Small v. State ( 2019 )


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  • Malik Small v. State of Maryland, No. 19, September Term, 2018. Opinion by Greene, J.
    CRIMINAL LAW – CRIMINAL PROCEDURE – EYEWITNESS IDENTIFICATION –
    PHOTO ARRAY
    The Court of Appeals reviewed the long-standing Manson-Jones framework, which is the
    proper test for assessing the admissibility of evidence of an extrajudicial identification
    procedure that is challenged on due process grounds. Applying the Manson-Jones test to the
    present case, the Court determined that the second of two photo array identification procedures,
    through which the victim identified Petitioner in a photo as the perpetrator of the crime, was
    suggestive. It was suggestive because Petitioner’s photo was emphasized during the first photo
    array, and then Petitioner was the only person from the first array who was repeated in the
    second array. Nonetheless, the victim’s identification had sufficient indicia of reliability, under
    the totality of the circumstances, to overcome the taint of that suggestion. Therefore, whether
    or not the identification was reliable was ultimately a question for the jury. Petitioner’s motion
    to suppress evidence of the pretrial identification on due process grounds was properly denied.
    The Court of Special Appeals’ judgment, which affirmed the Circuit Court for Baltimore City’s
    ruling on Petitioner’s motion to suppress, is affirmed.
    Circuit Court for Baltimore City                                                                IN THE COURT OF APPEALS
    Case No. 115191006
    Argued: October 10, 2018                                                                                 OF MARYLAND
    No. 19
    September Term, 2018
    ______________________________________
    MALIK SMALL
    v.
    STATE OF MARYLAND
    Barbera, C.J.
    Greene,
    *Adkins,
    McDonald,
    Watts,
    Hotten,
    Getty,
    JJ.
    ______________________________________
    Opinion by Greene, J.
    Barbera, C.J, McDonald, J. and Adkins, J.,
    concur.
    ______________________________________
    Filed: June 24, 2019
    *Adkins, J., now retired, participated in the
    Pursuant to Maryland Uniform Electronic Legal
    Materials Act
    (§§ 10-1601 et seq. of the State Government Article) this document is authentic.
    hearing and conference of this case while an
    2019-06-24 11:02-04:00                                 active member of this Court; after being recalled
    pursuant to the MD. Constitution, Article IV,
    Section 3A, she also participated in the decision
    Suzanne C. Johnson, Clerk
    and adoption of this opinion.
    Ordinarily, the reliability of relevant evidence is a matter committed to the province
    of the jury.   There may, however, be a reliability question concerning evidence of
    eyewitness identifications challenged on due process grounds. In such cases, the court will
    review an identification’s reliability in the first instance if law enforcement procured the
    identification utilizing suggestive procedures. The matter before this Court concerns such
    a due process reliability inquiry.
    Petitioner Malik Small (“Petitioner” or “Mr. Small”) alleges that evidence of an out-
    of-court identification procedure, through which the victim of an assault identified
    Petitioner as the perpetrator of the crime, should have been suppressed because it violated
    his right to due process of law. We begin by reviewing and reaffirming the well-settled
    test for assessing the admissibility of evidence of extrajudicial eyewitness identifications.
    Applying that test to the facts of this case, we conclude that the challenged identification
    contained sufficient indicia of reliability to overcome the suggestive nature of the pretrial
    identification procedures. Therefore, we shall affirm the judgment of the Court of Special
    Appeals.
    FACTUAL & PROCEDURAL BACKGROUND
    On June 17, 2015, a man tried to rob, and ultimately shot, Ellis Lee (“Mr. Lee”) at
    a bus stop in Baltimore City. Following the incident, the Baltimore City Police Department
    administered two photo arrays to Mr. Lee, which resulted in his identification of Petitioner
    Malik Small as the assailant. The State charged Mr. Small with a 10-count indictment in
    the Circuit Court for Baltimore City. Before the matter proceeded to trial, Mr. Small moved
    to suppress evidence of the two extrajudicial photographic array identification procedures.
    On March 18, 2016, the Circuit Court for Baltimore City held a suppression hearing to
    assess the admissibility of evidence of the identification procedures.
    The Suppression Hearing
    At the outset, the suppression court ruled that evidence of the first photo array could
    not be admitted by the State against Mr. Small at his trial.1 The State and Mr. Small’s
    counsel were, however, permitted to produce evidence of the first array during the
    suppression hearing in order to provide context for the second photo array. The hearing
    proceeded on the question of whether the second photo array would be admissible in
    evidence at Mr. Small’s trial.
    During the hearing, Mr. Lee recalled the incident that occurred on June 17, 2015.
    He testified that, at 2:00 a.m., he was sitting at a bus stop on Northern Parkway in Baltimore
    City looking at his cell phone when a man approached him. The man stood approximately
    one foot away from Mr. Lee, pointing a gun at Mr. Lee and covering the bottom portion of
    his face with a white T-shirt. The man said, “Let me get your money.” Mr. Lee emptied
    his pockets and told the man that he did not have any money. The man said, “Run, bitch,”
    so Mr. Lee ran away. As Mr. Lee fled, the man fired the gun, and one bullet struck the
    back of Mr. Lee’s right leg. Mr. Lee made it to Gittings Avenue where he was met by an
    ambulance that transported him to the emergency room at Johns Hopkins Hospital.
    While describing the incident during the suppression hearing, Mr. Lee testified that
    1
    The court suppressed evidence of the first photo array because Detective Stanley Ottey,
    the detective who administered the first photo array, was not available to testify at the
    suppression hearing. The parties do not challenge the suppression court’s ruling,
    suppressing evidence of the first photo array.
    2
    he noticed the gun before he saw the face of the man holding it. The assailant, Mr. Lee
    said, was covering the bottom portion of his face up to his nose with a white T-shirt, but
    his neck was exposed. Mr. Lee recalled that it was dark outside, but there was a very dark
    orange street light shining on the man, which made it “kind of easier to see him.” His
    interaction with the assailant, Mr. Lee estimated, lasted “two minutes at most.”
    At the hospital, Mr. Lee was interviewed by three detectives, including Detective
    Matthew DiSimone, the lead investigator on the case. Detective DiSimone testified that
    Mr. Lee described the assailant as “a black male, light skin, believed he had seen him
    before, a light [T]-shirt, tattoo on the right side of his neck, 5’8”, regular sized, a short
    haircut. He held the bottom of his shirt up over his face, blue jeans, block letter tattoo on
    neck, had letter ‘M’ in it.” Mr. Lee believed he had seen the assailant twice before the
    incident at Staples, where Mr. Lee worked, because he recognized the assailant’s voice and
    tattoo. Mr. Lee did not describe their interactions at Staples, and he did not know the
    assailant by name.
    After Mr. Lee was released from the hospital, Detective DiSimone and Mr. Lee
    revisited the scene of the crime. Then, they drove to the Northern Police District.
    According to Detective DiSimone, Mr. Lee gave another description of the assailant at the
    police station. Mr. Lee described the assailant as “a light brown, black male, 5’8”, regular
    sized, with a scraggly beard, a tattoo on his neck.” He also described the tattoo “in detail,”
    as being “[b]lock styled cursive script, bold, not dull, containing multiple letters and at
    least one of them was an ‘M.’”
    Detective DiSimone used a police database to compile mugshots to be included in
    3
    a “photo array identification procedure.”2 To compile the array, he searched for men with
    light brown complexions and beards, who were between 5’6” and 5’8”. He did not look
    for men with neck tattoos. Ultimately, the first array included six pictures – Petitioner’s
    photo and five filler photos.3 Detective DiSimone included one front-facing photo of each
    person in the first array in order to keep the tattoo out of view. “[He] felt that the tattoo
    was described in so much detail that it would be leading if [he] put the tattoo in the picture.”
    Despite Detective DiSimone’s intentions, the “M” tattooed on Petitioner’s neck was plainly
    visible in Petitioner’s photograph.4 Petitioner was the only person depicted in the first
    array who had a visible neck tattoo.
    After compiling the array, Detective DiSimone printed the six photographs and
    array instructions, which were to be read to Mr. Lee. He gave the photos and instructions
    to Detective Stanley Ottey, the administrator for the first photo array. A blind procedure5
    was used to administer the first photo array. Detective Ottey was not involved in the
    2
    A photo array identification procedure occurs when “an array of photographs, including
    a photograph of a suspect and additional photographs of other persons not suspected of the
    offense, is displayed to an eyewitness in hard copy form or by computer for the purpose of
    determining whether the eyewitness identifies the suspect as the perpetrator.” Md. Code
    Ann., Public Safety § 3-506.1(a)(8) (2003, 2018 Repl. Vol.) (“PS”).
    3
    A filler, in the context of a photo array, is “a photograph of a person who is not suspected
    of an offense and is included in an identification procedure.” PS § 3-506.1(a)(6).
    4
    This fact is apparent from viewing the first array, the photographs for which were
    collectively admitted into evidence during the suppression hearing.
    5
    A blind procedure “means the administrator [i.e. the person conducting the procedure]
    does not know the identity of the suspect.” PS § 3-506.1(a)(3).
    4
    investigation, and neither Detective Ottey nor Mr. Lee was advised of the identity of the
    suspect. Detective Ottey administered the first photo array at 8:37 a.m. During the
    procedure, Detective Ottey made notes about Mr. Lee’s statements. In reference to
    Petitioner’s photo, Detective Ottey wrote that Mr. Lee said he “looks like [the assailant],
    doesn’t think it’s him.”
    Mr. Lee testified that during the first array, “[he] picked out one who kind of looked
    like [the assailant], but [he] wasn’t too sure.” He remembered seeing “[t]he tattoo on the
    neck, [he] just related the two . . . it look[ed] pretty much like the same tat[too] [he] saw
    [during the incident].” Yet, Mr. Lee explained that the assailant was covering his face
    during the incident, so Mr. Lee said, “I’m not going to give you 100 percent of somebody’s
    life in my control . . . . I gave him in terms of 80 percent sure.” The parties stipulated to
    the fact that Mr. Lee could not make a positive identification during the first array.
    After the first array, Mr. Lee gave another statement to Detective DiSimone. Then,
    Detective DiSimone compiled the second photo array. Detective DiSimone believed that
    “if a second array was shown containing side profile pictures, which gave a view of the
    tattoo, it might assist in . . . identification.” To compile the second array, Detective
    DiSimone searched for photos of men with light brown skin and a beard. This time, he
    also looked for photos of men with a tattoo on their neck. He explained that the database
    had a small selection of individuals with neck tattoos, so he did not specifically look for
    tattoos with letters. Ultimately, the second array included twelve pictures – two photos6
    6
    One photo showed the person facing front, and the other photo showed his right profile.
    5
    each of six individuals. Petitioner was included with five new fillers, making Petitioner
    the only individual from the first array who was repeated in the second array.7 All of the
    fillers in the second array had a tattoo on their neck.8 In addition to Petitioner, at least one
    filler had a tattoo that contained letters. None of the fillers had a tattoo with the letter “M”
    in it.
    The second array was administered by Sergeant Detective Ethan Newberg using a
    blind procedure. Sergeant Newberg was not involved in the investigation, and he did not
    know who the suspect was. Likewise, Mr. Lee was not advised whom law enforcement
    suspected was the assailant. Sergeant Newberg conducted the procedure at approximately
    11:45 a.m. in an office where only he and Mr. Lee were present. Sergeant Newberg
    explained that he read Mr. Lee a set of array instructions, then he showed Mr. Lee all twelve
    photographs.      During the procedure, Sergeant Newberg made notes of Mr. Lee’s
    statements. In reference to Petitioner’s photo, Sergeant Newberg testified that, according
    to his notes, Mr. Lee said, “That’s him. That’s who shot me.”
    Mr. Lee testified that before the second array, he was told that he was being shown
    more photos “to make sure this was the same person.” Additionally, he only remembered
    7
    A different photo of Petitioner was used in the second array than the first array. In both
    photos, Petitioner is depicted with practically the same facial expression, facial hair, neck
    tattoo, and skin tone. In the first array, Petitioner was depicted wearing a white T-shirt and
    looking directly at the camera. In the second array, Petitioner was depicted wearing a black
    T-shirt overtop of a gray T-shirt and looking slightly downward. Petitioner’s hair also
    appears slightly longer in the second array.
    8
    This fact is apparent from viewing the photographs in the second array, which were
    collectively admitted into evidence during the suppression hearing.
    6
    seeing Petitioner’s photograph during the second array.9 Mr. Lee went on to explain that
    although the assailant was covering his face, “the characters [Mr. Lee] saw on his neck and
    what [Mr. Lee] saw on the picture . . . matched.”
    On Petitioner’s photo, Mr. Lee wrote, “This is the same tattoo and face I remember
    robbing me and the man I remember shooting me. I also remember him from coming into
    my job [at Staples] on two different occasions.” Mr. Lee said that when he identified
    Petitioner as the assailant, he was 100% sure of his identification. Mr. Lee was confident
    in his identification because when he saw the tattoo, “[i]t was almost like a rush of memory
    from both Staples and what [he] remembered seeing that night.”
    Mr. Lee testified that two weeks later, he saw a man on a dirt bike whom he believed
    was the assailant. Mr. Lee had already been told that Mr. Small was arrested, but he called
    the police to report the man he saw. In response, Mr. Lee recalled being told, “That can’t
    be true. We already have the guy . . . he’s already confessed to it. You’re fine.”10
    9
    We interpret Mr. Lee’s testimony to mean that he did not remember seeing the filler
    photos, not that Mr. Lee was only shown Mr. Small’s photo during the second array.
    When summarizing the facts of this case, neither Mr. Small nor the State posited that Mr.
    Lee was only shown Mr. Small’s photos during the second array. Rather, Mr. Small stated
    that Mr. Lee “did not recall seeing any other photos in the second photo array, save for the
    photos of Mr. Small. However, the second array contained ten other photos.” (emphasis
    added). Moreover, we must view the facts in the light most favorable to the State.
    McFarlin v. State, 
    409 Md. 391
    , 403, 
    975 A.2d 862
    , 869 (2009). Therefore, we proceed
    with the understanding that Mr. Lee was, in fact, shown all twelve photos of all six
    individuals during the second photo array, but at the time of the suppression hearing he did
    not remember seeing the filler photos.
    10
    Mr. Small did not confess to the crime. Detective DiSimone and Sergeant Newberg were
    not aware of anyone from the Baltimore City Police Department telling Mr. Lee that Mr.
    Small confessed to the crime.
    7
    Sometime after June 17, 2015, Mr. Lee spoke with an Assistant State’s Attorney
    about his identification. During that conversation, Mr. Lee indicated that he was 70% sure
    about his identification. Mr. Lee could not articulate what caused his confidence level to
    decrease.
    At the conclusion of the suppression hearing, the presiding judge ruled that the
    second photo array was admissible. To reach this conclusion, the judge first considered
    whether the array was suggestive. She did not find it problematic that the individuals in
    the second photo array did not share the same tattoo or all have letters in their tattoos. The
    judge explained that it is not reasonable to expect the police to find similar-looking people
    who also have similar tattoos. The judge did, however, take issue with the timing of the
    first and second arrays. She explained:
    My problem is with the timing, with the fact that they showed
    [Mr. Lee] a picture of [Mr. Small] at 8:30 in the morning . . .
    [Mr. Lee] says, “I’m not sure that’s the guy,” and then they
    show him another photo array . . . approximately three hours
    later, and the only person that’s repeated in the second photo
    array is [Mr. Small]. That’s troubling.
    Nevertheless, the judge concluded that the second photo array was admissible
    because she found it reliable by clear and convincing evidence. She reasoned that “[Mr.
    Lee] knew who [Mr. Small] was. [Mr. Lee] had already seen him twice before. [Mr. Lee]
    recognized his voice.     It had nothing to do with the photograph.”          Therefore, the
    suppression court denied Mr. Small’s motion to suppress the second photo array.
    The Trial and Verdict
    The matter proceeded to trial before a jury in the Circuit Court for Baltimore City.
    8
    Ultimately, the jury found Mr. Small guilty of attempted robbery, second-degree assault,
    and reckless endangerment. Mr. Small was sentenced to eight years of incarceration. Mr.
    Small noted an appeal to the Court of Special Appeals.
    The Court of Special Appeals
    On appeal, the Court of Special Appeals reviewed, inter alia, the suppression
    hearing court’s ruling, denying Mr. Small’s motion to suppress the second photo array.
    Small v. State, 
    235 Md. App. 648
    , 668-91, 
    180 A.3d 163
    , 174-89 (2018). The intermediate
    appellate court reviewed Maryland and United States Supreme Court caselaw regarding
    due process challenges to extrajudicial identifications. 
    Id. As to
    the merits of Petitioner’s
    due process claim, the court first concluded that the second array was suggestive. 
    Id. at 680,
    180 A.3d at 176-84. Yet, the court determined that the identification had sufficient
    indicia of reliability to overcome the procedure’s suggestiveness. 
    Id. at 683-91,
    180 A.3d
    at 184-89. Therefore, the Court of Special Appeals affirmed the suppression hearing
    court’s denial of Mr. Small’s motion to suppress evidence of the second photo array. 
    Id. at 691,
    180 A.3d at 189.
    Mr. Small petitioned this Court for a writ of certiorari. We granted the petition on
    June 1, 2018. Small v. State, 
    459 Md. 399
    , 
    187 A.3d 35
    (2018). The issue now before
    this Court is whether the suppression court properly denied Petitioner’s motion to
    suppress.11
    11
    The question presented, as framed by Petitioner, is: Did the Court of Special Appeals err
    in holding that the pretrial identification of Petitioner, which the Court determined to be
    the product of an impermissibly suggestive procedure, was reliable?
    9
    PARTIES’ ARGUMENTS
    Petitioner contends that the suppression hearing court erred in denying his motion
    to suppress evidence of the second photo array because the identification procedure
    violated his right to due process of law. Petitioner challenges the Court of Special Appeals’
    reliability analysis.    Petitioner posits that the court erred in concluding that the
    identification was reliable and admissible.
    Respondent, the State of Maryland, argues that the suppression hearing court
    properly admitted, and the Court of Special Appeals properly affirmed admission of,
    evidence of Mr. Lee’s extrajudicial identification. According to Respondent, both courts
    properly analyzed the identification’s reliability and therefore properly denied Petitioner’s
    motion to suppress.
    Also before this Court is the brief submitted by amici curiae.12 Amici challenge the
    framework that Maryland courts apply for assessing due process challenges to pretrial
    identifications, which was articulated by the United States Supreme Court in Manson v.
    Brathwaite13 and adopted by this Court in Jones v. State.14 Amici contend that this
    framework does not adequately assess an identification’s reliability, and that we should
    revise this framework as, according to amici, many of our sister states have done.
    12
    Before this Court as amici curiae are the Innocence Project, Inc. and the University of
    Baltimore Innocence Project Clinic.
    13
    
