell, 117 Ill.App.2d 64, 253 N.E.2d 904, discuss at length the potential unreliability and subsequent consequences of photographic identification. Each case deals with identification made in advance of any suspect being taken into custody and each recognizes that the practical aid in law enforcement out weighs the adverse side effects which may result.
¶5The same practical considerations do not exist when a suspect is already in custody and available for identification in person, if identification is thought necessary and appropriate. In People v. Caldwell, supra, the Court rejected defendant’s contention that his identification by photographs before being taken into custody was erroneous and this is a specific issue decided. In discussing the general field of identification and particularly the observations of Wall, the court as dicta quoted with approval the following observations by Wall, "The most obvious justification for the use of photographs is the absence of any knowledge as to the identity of the criminal. Without the aid of the rogue's gallery, the crime would most likely go unsolved; therefore, the proper use of photographs in such situations has always been approved, even by English courts, which are quite strict where identification procedures are concerned. Where the suspect is known and in custody, however, tire showing of photographs to the witnesses is usually improper, even when the procedure used in showing them is a fair one. This point has been made in a number of English and Commonwealth cases.”. By recognizing the distinction between photographic identification of a suspect in custody and one not in custody the Caldwell case offers more appropriate support for the proposition that the photographic identification in this case was impermissively suggestive rather than the contrary view of the majority. The Simmons case likewise appears to me to support a position contrary to that of the majority even though in its particular holding it approves photographic identification before apprehension of the suspect. It does so though only because of what it believes more compelling considerations i.e. benefit to the investigatory process and at least by implication that absent such considerations a different conclusion should follow. Additionally the court in Simmons noted that it was not approving all photographic identification preserving the right to consider that such identification might be unduly suggestive under circumstances not justifying the resulting prejudice.
¶6The majority criticizes the photographic identification process as employed in this case but declines to give such criticism any meaningful effect. To suggest as does the majority, the defendant faffed to sustain his burden of establishing prejudice from the identification procedure is belied both by the criticism of the procedure and its proved inadequacy. Where, as in the case at bar, the defendant was in custody and the eye witness made an identification of defendant based on photographs but the fairness of such identification can not be determined because the photographs were not preserved, it follows that such procedure could have been and therefore should be deemed unduly suggestive.
¶7An extra judicial identification procedure initially unduly suggestive is not rendered harmless by thereafter holding a proper procedure. For example, if a subject in custody is identified in a one man line up, perhaps without his knowledge, the fast that he is thereafter identified in a proper line up does not vitiate the harmful effect of the initial improper identification. Where a proper lineup follows an unduly suggestive photographic identification likewise it can not obviate the initial prejudice. No reason was advanced by the State justifying or explaining the exhibition of photographs to the witness prior to conducting a line up when the suspect was in custody. The only apparent reason for such procedure is the reason for which such practice is condemned namely the creation of a predisposition by the witness to later re-identify the suspect. (See U.S. v. Zeiler, 427 F.2d 1305.) As observed in Palmer v. Peyton, 359 F.2d 199, the State may not rely on an identification secured by a process in which the search for truth is made secondary to the quest for a conviction.
¶8In the case at bar the potential for misidentification is enhanced because the witness is a twelve year old girl probably more susceptible to suggestion and less capable of discerning the presence of suggestion. The effect of the prior out of court identification as applied to this young witness becomes even more serious in light of the questions and answers of the witness intending to establish her competence. In emphasizing whether or not the witness had any fear of the consequences of telling a lie the court reinforced the witness’s extra judicial identification of defendant. To the extent that falsehood might be involved, it had already occurred, and, if such existed, the witness would be discovered in her falsehood by failing to identify defendant during the court proceeding. This aspect suggests one of the major problems of identification namely it is not merely the truthfulness of the testimony which is involved but rather the probative value of the observational process. An “irrefutable” identification may be just as wrong or mistaken when the result of an honest belief as when the result of deceit.
¶9In view of the nature of the circumstances I see no practical way of rehabilitating the sole identification witness and consequently I believe a conviction based thereon ought to be reversed.