    432 U.S. 98
    , 
    97 S. Ct. 2243
    , 
    53 L. Ed. 2d 140
    (1977).
    14
    
    310 Md. 569
    , 
    530 A.2d 743
    (1987), cert. granted, judgment vacated on other grounds,
    
    486 U.S. 1050-51
    , 
    108 S. Ct. 2815
    , 
    100 L. Ed. 2d 916
    (1988), conviction aff’d, sentence
    vacated and remanded, 
    314 Md. 111
    , 
    549 A.2d 17
    (1988).
    10
    DUE PROCESS CHALLENGES TO EXTRAJUDICIAL IDENTIFICATION
    PROCEDURES
    The right to due process of law is guaranteed by the Fifth Amendment and
    Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland
    Declaration of Rights. Webster v. State, 
    299 Md. 581
    , 599, 
    474 A.2d 1305
    , 1314 (1984).
    “Due process protects the accused against the introduction of evidence of, or tainted by,
    unreliable pretrial identifications obtained through unnecessarily suggestive procedures.”
    
    Jones, 310 Md. at 577
    , 530 A.2d at 747 (quoting Moore v. Illinois, 
    434 U.S. 220
    , 227, 
    98 S. Ct. 458
    , 464, 
    54 L. Ed. 2d 424
    (1977)). When an accused challenges the admissibility of
    an extrajudicial identification procedure15 on due process grounds, Maryland courts assess
    its admissibility using a two-step inquiry. 
    Id. The inquiry,
    in essence, seeks to determine
    whether the challenged identification procedure was so suggestive that the identification
    was unreliable. “[R]eliability is the linchpin[.]” 
    Manson, 432 U.S. at 114
    , 97 S. Ct. at
    2252, 
    53 L. Ed. 2d 140
    .
    In step one of the due process inquiry, the suppression court must evaluate whether
    the identification procedure was suggestive. 
    Jones, 310 Md. at 577
    , 530 A.2d at 747. The
    defendant bears the burden of making a prima facie showing of suggestiveness. See Smiley
    v. State, 
    442 Md. 168
    , 180, 
    111 A.3d 43
    , 50 (2015).
    If the court determines that the extrajudicial identification procedure was not
    15
    An extrajudicial identification procedure is one that is made outside of the courtroom.
    Webster v. State, 
    299 Md. 581
    , 589-90, 
    474 A.2d 1305
    , 1309 (1984). By contrast, a judicial
    or in-court identification occurs when the witness identifies the accused inside of the
    courtroom. 
    Id. 11 suggestive,
    then the inquiry ends and evidence of the procedure is admissible at trial.
    
    Jones, 310 Md. at 577
    , 530 A.2d at 747. If the court determines that the identification
    procedure was tainted by suggestiveness, then evidence of the identification is not per se
    excluded. Id.; Perry v. New Hampshire, 
    565 U.S. 228
    , 232, 
    132 S. Ct. 716
    , 720, 
    181 L. Ed. 2d 694
    (2012) (“An identification infected by improper police influence, our case law
    holds, is not automatically excluded.”). Rather, the suppression court must proceed to the
    second stage of the due process inquiry. 
    Jones, 310 Md. at 577
    , 530 A.2d at 747.
    In step two of the due process inquiry, the suppression court must weigh whether,
    under the totality of the circumstances, the identification was reliable. 
    Id. At this
    stage,
    the burden rests with the State to show that the identification was reliable by clear and
    convincing evidence. 
    Smiley, 442 Md. at 180
    , 111 A.3d at 50. The United States Supreme
    Court and this Court have previously identified five factors that may be used to assess
    reliability. The factors include the witness’s opportunity to view the criminal at the time
    of the crime, the witness’s degree of attention, the accuracy of the witness’s description of
    the criminal, the witness’s level of certainty in his or her identification, and the length of
    time between the crime and the identification. 
    Jones, 310 Md. at 577
    -78, 530 A.2d at 747
    (citation omitted); Neil v. Biggers, 
    409 U.S. 188
    , 199-200, 
    93 S. Ct. 375
    , 382, 
    34 L. Ed. 2d 401
    (1972). Ultimately, the court must determine whether the identification is admissible
    by “weigh[ing] the reliability of the identification against the ‘corrupting effect’ of the
    suggestiveness.” 
    Jones, 310 Md. at 578
    , 530 A.2d at 747 (citation omitted).
    Amici urge us to abandon this legal framework and endorse a revised approach that
    is consistent with the New Jersey Supreme Court’s decision in State v. Henderson, 
    27 A.3d 12
    872 (N.J. 2011). In Henderson, the New Jersey Supreme Court undertook an extensive
    review of a court-appointed special master’s recommendations about the factors that many
    experts believe impact a witness’s ability to identify the perpetrator of a crime. 
    Id. Based on
    these recommendations, the court delineated a list of factors that trial courts may
    consider when assessing suggestiveness and reliability.16 
    Id. at 920-21.
    In addition, the
    16
    The court explained that system variables should be explored when analyzing
    suggestiveness. State v. Henderson, 
    27 A.3d 872
    , 920 (N.J. 2011). System variables are
    factors “which are within the control of the criminal justice system.” 
    Id. at 895.
    For
    instance, the person administering the array should not know the suspect’s identity. 
    Id. at 896-97,
    920. The witness should be instructed that the suspect may or may not be in the
    array. 
    Id. at 897,
    920. The array should include at least five fillers who resemble the
    suspect. 
    Id. at 898,
    920. The witness should not be given feedback, or shown a suspect or
    filler multiple times. 
    Id. at 899-00,
    920. The witness’s level of confidence should be
    recorded promptly, and an inquiry should be made into whether the witness spoke with
    anyone about the identification. 
    Id. at 920-21.
    The witness may have initially made no
    identification or a different identification during an identification procedure. 
    Id. at 921.
    Id. Lastly, the 
    court cautioned that showups are inherently suggestive. 
    Id. at 903.
    The court explained that, when analyzing reliability, courts should consider estimator
    variables. 
    Id. at 921.
    Estimator variables are factors “over which the legal system has no
    control.” 
    Id. at 895.
    For instance, the witness’s level of stress may impact reliability. 
    Id. at 904,
    921. In addition, facts about the encounter may affect reliability, such as the
    presence of a weapon, lighting, duration, and distance between the witness and the
    perpetrator. 
    Id. at 904-06,
    921. Characteristics of the witness and perpetrator may be
    pertinent, such as the witness’s level of intoxication and if the perpetrator was wearing a
    mask. 
    Id. at 906-07,
    921. The court said that the amount of time between the crime and
    the identification may impact reliability. 
    Id. at 907,
    922. It explained that cross-racial
    identifications may be less reliable. 
    Id. at 907.
    Finally, the court noted that many estimator
    variables overlap with the five Biggers reliability factors, and it included the five factors in
    its non-exhaustive list of estimator variables that may be used to evaluate reliability. 
    Id. at 921-22.
    13
    court revised the Manson framework.17
    The case at bar is not this Court’s first opportunity to review Maryland’s Manson-
    Jones framework in light of the New Jersey Supreme Court’s decision in Henderson. See
    
    Smiley, 442 Md. at 184
    , 111 A.3d at 52. In Smiley, we had the opportunity to adopt New
    Jersey’s framework for assessing the admissibility of eyewitness identifications, but we
    did not do so. 
    Id. “We decline[d]
    to do so, because this Court, as well as the Court of
    Special Appeals, have consistently reaffirmed application of the procedure in [] Jones for
    examining challenges to the admissibility of eyewitness identifications.” 
    Id. Consistent with
    our decision in Smiley, we decline the invitation to abandon the Manson-Jones
    17
    Under the revised Henderson approach, first the defendant bears the burden of setting
    forth some evidence, tied to a system variable, that indicates suggestiveness. 
    27 A.3d 827
    ,
    920 (2011). Second, the State must show that the eyewitness identification is reliable,
    accounting for system and estimator variables. 
    Id. Consistent with
    Manson, the ultimate
    burden “remains on the defendant to prove a very substantial likelihood of irreparable
    misidentification.” 
    Id. (citing Manson,
    432 U.S. at 
    116, 97 S. Ct. at 2254
    , 53 L.Ed.2d at
    155) (citation omitted). The court should suppress the identification if the totality of the
    circumstances indicate “a very substantial likelihood of irreparable misidentification[.]”
    
    Id. It appears
    that, under Henderson’s revised framework, reliability factors become relevant
    earlier in the court’s inquiry. See 
    id. at 919
    (explaining that “the revised framework
    should allow all relevant system and estimator variables to be explored and weighed at
    pretrial hearings when there is some actual evidence of suggestiveness[.]”). Under
    Manson’s framework, the court must conclude that the defendant made a prima facie
    showing of suggestiveness before reliability factors become relevant. Smiley v. State, 
    442 Md. 168
    , 180, 
    111 A.3d 43
    , 50 (2015); see also Webster v. State, 
    299 Md. 581
    , 620, 
    474 A.2d 1305
    , 1325 (1984) (concluding that because the “lineup was not one whit suggestive”
    reliability was not at issue). Under Henderson, as long as the defendant produces some
    evidence of suggestiveness, then the court explores all relevant indicators of suggestiveness
    and reliability in order to determine whether there is a very substantial likelihood of
    irreparable 
    misidentification. 27 A.3d at 919
    .
    14
    framework, which Maryland courts use, and have used for decades, to assess due process
    challenges to extrajudicial identification procedures.18 The reliability inquiry remains to
    be whether, under the totality of the circumstances, the challenged identification was
    reliable, despite the suggestiveness in the identification procedure.
    The focus of the reliability assessment is on the totality of the circumstances, and
    such an inquiry is necessarily a comprehensive one. Suppression courts can and ought to
    consider the myriad of facts and circumstances presented by a particular case, which may
    impact the identification’s reliability. Wood v. State, 
    196 Md. App. 146
    , 162, 
    7 A.3d 1115
    ,
    1124 (2010) (“A reliability appraisal . . . is extremely fact-specific. It is a multi-factored
    determination that, with the help of guidelines, looks to the totality of the circumstances.”).
    The court’s assessment should be guided by the circumstances before it. In addition to the
    five Biggers19 reliability factors, the suppression court may find that the factors identified
    18
    Additionally, we disagree with amici’s contention that the Maryland General Assembly’s
    2014 amendment to PS § 3-506 counsels in favor of abandoning the Manson-Jones
    framework. Through § 3-506, the Legislature imposed procedural requirements upon law
    enforcement agencies, applicable when conducting eyewitness identification procedures.
    See generally PS §§ 3-506 and 3-506.1. See also Dep’t. Legis. Servs., Fiscal and Policy
    Note Revised, House Bill 1200 (2014 Sess.) (describing the changes as being procedural
    in nature). The Legislature recognized that the statute affords defendants the ability to
    challenge identifications on statutory grounds, in addition to due process grounds. 
    Id. Amici correctly
    note that in the statute’s legislative history, the Legislature referenced the
    New Jersey Supreme Court’s decision in Henderson. 
    Id. So too,
    however, did the General
    Assembly reference the United States Supreme Court’s decision in Perry v. New
    Hampshire. 
    Id. In Perry,
    the Supreme Court reaffirmed that Manson is the appropriate
    test to apply when assessing due process challenges to eyewitness identifications. 
    565 U.S. 228
    , 232, 
    132 S. Ct. 716
    , 720, 
    181 L. Ed. 2d 694
    (2012). Thus, we find no basis for
    discerning a legislative intent to dismantle our long-standing due process jurisprudence.
    19
    
    409 U.S. 188
    , 
    93 S. Ct. 375
    , 
    34 L. Ed. 2d 401
    (1972).
    15
    in Henderson, many of which overlap with the Biggers factors, and other factors are
    relevant to the court’s evaluation.20 See, e.g., United States v. Greene, 
    704 F.3d 298
    , 308-
    10 (4th Cir. 2013) (applying the Henderson variables in conjunction with the five Biggers
    factors). Therefore, although we do not revise this Court’s jurisprudence for assessing the
    admissibility of eyewitness identifications, we do recognize the breadth that is inherent in
    an inquiry that hinges upon the totality of the circumstances.21 Having established the
    appropriate test for analyzing Petitioner’s due process challenge, we now apply the
    aforementioned principles to the facts of this case.
    STANDARD OF REVIEW
    Upon reviewing a suppression hearing court’s decision to grant or deny a motion to
    suppress, we limit ourselves to considering the record of the suppression hearing.
    McFarlin v. State, 
    409 Md. 391
    , 403, 
    975 A.2d 862
    , 868-69 (2009). We accept the
    20
    To the extent that expert testimony is required to explain how a particular circumstance
    may have impacted the eyewitness’s identification, the admissibility of the expert’s
    testimony is governed by Maryland Rule 5-702. 
    Smiley, 442 Md. at 184
    , 111 A.3d at 52-
    53 (2015) (“[I]f expert testimony regarding an eyewitness identification is offered, its
    admissibility is governed by Maryland Rule 5-702 and Bomas v. State, 
    412 Md. 392
    , 
    987 A.2d 98
    (2010)).
    21
    To be sure, we are not, as the Concurring Opinion suggests, “dismiss[ing] decades of
    extensive social science research[.]” Small v. State, No. 19, 2018 Term, slip op. at 1
    (Concurring Opinion, Barbera, C.J.). Rather, to the extent that there is an ambiguity in
    Maryland law, we are clarifying that courts analyzing the suggestiveness and reliability of
    an eyewitness identification should consider any system and estimator variables that are
    relevant under the circumstances of a particular case. Which variables, if any, are relevant
    under the circumstances will, of course, depend in all cases upon the evidence that the
    parties place on the record during the adversarial proceeding. As such, we acknowledge
    that the Manson-Jones framework is sufficiently flexible to account for the current state
    of, and even future developments in, social science research.
    16
    suppression hearing court’s factual findings and determinations regarding the credibility of
    testimony unless they are clearly erroneous. 
    Id. at 403,
    975 A.2d 869
    . Findings cannot be
    clearly erroneous “[i]f there is any competent material evidence to support the factual
    findings of the trial court[.]” YIVO Institute for Jewish Research v. Zaleski, 
    386 Md. 654
    ,
    663, 
    874 A.2d 411
    , 416 (2005). The evidence and inferences reasonably drawn therefrom
    are viewed in the light most favorable to the prevailing party. 
    McFarlin, 209 Md. at 403
    ,
    975 A.2d at 869. Legal conclusions are reviewed de novo. 
    Id. We independently
    apply
    the law to the facts to determine whether a defendant’s constitutional rights have been
    violated. 
    Id. DISCUSSION A.
    Suggestiveness
    First, we review whether Petitioner made a prima facie showing that the second
    photo array procedure was suggestive. Before this Court, the parties agree that the
    procedure was suggestive. Nonetheless, we conduct our own constitutional evaluation of
    the array in order to provide guidance primarily to Maryland courts and law enforcement.
    An identification procedure is properly deemed suggestive when the police “[i]n
    effect . . . repeatedly sa[y] to the witness, ‘This is the man.’” 
    Jones, 310 Md. at 577
    , 530
    A.2d at 747 (citing Foster v. California, 
    394 U.S. 440
    , 443, 
    89 S. Ct. 1127
    , 
    22 L. Ed. 2d 402
    (1969)). The impropriety of suggestive police misconduct is in giving the witness a clue
    about which photograph the police believe the witness should identify as the perpetrator
    during the procedure. See Conyers v. State, 
    115 Md. App. 114
    , 121, 
    691 A.2d 802
    , 806
    (1997), cert. denied, 
    346 Md. 371
    , 
    697 A.2d 111
    (1997) (“The sin is to contaminate the
    17
    test by slipping the answer to the testee.” (emphasis omitted)).
    In the context of a photographic array, the array’s composition may, for instance,
    signal to the witness which photo to select. 
    Smiley, 442 Md. at 180
    , 111 A.3d at 50
    (citations omitted). This Court has said that the composition of a photo array “to be fair
    need not be composed of clones.” 
    Id. at 181,
    111 A.3d at 50 (citations omitted). Though,
    the individuals in the array should resemble each other. Webster, 
    299 Md. 581
    , 620, 
    474 A.2d 1305
    , 1325 (1984). Concerns may arise when one individual’s photograph is shown
    to a witness multiple times or somehow stands out from the other photos in the array.
    Simmons v. United States, 
    390 U.S. 377
    , 383-94, 
    88 S. Ct. 967
    , 971, 
    19 L. Ed. 2d 1247
    (1968) (explaining that if a witness sees “the pictures of several persons among which the
    photograph of a single such individual recurs or is in some way emphasized . . . the witness
    thereafter is apt to retain in his memory the image of the photograph rather than of the
    person actually seen[.]”).
    This Court has not had occasion to address whether depicting an individual’s tattoo
    in a photo array may render the array suggestive. The Court of Special Appeals has,
    however. See, e.g., Sallie v. State, 
    24 Md. App. 468
    , 
    332 A.2d 316
    (1975). In Sallie, an
    eyewitness to a robbery described one of the robbers as having a diamond-shaped mark on
    his right cheek. 
    Id. at 470,
    332 A.2d at 317. Law enforcement showed the eyewitness a
    photo array, in which Louis Sallie was depicted with a diamond-shaped mark on his cheek.
    
    Id. at 471,
    332 A.2d at 318. The witness identified Mr. Sallie as the perpetrator, at least
    in part because of the mark. 
    Id. On appeal,
    Mr. Sallie argued the photo array was
    suggestive because he was the only person pictured with a diamond-shaped mark on his
    18
    right cheek. 
    Id. at 472,
    332 A.2d at 318. Based on the alleged suggestiveness in the photo
    array, Mr. Sallie argued that the eyewitness’s in-court identification of Mr. Sallie was
    tainted and, thus, inadmissible. 
    Id. The court
    reviewed the photo array for suggestiveness. 
    Id. Although the
    court
    determined that the mark was a unique identifying feature, the court explained:
    Every individual is unique. The mouth, the lips, the teeth, the
    chin, the cheeks, the nose, the eyes, the forehead, the ears, the
    hair, or any combination of two or more of those and other
    features, make every individual unique. They make him
    different from all others. They are the basis upon which any
    person is visually distinguished from other persons. The more
    subtle the distinctions, the more difficult the identification, and
    the greater potential for error.
    
    Id. at 472,
    332 A.2d at 318. The court reasoned that the burglar’s distinctive mark could
    have exonerated Mr. Sallie, but it implicated him because the burglar and Mr. Sallie both
    had the unique mark. 
    Id. The mark,
    therefore, made the identification not only “inevitable”
    but also more reliable. 
    Id. Ultimately, the
    Court of Special Appeals concluded that, despite
    the fact that Mr. Sallie was pictured with his unique identifying mark, the photo array was
    not suggestive. 
    Id. at 472,
    332 A.2d at 318.
    Additionally, the Court of Special Appeals has reviewed whether repeating an
    individual’s picture may render a photo array suggestive. See, e.g., Morales v. State, 
    219 Md. App. 1
    , 
    98 A.3d 1032
    (2014). In Morales, Luis Morales argued that the identification
    procedure, through which he was identified as the perpetrator of a crime, was
    impermissibly suggestive. 
    Id. at 17-18,
    98 A.3d at 1042. His argument rested upon the
    fact that he was the only person included in both of the two identification procedures
    19
    administered to the witnesses. 
    Id. The court
    determined that there was no reason to believe
    that the witnesses noticed that Mr. Morales’s photo was repeated. 
    Id. at 18,
    98 A.3d at
    1042. The police used a more recent photo of Mr. Morales in the second procedure than
    the first procedure. 
    Id. In addition,
    nothing that the witnesses said indicated that they
    chose Mr. Morales’s photograph because they had seen it before. 
    Id. at 18,
    98 A.3d at
    1043. Therefore, the court concluded that the identification procedure was not suggestive.
    
    Id. at 19,
    98 A.3d at 1043.
    In the present case, Petitioner’s photo was emphasized during the first photo array.
    Petitioner was the only person in the first array who had a tattoo visible on his neck.
    Petitioner’s tattoo was prominently visible, and it clearly depicted a cursive-script “M.”
    Our determination that Petitioner’s photo was emphasized is also evidenced by the fact that
    Detective DiSimone recognized that to depict Petitioner’s conspicuous tattoo in the first
    array would draw attention to his photo. Detective DiSimone testified “that the tattoo was
    described in so much detail that it would be leading if [he] put the tattoo in the picture”
    during the first array. Despite the tattoo’s presence, unlike in Sallie, Mr. Lee was only 80%
    positive that Petitioner was the assailant after viewing the first array.
    After Petitioner’s photo was emphasized in the first photo array, his photo recurred
    in the second array. Unlike in Morales, Mr. Lee had reason to notice that Petitioner was
    repeated in the second array. Petitioner was the only person from the first array with an
    “M” tattoo, and then the only person from the first array who was repeated in the second
    array. Although Petitioner was not the only person in the second array with a tattoo on his
    neck, he was, again, the only person with the letter “M” tattooed on his neck. The implicit
    20
    suggestion inherent in repeating Petitioner’s photo with his distinct tattoo is also bolstered
    by the fact that Mr. Lee recalled being told that the second array was “to make sure this
    was the same person,” after Mr. Lee said that Petitioner “looked like” the assailant as
    depicted in the first array.
    Similar to Morales, however, law enforcement used a different photo of Petitioner
    in the second array than in the first array. Additionally, nothing that Mr. Lee said indicated
    that he chose Petitioner’s photograph in the second array because he saw it in the first array.
    To the contrary, at the suppression hearing, Mr. Lee testified that he identified Petitioner
    because he recognized Petitioner’s tattoo from the incident and Staples, not from the first
    array. The fact that Mr. Lee may not have been susceptible to the suggestive procedure
    does not absolve this procedure of its suggestive elements. By emphasizing Petitioner’s
    photo in the first array, and then repeating Petitioner’s photo in the second array, law
    enforcement implicitly suggested to Mr. Lee that he should identify Petitioner as the
    assailant. See 
    Simmons, 390 U.S. at 383
    , 88 S. Ct. at 971, 
    19 L. Ed. 2d 1247
    . Therefore,
    we conclude that the second photo array was unduly suggestive.
    B. Reliability
    Having concluded that the second photo array was suggestive, we move to the
    second step of the due process inquiry. At this stage, the suppression court must screen the
    identification’s reliability to determine “[i]f there is ‘a very substantial likelihood of
    irreparable misidentification.’” Perry v. New Hampshire, 
    565 U.S. 228
    , 232, 
    132 S. Ct. 716
    , 720, 
    181 L. Ed. 2d 694
    (2012) (citation omitted). The State bears the burden of proving
    reliability by clear and convincing evidence. 
    Morales, 219 Md. App. at 14
    , 98 A.3d at
    21
    1040.
    When assessing an identification’s reliability, among the factors that the suppression
    court may consider are:
    (i) the opportunity of the witness to view the criminal at the
    time of the crime;
    (ii) the witness’ degree of attention;
    (iii) the accuracy of the witness’ prior description of the
    criminal;
    (iv) the level of certainty demonstrated by the witness at the
    confrontation; and
    (v) the length of time between the crime and the confrontation.
    Neil v. Biggers, 
    409 U.S. 188
    , 199-200, 
    93 S. Ct. 375
    , 382, 
    34 L. Ed. 2d 401
    (1972). The
    critical inquiry is “whether under the ‘totality of the circumstances’ the identification is
    reliable even though the confrontation procedure was suggestive.” 
    Webster, 299 Md. at 601
    , 474 A.2d at 1315 (citing 
    Biggers, 409 U.S. at 198
    , 93 S. Ct. at 382) (citations omitted).
    As this articulation suggests, the identification’s reliability must be weighed in light of the
    procedure’s suggestiveness.
    A suppression court assessing an identification’s reliability must be mindful of the
    fact that reliability is not a ground upon which the accused may argue for exclusion. The
    issue of reliability is “by diametric contrast, a severe limitation on such exclusion.”
    
    Conyers, 115 Md. App. at 120
    , 691 A.2d at 805. It provides the State with a means to show
    that the identification has sufficient indicia of reliability to warrant admitting it into
    evidence for the jury, the ultimate arbiter of reliability, to consider. See Wood v. State, 
    196 Md. App. 146
    , 162, 
    7 A.3d 1115
    , 1124 (2010) (“[R]eliability is quintessentially a jury
    question and an evidentiary issue,” and “it is not a catalyst for suppression but an antidote
    22
    thereto.”). Thus, where a procedure’s suggestiveness creates a very substantial likelihood
    that the witness misidentified the culprit, evidence of the identification must be suppressed
    in order to preserve the accused’s right to due process of law. 
    Perry, 565 U.S. at 239
    , 132
    S. Ct. at 724-25, 
    181 L. Ed. 2d 694
    . Where, however, “the indicia of reliability are strong
    enough to outweigh the corrupting effect of the police-arranged suggestive circumstances,
    the identification evidence ordinarily will be admitted, and the jury will ultimately
    determine its worth.” 
    Id. at 232,
    132 S. Ct. at 721, 
    181 L. Ed. 2d 694
    .
    In Manson v. Brathwaite, the Supreme Court concluded that there was no substantial
    likelihood that the eyewitness misidentified the culprit, even though the identification was
    procured by showing the eyewitness one photograph. 
    432 U.S. 98
    , 116, 
    97 S. Ct. 2243
    ,
    2254, 
    53 L. Ed. 2d 140
    (1977). There, the eyewitness stood at the perpetrator’s door for two
    to three minutes, and the door opened twice. 
    Id. The eyewitness
    spoke to the perpetrator,
    and it was not dark outside. 
    Id. The eyewitness
    was a trained police officer, not a casual
    observer. 
    Id. He gave
    a description of the perpetrator within minutes of the incident, which
    described the perpetrator’s race, height, build, hair color and style, high cheek bones, and
    clothes. 
    Id. The eyewitness
    saw the photograph two days after the confrontation, and he
    was positive about his identification. 
    Id. In Biggers,
    the Supreme Court concluded that evidence of a victim’s identification,
    which was made at a suggestive showup procedure, was admissible because there was no
    substantial likelihood of 
    misidentification. 409 U.S. at 201
    , 93 S. Ct. at 383, 
    34 L. Ed. 2d 401
    . There, the victim spent thirty minutes with the assailant under artificial light and
    moonlight. 
    Id. at 200,
    93 S. Ct. at 382. The victim’s description was “more than ordinarily
    23
    thorough,” as it included the assailant’s age, height, weight, complexion, skin texture,
    build, and voice. 
    Id. She was
    confident in her identification. Id. at 
    201, 93 S. Ct. at 383
    .
    Additionally, the witness was the victim of the crime, not a casual observer. 
    Id. at 200,
    93
    S. Ct. at 382-83. Lastly, although the identification was made seven months after the crime,
    the victim only made one identification during the multiple showups she viewed. Id. at
    
    201, 93 S. Ct. at 383
    .
    Under the facts of this case, the suppression court and the Court of Special Appeals
    concluded that there was clear and convincing evidence that Mr. Lee’s identification of
    Petitioner was reliable. The suppression court reached this conclusion based on Mr. Lee
    and Petitioner’s prior familiarity. The Court of Special Appeals rested its holding on Mr.
    Lee’s prior familiarity with Petitioner. Exercising its independent authority, the court also
    considered a multitude of other reliability factors. We review the factors that both courts
    considered to establish reliability.
    Prior Familiarity
    First, the suppression court found that Mr. Lee had prior familiarity with Petitioner,
    so the identification “had nothing to do with the photograph [Mr. Lee saw during the first
    array].” The Court of Special Appeals also determined that their prior familiarity bolstered
    the identification’s reliability.
    Based on the record, Mr. Lee told Detective DiSimone at the hospital that he
    “believed he had seen [the assailant] before.” Mr. Lee elaborated that he had seen the
    assailant at Staples, where Mr. Lee was employed, on two occasions. Mr. Lee did not
    provide specifics about the nature of these encounters, and he did not know the assailant
    24
    by name. Still, immediately after identifying Petitioner as the assailant, Mr. Lee wrote on
    Petitioner’s photo that he “remember[ed] [Petitioner] from coming into my job [at Staples]
    on two different occasions.” Additionally, Mr. Lee testified that he was confident in his
    identification because when he saw Petitioner’s tattoo in the second array, it “was almost
    like a rush of memory from both Staples and what [he] remembered seeing that night
    [during the incident].”
    Petitioner argues that for prior acquaintanceship to bolster the reliability of an
    identification, we must require a higher degree of prior familiarity between the eyewitness
    and the alleged perpetrator. Petitioner’s argument invites the imposition of an arbitrary
    acquaintanceship requirement, which we are not willing to adopt. When a witness claims
    to recognize an assailant from a prior encounter, the credibility of the witness’s statement
    is a factual matter. In this case, the suppression court chose to credit Mr. Lee’s testimony
    that he recognized the assailant, and that the recognition aided him in making an
    identification. That Mr. Lee did not know the assailant by name or provide details about
    the prior encounters may detract from the weight that the jury ultimately assigns Mr. Lee’s
    testimony. It does not render the suppression court’s factual finding of prior familiarity
    clearly erroneous. Therefore, affording due deference to the suppression court’s decision
    to credit Mr. Lee’s testimony and finding of prior familiarity, we conclude that the fact that
    Mr. Lee recognized the assailant from encounters preceding the incident weighs in favor
    of reliability.
    25
    Opportunity to View
    Next, we review Mr. Lee’s opportunity to view the assailant at the time of the crime.
    In the case at bar, there is no challenge to the accuracy of Mr. Lee’s description of the
    assailant or the opportunity or ability for Mr. Lee to formulate the description he gave to
    police. The undisputed facts indicate that Mr. Lee’s encounter with the assailant lasted
    approximately two minutes. During that time, Mr. Lee and the assailant were close
    together, only separated by about one foot, and Mr. Lee spoke with the assailant. As
    Petitioner points out, it was dark outside during the incident at 2:00 a.m., and the only
    lighting was a “dark orange” colored street light. Yet, Mr. Lee testified that the street light
    was shining directly on the assailant, which made it easier for Mr. Lee to see him. In
    addition, Petitioner notes that the assailant was covering the bottom portion of his face with
    a white T-shirt. Despite the partial obstruction, Mr. Lee was still able to see the uncovered
    portions of the assailant’s face, hair, and neck, and describe the assailant’s skin tone, beard,
    hair, and neck tattoo. Viewing these facts in the light most favorable to the State, we
    conclude, as did the Court of Special Appeals, that Mr. Lee’s opportunity to view the
    assailant weighs in favor of reliability.
    Degree of Attention
    In addition, we review Mr. Lee’s degree of attention during the encounter.           Mr.
    Lee stood approximately one foot away from the assailant. He spoke with the assailant
    when he explained that he did not have any money. Mr. Lee was the victim of the crime,
    not a “casual or passing observer.” See 
    Webster, 299 Md. at 621
    (determining that because
    the witnesses were subjected to threats during the robbery, their degree of attention was
    26
    “intense.”). Additionally, he was sufficiently attentive to notice and recall the assailant’s
    skin tone, hair, facial hair, and neck tattoo.
    Petitioner contends that Mr. Lee’s degree of attention cannot weigh in favor of
    reliability because the assailant had a gun during the encounter. See 
    Henderson, 27 A.3d at 904-05
    (explaining that the presence of a weapon during a short encounter can impact
    the reliability of a witness’s ability to reliably identify and describe the perpetrator).
    Indeed, weapon-focus may be a circumstance that suppression courts consider within their
    reliability assessment. See, e.g., U.S. v. Greene, 
    704 F.3d 298
    , 308 (4th Cir. 2013)
    (explaining that the eyewitness had a gun pointed at her, which weighed against the
    reliability of her testimony). In order to conclude that weapon-focus impaired Mr. Lee’s
    identification and description of the assailant, we would need facts from which we could
    infer that the weapon distracted Mr. Lee. Mr. Lee testified that “[he] saw the gun first
    before [he] saw the guy connected.” At best, we can discern that Mr. Lee saw the gun first,
    but in addition to, the person holding it. Viewing the facts in the light most favorable to
    the State, Mr. Lee’s proximity to the crime and the details that he observed about the
    assailant indicate that he was attentive during the crime. We conclude that Mr. Lee’s
    degree of attention weighs in favor of reliability.
    Accuracy of Prior Descriptions
    We also review the accuracy of Mr. Lee’s prior descriptions of the assailant. At the
    hospital, Mr. Lee described the assailant as “[a] black male, light skin, believed he had seen
    him before, a light [T]-shirt, tattoo on the right side of his neck, 5’8”, regular sized, a short
    haircut. He held the bottom of his shirt up over his face, blue jeans, block letter tattoo on
    27
    neck, had a letter ‘M’ in it.” Neither party contends that the attributes in this initial
    description inaccurately describe Petitioner. Notably, Mr. Lee’s description includes more
    than just general qualities that could illustrate the features of an innumerable number of
    people. In particular, Mr. Lee described the block letter “M” tattoo at the hospital.
    Accordingly, from the outset, Mr. Lee’s description of the assailant described Petitioner
    with considerable specificity.
    Petitioner argues that Mr. Lee’s description of the assailant’s tattoo changed after
    he viewed Petitioner’s photo in the first array, and that this demonstrates the corrupting
    impact of the first photo array. Specifically, Petitioner contends that Mr. Lee first described
    the assailant’s tattoo as being in cursive script after the first array, whereas Respondent
    argues that this detail emerged before the first array. At the suppression hearing, Detective
    DiSimone was asked what information he had about the assailant’s tattoo to rely on when
    compiling the first array. Detective DiSimone consulted his notes, and he said, “Block
    styled cursive script, bold, not dull, containing multiple letters and at least one of them was
    an ‘M’ was the description that was provided.” There was some confusion, however, as to
    when Detective DiSimone recorded the notes that he consulted. Viewing Detective
    DiSimone’s testimony in the light most favorable to the State, regardless of when the
    detective made those notes, when he compiled the first array he apparently knew that the
    assailant’s tattoo included a cursive script “M.”
    Moreover, in the detailed description of the assailant’s tattoo, Mr. Lee also said that
    the assailant’s tattoo had “multiple letters” in it. This description is consistent with
    Petitioner’s profile-view photo in the second array, in which the letters “L,” “Y,” and “M”
    28
    are seen tattooed on Petitioner’s neck. We also observe that only the letter “M” is visible
    in the first array. The letters “L” and “Y” cannot be seen, and it is not observable from the
    first array that Petitioner’s tattoo contains additional letters. Therefore, Mr. Lee could not
    have discerned this detail from the first array. Viewing the facts in the light most favorable
    to the State, because Detective DiSimone said that the detailed description of the tattoo was
    provided before the first array, and because the fact that Petitioner’s tattoo contained
    multiple letters is not discernable from the first array, we cannot conclude that the first
    array corrupted Mr. Lee’s description of the assailant. We conclude that Mr. Lee’s
    description of the assailant weighs in favor of reliability.
    Level of Certainty
    Additionally, we consider Mr. Lee’s level of certainty. Mr. Lee’s level of certainty
    undisputedly wavered. During the first photo array, Mr. Lee said that Petitioner’s photo
    looked like the assailant, but he was only 80% sure of his claim. Then, three hours later,
    Mr. Lee saw Petitioner’s photo again, and he identified Petitioner as the assailant. This
    time, Mr. Lee was 100% sure of his identification. Mr. Lee questioned his identification
    two weeks later when he thought he saw the assailant on a dirt bike, even though he knew
    Petitioner had been arrested.       Mr. Lee’s level of confidence decreased sometime
    subsequent to June 17, 2015, when Mr. Lee told an Assistant State’s Attorney that he was
    70% sure of his identification of Petitioner. At the suppression hearing, Mr. Lee could not
    explain why his confidence level varied. We conclude, as did the Court of Special Appeals,
    29
    that Mr. Lee’s wavering level of certainty does not weigh in favor of reliability.
    Lapse in Time
    Next, we must consider the length of time between the crime and the display of the
    photo array. The attempted robbery occurred at 2:00 a.m. on June 17, 2015. The
    presentation of the second array occurred at approximately 11:45 a.m. on June 17, 2015.
    Approximately ten hours lapsed between the crime and the display of the photo array.22
    Within that time frame, Mr. Lee also viewed the first array. Although Petitioner’s
    photo was emphasized in the first array, and then repeated three hours later in the second
    array, Mr. Lee never indicated that the first array impacted his identification. To the
    contrary, Mr. Lee connected his identification to his memory of the incident, ten hours
    earlier, and his prior encounters with the assailant at Staples. For instance, Mr. Lee wrote
    on Petitioner’s photograph, “This is the same tattoo and face I remember robbing me and
    the man I remember shooting me. I also remember him from coming into my job [at
    Staples] on two different occasions.” He also explained that he was confident in his
    identification because seeing Petitioner’s tattoo in the second array was “like a rush of
    22
    Petitioner contends that the identification is not reliable because Mr. Lee may have been
    administered drugs while he was in the hospital. See 
    Henderson, 27 A.3d at 906
    (explaining that a witness’s level of intoxication may affect the reliability of an
    identification). In appropriate cases, the influence of drugs or alcohol may impact the
    reliability of an identification. Here, Mr. Lee did not recall being given any drugs at the
    hospital. Mr. Lee testified, “They gave me . . . saline to re-hydrate myself and I asked for
    hours can I have something to take care of the pain because it increased and I don’t even
    remember them coming in. The only thing I remember them giving me was just the saline.”
    Petitioner did not introduce any evidence at the suppression hearing indicating that Mr. Lee
    was under the influence of drugs at the hospital. Therefore, this factor is inapplicable to
    the present case.
    30
    memory from both Staples and what [he] remembered seeing that night.” We conclude
    that the lapse in time between the crime and the confrontation weighs in favor of reliability.
    Petitioner’s Neck Tattoo23
    Finally, the Court of Special Appeals reviewed the presence of Petitioner’s neck
    tattoo as an independent factor impacting the identification’s reliability. In its discussion,
    the court explained that the assailant’s tattoo was distinctive to Mr. Lee and served as an
    identifying feature. Channeling the logic from Sallie, the court concluded that because the
    assailant and Petitioner both had the tattoo, Mr. Lee’s identification of Petitioner was
    “inevitable indeed, but also . . . more rather than less reliable.” Small, 
    235 Md. App. 648
    ,
    691, 
    180 A.3d 163
    , 188 (2018) (quoting Sallie, 24 Md. App. at 
    472, 332 A.2d at 318
    ).
    We agree with the Court of Special Appeals that, for Mr. Lee, the tattoo was a
    distinct, identifying feature of the assailant. Following the attempted robbery, Mr. Lee
    described the assailant’s tattoo to law enforcement in detail. Furthermore, Mr. Lee testified
    that he was confident in his ultimate identification of Petitioner because of “the tattoo
    23
    Petitioner argues that the Court of Special Appeals gave “double weight” to Mr. Lee’s
    prior familiarity with the assailant and “triple weight” to Mr. Lee’s description of the tattoo
    because the court weighed these facts in its analysis for multiple reliability factors. The
    court mentioned Mr. Lee’s prior familiarity with the assailant in its analysis of Mr. Lee’s
    prior description of the assailant, and also as an independent factor favoring reliability. In
    addition, the court discussed the tattoo in its analysis of Mr. Lee’s opportunity to view the
    assailant, the accuracy of Mr. Lee’s description, and as an independent factor favoring
    reliability. We reject Petitioner’s claim that the court gave undue weight to Mr. Lee’s prior
    familiarity with the assailant and description of the tattoo. The court appropriately
    considered the totality of the circumstances. Clearly, one fact may give rise to multiple
    inferences. See Manson, 432 U.S at 
    115, 97 S. Ct. at 2253
    , 
    53 L. Ed. 2d 140
    (The Court
    considered the timing of the eyewitness’s description and the identification within the
    analysis of two separate Biggers factors).
    31
    specifically.”
    The Court of Special Appeals, however, viewed the second array in isolation. We
    do not overlook the fact that part of Petitioner’s tattoo was displayed in the first photo
    array, nor that Mr. Lee was not 100% certain that the person in the photo was the assailant.
    Nonetheless, we observe that the second array portrayed more information about
    Petitioner’s tattoo than the first array. The first array included one front-facing photo of
    Petitioner, depicting the “M” in Petitioner’s tattoo. In addition to a front-facing photo of
    Petitioner, the second array included a profile-view photo of Petitioner, depicting
    Petitioner’s full “LYM” tattoo.
    We discern from these facts that Mr. Lee was apparently not susceptible to the
    suggestion inherent in depicting the “M” in Petitioner’s neck tattoo in the first array
    because Mr. Lee did not make a positive identification during the first array. Mr. Lee noted
    that Petitioner’s tattoo “look[ed] pretty much like the same tat[too] he saw [during the
    incident].” He was, however, only 80% sure about his identification. Mr. Lee made an
    identification with 100% certainty after he viewed the second array. Petitioner’s photo
    appeared in the first array and in the second array. Yet, Mr. Lee did not indicate that he
    chose Petitioner’s photo because his photo was repeated in the second array. Mr. Lee made
    an identification and explained his level of confidence because of “the tattoo specifically.”
    Notably, the tattoo appeared in full in the second array.          Additionally, Petitioner
    consistently tied his memories of the tattoo to his encounters with the assailant at Staples
    and the attempted robbery. Viewing the facts in the light most favorable to the State, we
    conclude that the tattoo was distinctive to Mr. Lee, and it aided his identification of
    32
    Petitioner as the assailant. Thus, this factor weighs in favor of reliability.
    CONCLUSION
    Having conducted an independent evaluation of the identification made by Mr. Lee
    in light of Petitioner’s right to due process of law, we cannot say that Mr. Lee’s
    identification of the assailant was unreliable.       Although there was a risk that, by
    emphasizing Petitioner in the first array and then repeating Petitioner’s photograph in the
    second array, law enforcement guided Mr. Lee to identify Petitioner as the assailant, that
    risk is diminished by the identification’s indicia of reliability. Specifically, Mr. Lee had
    previously encountered the assailant at Staples, and had ample opportunity to view the
    assailant at the time of the attempted robbery. Mr. Lee gave a specific and detailed
    description of the assailant. He identified his assailant shortly after the crime and was aided
    in making that identification because the assailant displayed a unique tattoo. Accordingly,
    we conclude that Respondent presented clear and convincing evidence that Mr. Lee’s
    identification was reliable, even in light of the suggestive extrajudicial procedure.24
    24
    Lastly, Petitioner argues that the Court of Special Appeals failed to weigh the
    identification’s reliability against its indicia of suggestiveness, which Petitioner argues is
    particularly prejudicial in this case because Mr. Lee’s identification was the only evidence
    presented by the State to link Mr. Small to the crime. In Manson v. Brathwaite, the
    Supreme Court declined to consider, in its due process inquiry, extraneous evidence of the
    defendant’s guilt. 
    432 U.S. 98
    , 116, 
    97 S. Ct. 2243
    , 2254, 
    53 L. Ed. 2d 140
    (1977)
    (“Although it plays no part in our analysis, all this assurance as to the reliability of the
    identification is hardly undermined by the fact[] that respondent was arrested” where the
    incident took place and visited there frequently). Furthermore, our review of the present
    case is limited to the suppression hearing record. McFarlin v. State, 
    409 Md. 391
    , 403,
    
    975 A.2d 862
    , 868-69 (2009). We do not review the record of the trial. 
    Id. Therefore, any
    evidence, or lack thereof, of the defendant’s guilt that was adduced at trial does not factor
    into our due process inquiry.
    33
    Beyond that, the weight of the identification was a matter for the jury to resolve.
    We hold that the Manson-Jones framework continues to be the proper test for
    analyzing the admissibility of evidence of extrajudicial identification procedures.
    Applying that test to the facts of this case, we conclude that the second photo array
    procedure was suggestive. The identification, however, had sufficient indicia of reliability
    to overcome the taint of that suggestiveness. Thus, we hold that the suppression court
    properly denied Petitioner’s motion to suppress evidence of the second photo array.
    JUDGMENT OF THE COURT OF
    SPECIAL    APPEALS   AFFIRMED.
    COSTS IN THIS COURT TO BE PAID
    BY PETITIONER.
    34
    Circuit Court for Baltimore City         IN THE COURT OF APPEALS
    Case No. 115191006
    Argued: October 10, 2018                           OF MARYLAND
    No. 19
    September Term, 2018
    ___________________________________
    MALIK SMALL
    v.
    STATE OF MARYLAND
    ___________________________________
    Barbera, C.J.
    Greene,
    *Adkins,
    McDonald,
    Watts,
    Hotten,
    Getty,
    JJ.
    ____________________________________
    Concurring Opinion by Barbera, C.J., which
    Adkins and McDonald, JJ., join.
    ____________________________________
    Filed: June 24, 2019
    *Adkins, J., now retired, participated in the
    hearing and conference of this case while an
    active member of this Court; after being
    recalled pursuant to the Md. Constitution,
    Article IV, Section 3A, she also participated
    in the decision and adoption of this opinion.
    I join the Court’s judgment because I am satisfied that the Court properly applied
    the current framework for reliability of eyewitness identification set forth by the Supreme
    Court in Manson v. Brathwaite, 
    432 U.S. 98
    (1977), and adopted by this Court in Jones v.
    State.1 I write separately to express my disappointment in the Court’s unwillingness to
    consider seriously, and act upon, the research that currently informs the many “vagaries of
    eyewitness identification.” United States v. Wade, 
    388 U.S. 218
    , 228 (1967).
    With its continued adherence to the test in the present case, the Court has effectively
    dismissed decades of extensive social science research, summarized not only in the brief
    of Amici, The Innocence Project, Inc. and the University of Baltimore Innocence Project
    Clinic, but also in a growing number of state supreme court decisions. My colleagues
    acknowledge the research and note the attention the New Jersey Supreme Court has paid
    to eyewitness identification evidence in State v. Henderson, 
    27 A.3d 872
    (N.J. 2011). See
    Small v. State, No. 19, 2018 Term, slip op. at 12-13 & nn.16-17. But, in the end, the Court
    brushes the research aside and retreats to a lock-step application of the Manson test, the
    soundness of which has since been called into serious question.
    In doing so, the Court has missed an opportunity to join the growing number of state
    supreme courts that recognize and are reacting to the serious due process concerns
    attending eyewitness identifications. We should follow the path blazed by our sister
    supreme courts and act upon the research. We should not persist in wholesale reliance on
    an archaic test based on seemingly logical assumptions that have since been refuted.
    1
    
    310 Md. 569
    (1987), cert. granted, judgment vacated on other grounds, 
    486 U.S. 1050
    (1988), conviction aff’d, sentence vacated and remanded, 
    314 Md. 111
    (1988).
    The Supreme Court’s formulation of the test for identification reliability
    In Foster v. California, the Supreme Court held, for the first and only time, that a
    police procedure was “‘so unnecessarily suggestive and conducive to irreparable mistaken
    identification’” and, consequently, “so undermined the reliability of the eyewitness
    identification as to violate” the Due Process Clause of the Fourteenth Amendment. 
    394 U.S. 440
    , 442, 443 (1969) (citation omitted).
    Three years later, in Neil v. Biggers, the Supreme Court clarified that when a police
    procedure is challenged as unduly suggestive—thereby calling into question whether the
    procedure violated due process—“the primary evil to be avoided is ‘a very substantial
    likelihood of irreparable misidentification.’” 
    409 U.S. 188
    , 198 (1972) (citation omitted).
    The Biggers Court concluded that even when a police procedure is deemed unduly
    suggestive, the resultant identification could still be offered into evidence at trial so long
    as the identification itself was reliable. 
    Id. at 201
    (reasoning that the witness’s “unusual
    opportunity to observe and identify her assailant” during the crime made the identification
    reliable).
    To assist in determining reliability, the Biggers Court identified five factors: “the
    opportunity of the witness to view the criminal at the time of the crime, the witness’ degree
    of attention, the accuracy of the witness’ prior description of the criminal, the level of
    certainty demonstrated . . . at the confrontation, and the . . . time between the crime and the
    confrontation.” 
    Id. at 199-200.
    Then, in Manson, emphasizing that “reliability is the
    linchpin in determining the admissibility of identification 
    testimony,” 432 U.S. at 114
    , the
    Supreme Court held that the courts should apply the five Biggers factors, viewed in light
    2
    of the totality of the circumstances, 
    id. at 110,
    116. For much of the intervening time, state
    courts across the country, including those in Maryland, have followed the reliability test
    announced in Biggers, refined in Manson, and, without alteration, applied by the Supreme
    Court most recently in Perry v. New Hampshire, 
    565 U.S. 228
    (2012).
    Social science advances since the 1970s and the New Jersey Supreme Court’s landmark
    decision
    Since Manson was decided, a substantial body of social science research has
    challenged the validity of the Manson test. I will not attempt to catalog that research, but
    there is a general consensus that misidentification is the single greatest cause of wrongful
    convictions in this country. The data shows that, before 2011, “more than seventy-five
    percent of convictions overturned due to DNA evidence involved eyewitness
    misidentification,” and that “[i]n half of the cases, eyewitness testimony was not
    corroborated by confessions, forensic science, or informants.” State v. Henderson, 
    27 A.3d 872
    , 886 (N.J. 2011) (citations omitted); see also Brandon L. Garrett, Convicting the
    Innocent: Where Criminal Prosecutions Go Wrong 48-49 (2011) (finding that of the first
    250 DNA exonerations, 76% of the defendants had been misidentified); 
    id. at 50
    (finding
    that witnesses choose fillers, i.e., non-suspects used to fill out lineups, in 30% of all
    identifications).2 Further, a 2006 publication by the International Association of Chiefs of
    2
    Later studies confirm the role of mistaken identifications in falsely convicting
    defendants. See Kaitlin Jackson & Samuel Gross, Nat’l Registry of Exonerations, Tainted
    Identifications (Sept. 22, 2016), https://perma.cc/9ZZN-RG6X (finding unintentional
    misidentifications, i.e., those without witnesses’ lying about the perpetrator or even that a
    crime took place, contributed to 30% (572) of the 1,886 exonerations nationwide);
    Innocence Project, Eyewitness Identification Reform, https://perma.cc/Z2VD-TAPH
    (continued . . . )
    3
    Police concluded that “[o]f all investigative procedures employed by the police in criminal
    cases, probably none is less reliable than the eyewitness identification.         Erroneous
    identifications create more injustice and cause more suffering to innocent persons than
    perhaps any other aspect of police work.” 
    Id. at 885-86
    (quoting Int’l Ass’n of Chiefs of
    Police, Training Key No. 600, Eyewitness Identification 5 (2006)).
    The rapidly expanding body of social science research exposes the frailty of the
    Manson factors for eyewitness identification reliability. In the words of Amici in the
    present case, the Manson test “fails to protect against unreliable eyewitness identifications
    because it focuses on factors that have a weak or no correlation with reliability while
    ignoring those that are scientifically proven to impact the reliability of eyewitness
    identifications.” Brief of Innocence Project, Inc., et al. as Amici Curiae Supporting
    Petitioner at 6.
    In large part, the New Jersey Supreme Court, in Henderson, led the way in departing
    from long-held judicial assumptions. After oral argument in 2009, the court “appointed a
    Special Master to evaluate scientific and other evidence about eyewitness identifications.
    [He] . . . probed testimony by seven experts and produced more than 2,000 pages of
    transcripts along with hundreds of scientific studies.” 
    Henderson, 27 A.3d at 877
    . The
    court adopted much of the “extensive and very fine report.” 
    Id. The Special
    Master’s research on scientific advances regarding the formation,
    ( . . . continued)
    (finding approximately 71% of the more than 360 convictions overturned by DNA
    evidence nationwide involved mistaken identification).
    4
    storage, and recall of memory reveals a sea change in the factual underpinnings of
    eyewitness reliability. We should be dismayed that the assumptions of the Supreme Court
    justices in 1972, however well-intended, still govern the way we in 2019 decide whether
    an identification is reliable. For example, as the New Jersey Supreme Court observed in
    Henderson, we now know far more about memory than we did in the 1970s:
    During the 1970s, when the Supreme Court decided Manson,
    researchers conducted some experiments on the malleability[3] of human
    memory. But according to expert testimony, that decade produced only four
    published articles in psychology literature containing the words
    “eyewitness” and “identity” in their abstracts. By contrast, the Special
    Master estimated that more than two thousand studies related to eyewitness
    identification have been published in the past thirty 
    years. 27 A.3d at 892
    (emphasis added). Judicial procedures, the Special Master’s report stated,
    must account for the fact that a “witness does not perceive all that a videotape would
    disclose, but rather ‘get[s] the gist of things and constructs a ‘memory’ on ‘bits of
    information . . . and what seems plausible,’” and that memory can therefore be “distorted,
    contaminated and even falsely imagined.” 
    Id. at 894.
    The Henderson court’s framework for addressing identification evidence recognizes
    a far more comprehensive list of suggestiveness and reliability factors than that devised
    from whole cloth in the 1970s. Based on the research, these factors fall into one of two
    categories, system variables and estimator variables. System variables are factors “within
    the State’s control,” 
    id. at 896,
    including:
    • whether a lineup was “administered in double-blind or blind fashion,” id.;
    • whether pre-identification instructions specified “that the suspect may or may
    3
    “Malleability” refers to the extent to which “an array of variables can affect and dilute
    memory and lead to misidentifications.” State v. Henderson, 
    27 A.3d 872
    , 895 (N.J. 2011).
    5
    not be in the lineup or array and that the witness should not feel compelled to
    make an identification,” 
    id. at 897;
           •   whether a lineup or array is properly constructed or makes a suspect stand out,
    
    id. at 897-98;
           •   whether post-identification feedback or confirmation “signal[s] to eyewitnesses
    that they correctly identified the suspect,” thus “engender[ing] a false sense of
    confidence in a witness,” 
    id. at 899;
           •   whether a witness had multiple viewings of the same suspect during the
    investigation and thus the later identification may merely “stem[] from . . . a
    memory of the earlier identification procedure,” 
    id. at 900;
           •   whether lineups are presented simultaneously or sequentially, 
    id. at 901;
    and
    •   whether unreliable composites or suggestive showups were used, 
    id. at 902-03.
    Estimator variables are factors “beyond the control of the criminal justice system” and may
    be “related to the incident, the witness, or the perpetrator.” 
    Id. at 904.
    They include:
    • the level of stress the eyewitness was under at the time of the events, id.;
    • whether “weapon focus” may have “distract[ed] a witness and draw[n] his or her
    attention away from the culprit,” 
    id. at 904-05;
           • the “amount of time an eyewitness has to observe an event,” 
    id. at 905;
           • the distance and lighting conditions between the eyewitness and the perpetrator,
    
    id. at 906;
           • eyewitness characteristics both temporary—like intoxication—or immutable—
    like age—that can affect reliability, id.;
    • characteristics of the perpetrator that can affect reliability, such as disguises,
    masks, or changed facial features, 
    id. at 907;
           • the passage of time, as memories fade over time and “memory decay ‘is
    irreversible,’” id.;
    • whether the identification is “cross-racial,” as that is generally more difficult,
    id.;
    • whether private actors—e.g., other witnesses, newspaper accounts, or
    photographs—may have altered a witness’s memory, 
    id. at 907-08;
           • the speed with which the witness makes an identification, 
    id. at 909-10.
    The Henderson court adopted a new procedure for evaluating suggestiveness and
    reliability incorporating these variables:
    First, to obtain a pretrial hearing, a defendant has the initial burden of
    showing some evidence of suggestiveness that could lead to a mistaken
    identification. That evidence, in general, must be tied to a system—and not
    6
    an estimator—variable.
    Second, the State must then offer proof to show that the proffered
    eyewitness identification is reliable—accounting for system and estimator
    variables . . . .
    Third, the ultimate burden remains on the defendant to prove a very
    substantial likelihood of irreparable misidentification. To do so, a defendant
    can cross-examine eyewitnesses and police officials and present witnesses
    and other relevant evidence linked to system and estimator variables.
    Fourth, if after weighing the evidence presented a court finds from the
    totality of the circumstances that [the] defendant has demonstrated a very
    substantial likelihood of irreparable misidentification, the court should
    suppress the identification evidence. If the evidence is admitted, the court
    should provide appropriate, tailored jury instructions . . . 
    . 27 A.3d at 920
    (footnote and citations omitted). Through the targeted consideration of new
    variables and its new four-part inquiry, New Jersey has ameliorated two drawbacks to the
    Manson framework: (1) it inadequately accounts for the impact of suggestiveness in the
    first prong on reliability in the second prong; and (2) it does not incorporate current
    knowledge about how the human brain functions.
    Among the Special Master’s findings were insights on jurors’ reliance on witness
    certainty. The Supreme Court included, in Biggers, the witness’s certainty as a reliability
    factor, albeit without citing any scientific 
    authorities. 409 U.S. at 199
    . Research studies
    virtually unanimously indicate that, despite an eyewitness’s belief that his or her
    identification is accurate, there is no statistically significant correlation between certainty
    and accuracy. See Nat’l Research Council, Nat’l Acads., Identifying the Culprit: Assessing
    Eyewitness Identification 6 (noting that the Manson test “treats factors such as the
    confidence of a witness as independent markers of reliability when, in fact, it is now well
    established that confidence judgments may vary over time and can be powerfully swayed
    by many factors”).
    7
    The problem is compounded by many jurors’ “belief that eyewitness confidence
    correlates with accurate identifications,” Brief of Am. Psychol. Ass’n as Amicus Curiae
    Supporting Petitioner at 19 n.14, Perry, 
    565 U.S. 228
    (No. 10-8974) (“APA Brief”)
    (emphasis added). Also troubling are jury surveys and mock jury studies disclosing that
    jurors do not intuitively understand the science of memory and, unless informed on the
    subject, are inclined to accept the eyewitness’s level of “certainty.” See State v. Guilbert,
    
    49 A.3d 705
    , 720-21 (Conn. 2012) (stating there is “near perfect scientific consensus” that
    “eyewitness identifications are potentially unreliable in a variety of ways unknown to the
    average jury”).
    The New Jersey Supreme Court sought to inform jurors about the potential pitfalls
    of seemingly certain eyewitness identifications. Noting the research, 
    Henderson, 27 A.3d at 917
    , the court held that “jurors should be told that poorly constructed or biased lineups
    can affect the reliability of an identification and enhance a witness’ confidence,” 
    id. at 899.
    The court thus asked New Jersey’s Criminal Practice and Model Criminal Jury Charges
    Committees “to draft proposed revisions to the current charge on eyewitness identification”
    that reflect “all of the system and estimator variables . . . for which we have found scientific
    support that is generally accepted by experts.” 
    Id. at 925-26.
    The Henderson court also permitted expert testimony “by qualified experts seeking
    to testify about the import and effect of certain variables” but not to “opine on the
    credibility of a particular eyewitness.” 
    Id. at 925.
    The court “anticipate[d], however, that
    with enhanced jury instructions, there will be less need for expert testimony” because jury
    instructions “are focused and concise, authoritative (in that juries hear them from the trial
    8
    judge, not a witness called by one side), and cost-free; they avoid possible confusion to
    jurors created by dueling experts; and they eliminate the risk of an expert invading the
    jury’s role or opining on an eyewitness’ credibility.” 
    Id. In the
    end, the court left “to the
    trial court the decision whether to allow expert testimony in an individual case.” 
    Id. In Perry,
    the Supreme Court’s latest foray into this subject, the American
    Psychological Association (“APA”), with both parties’ consent, submitted an amicus brief
    urging the Supreme Court to revisit Manson and correct the assumptions made in that case:
    [M]ost of [the Biggers] factors are indeed relevant to probable accuracy—
    with the notable exception of witness certainty. But given that notable
    exception, and given the plethora of other accuracy-related factors that
    researchers have identified since Biggers and Manson, APA urges the Court,
    in an appropriate case, to revisit the Manson framework so as to bring it in
    line with current scientific knowledge.
    APA Brief at 13 n.8 (citations omitted). Justice Sotomayor put an even finer point on the
    matter in her dissent:
    The     empirical      evidence     demonstrates     that    eyewitness
    misidentification is “the single greatest cause of wrongful convictions in this
    country.” Researchers have found that a staggering 76% of the first 250
    convictions overturned due to DNA evidence since 1989 involved
    eyewitness misidentification. Study after study demonstrates that eyewitness
    recollections are highly susceptible to distortion by postevent information or
    social cues; that jurors routinely overestimate the accuracy of eyewitness
    identifications; that jurors place the greatest weight on eyewitness confidence
    in assessing identifications even though confidence is a poor gauge of
    accuracy; and that suggestiveness can stem from sources beyond police-
    orchestrated 
    procedures. 565 U.S. at 263-64
    (Sotomayor, J., dissenting) (footnotes omitted).
    Additional states’ recognition of the research
    The New Jersey Supreme Court does not stand alone in recognizing the need to
    9
    progress beyond the five-factor Manson test, particularly the factor associated with witness
    certainty. Indeed, some states preceded New Jersey. E.g., State v. Long, 
    721 P.2d 483
    ,
    491 (Utah 1986) (“A careful reading of [the Biggers factors] will show that several of the
    criteria listed by the Court are based on assumptions that are flatly contradicted by well-
    respected and essentially unchallenged empirical studies.”); Brodes v. State, 
    614 S.E.2d 766
    , 770 (Ga. 2005) (agreeing with the Long decision and elaborating that “‘[t]he scientific
    validity of the studies confirming the many weaknesses of eyewitness identification cannot
    be seriously questioned at this point’” and research “‘ha[s] taught us much about the
    fallibility of eyewitness identification’”). The Brodes Court concluded that, given “the
    critical importance of accurate jury instructions as ‘the lamp to guide the jury’s feet in
    journeying through the testimony in search of a legal verdict,’ we can no longer endorse
    an instruction authorizing jurors to consider the witness’s certainty in his/her identification
    as a factor to be used in deciding the reliability of that 
    identification.” 614 S.E.2d at 771
    .
    After Henderson, the Oregon Supreme Court conducted its own review of the
    research. State v. Lawson, 
    291 P.3d 673
    , 685-88 (Or. 2012). That court acknowledged
    that the “factors affecting the reliability of eyewitness identifications that we discuss are
    similar to those described in Henderson,” 
    id. at 685
    n.3, before creating its own procedure
    for adjudicating suppression motions grounded in the state’s evidentiary rules and naming
    expert testimony and jury instructions as the appropriate remedies, 
    id. at 696-97.
    The
    Supreme Court of Hawaii also considered Henderson and took note, in particular, of New
    Jersey’s “stringent standard” for requiring a cautionary instruction on cross-racial
    identification. State v. Cabagbag, 
    277 P.3d 1027
    , 1037 (Haw. 2012). The court held it
    10
    “cannot be assumed that juries will necessarily know how to assess the trustworthiness of
    eyewitness identification evidence”; therefore, “when eyewitness identification is central
    to the case, circuit courts must give a specific jury instruction upon the request of the
    defendant to focus the jury’s attention on the trustworthiness of the identification.” 
    Id. at 1038-39.
    The court lamented that factfinders “continue to place great weight on the
    confidence expressed by the witness in assessing reliability.” 
    Id. at 1036.
    Although in 2015, as the Court has recounted in the case at bar, we declined to adopt
    the New Jersey Supreme Court’s findings and procedural overhaul, Smiley v. State, 
    442 Md. 168
    (2015), three states have since done so.          The Supreme Judicial Court of
    Massachusetts established its own Study Group on Eyewitness Evidence, Commonwealth
    v. Gomes, 
    22 N.E.3d 897
    , 900 n.3 (Mass. 2015), whose report often quoted from or
    overlapped with the Henderson findings. See 
    id. at 911-16.
    The report convinced the court
    that some scientific principles “are ‘so generally accepted’[4] that it is appropriate in the
    future to instruct juries” to help jurors apply those principles. 
    Id. at 900.
    The court
    appended to its opinion a “provisional instruction” modeled on New Jersey’s, see 
    id. at 918-27
    (citing Henderson in footnotes), to be given “until a model instruction is issued.”
    
    Id. at 900-01.
    The Alaska Supreme Court conducted its own review of the research but
    borrowed much from Henderson, Young v. State, 
    374 P.3d 395
    , 417-25 (Alaska 2016), on
    its way toward requiring a procedure for trial courts that “closely follows the framework
    4
    The Massachusetts court explained at some length that whether “a principle of eyewitness
    identification is ‘so generally accepted’ that it is appropriate to incorporate into a model
    instruction” is determined by “the instruction’s underlying purpose and the concerns it is
    intended to alleviate.” Commonwealth v. Gomes, 
    22 N.E.3d 897
    , 908 (Mass. 2015).
    11
    set out by the Supreme Court of New Jersey in State v. Henderson,” 
    id. at 427.
    The court
    also asked the state’s jury instructions committee to draft a model instruction consistent
    with the research. 
    Id. at 428.
    The Connecticut Supreme Court discussed the estimator and
    system variables listed in Henderson, State v. Harris, 
    191 A.3d 119
    , 138-40 (Conn. 2018),
    along with the “persuasive precedents of other state courts,” 
    id. at 138,
    before
    “conclud[ing] that the most appropriate framework [for trial courts to evaluate the
    reliability of an identification] is that adopted by the New Jersey Supreme Court in State v.
    Henderson,” 
    id. at 143.
    Other state supreme courts have taken smaller steps.5
    5
    See, e.g., Minor v. United States, 
    57 A.3d 406
    , 413-14 (D.C. 2012) (citations omitted)
    (reiterating a prior holding that expert testimony about eyewitness reliability is permissible
    because the court had “learned much to cause us to reexamine our view that average lay
    persons serving as jurors are well equipped to call upon their common sense” to assess the
    credibility of eyewitness identification testimony); State v. Almaraz, 
    301 P.3d 242
    , 252-
    53, 258 (Idaho 2013) (reiterating the Manson two-step but adopting Henderson in
    instructing that system variables should be considered in the suggestiveness prong and that
    estimator variables “serve to elaborate on this Court’s five-factor test for reliability,” and
    allowing for expert testimony to address suggestive police practices); State v. Reid, 
    186 P.3d 713
    , 729 (Kan. 2008) (confirming the court’s “refinement” of the Biggers model by
    its use of eight factors for excluding an eyewitness identification); State v. Mahmoud, 
    147 A.3d 833
    , 839 (Me. 2016) (“In light of the voluminous body of scientific research that has
    emerged regarding the reliability of eyewitness identification, and the subsequent evolving
    trend among both state and federal courts to instruct juries on this matter, we conclude that
    it is permissible, where relevant, to instruct jurors on the reliability of eyewitness
    identification.”); People v. Marshall, 
    45 N.E.3d 954
    , 960 (N.Y. 2015) (requiring per se
    suppression of a pretrial identification if procedure is unduly suggestive); People v. Boone,
    
    91 N.E.3d 1194
    (N.Y. 2017) (requiring an instruction, in relevant cases, on cross-racial
    identification reliability); Commonwealth v. Walker, 
    92 A.3d 766
    , 789 (Pa. 2014) (“Thus,
    we observe that the potential fallibility of eyewitness identification is ‘beyond [the
    knowledge] possessed by the average layperson,’ indeed, may be counterintuitive, and so
    conclude that expert testimony on that subject could potentially assist the trier of fact to
    understand . . . the factors which potentially impact eyewitness testimony.”); State v.
    Copeland, 
    226 S.W.3d 287
    , 300-01 (Tenn. 2007) (same); State v. Ramirez, 
    817 P.2d 774
    ,
    781 (Utah 1991) (confirming the factors announced in State v. Long, 
    721 P.2d 483
    (Utah
    (continued . . . )
    12
    The current body of research makes a strong case for this Court not simply to break
    free from reliance on the Manson test, but also to develop a more rigorous protocol for
    assessing eyewitness identification reliability in Maryland courts.
    This Court’s rejection of the substantial body of research
    Though paying lip service to the growing body of social science research, the Court
    refuses to consider seriously the scientific knowledge that the research has produced. The
    Court dismisses Amici’s invitation to reverse this Court’s endorsement of the Manson test
    in favor of the alternative trend in which the neuropsychological underpinnings of memory
    are considered as guides of reliability. Four years ago, we declined a similar invitation to
    adopt the Henderson “theories and methodologies” because “we [were] satisfied with the
    two-part test set out in [Jones] for determining the admissibility of an extrajudicial
    eyewitness identification.” Smiley v. State, 
    442 Md. 168
    , 179-80 (2015) (citing Jones v.
    State, 
    310 Md. 569
    , 577 (1987)).6
    Today, the Court “reaffirm[s] the well-settled [Manson] test,” slip op. at 1, and the
    Smiley rejection of Henderson:
    In Smiley, we had the opportunity to adopt New Jersey’s framework for
    assessing the admissibility of eyewitness identifications, but we did not do
    so. . . . Consistent with our decision in Smiley, we decline the invitation to
    abandon the Manson-Jones framework, which Maryland courts use, and have
    ( . . . continued)
    1986), that “more precisely define the focus of the relevant inquiry” than Biggers); State v.
    Discola, 
    2018 VT 7
    , ¶¶ 30-31, 
    184 A.3d 1177
    , 1188-89 (Vt. 2018) (abandoning witness
    certainty as a factor for evaluating reliability).
    6
    I joined the unanimous opinion of the Court in Smiley. That does not mean, though, that
    I owe continued allegiance to the reasoning and holding of that case in the face of all that
    we now understand about the frailty of the Manson test.
    13
    used for decades, to assess due process challenges to extrajudicial
    identification procedures. The reliability inquiry remains to be whether,
    under the totality of the circumstances, the challenged identification was
    reliable, despite the suggestiveness in the identification procedure.
    
    Id. at 14-15
    (footnote and citations omitted). The Court, again, too hastily dismisses the
    research that New Jersey and other courts have used to facilitate much needed procedural
    improvements in applying identification law.
    Departing from stare decisis?
    To be clear, I do not argue here that the Court adopt and apply to the present case a
    new test for determining the reliability of an eyewitness identification. What I do propose
    is that the Court, going forward, forgo its continued adherence to the Manson-Jones
    “framework[] which Maryland courts . . . have used for decades.” 
    Id. Such reliance
    is no
    reason to ignore science.
    It is of little surprise that the presence of one or more of the system variables listed
    in Henderson can significantly influence the outcome of a motion to suppress an
    eyewitness identification. The good news, as noted in Henderson, is that system variables
    are “within the State’s control.” 
    Henderson, 27 A.3d at 896
    . With diligence by legislatures
    and courts, procedures are being implemented to “take[] fully into account the scientific
    research on memory, perception, and the impact of system and estimator variables to
    continue to promote the due process concerns that originally animated this Court’s
    adoption of the Manson/Jones test,” Brief of Innocence Project at 24.
    It could be argued—and, indeed, the Court holds, slip op. at 15-16—that Maryland
    judges, acting individually, could consider many of the system and estimator variables
    14
    under the umbrella of the Biggers factors or that nothing prohibits a trial court’s
    consideration of additional factors. However, given that the Court today “do[es] not revise
    this Court’s jurisprudence for assessing the admissibility of eyewitness identifications,”
    slip op. at 15, there remains no requirement for a trial court to consider any factors other
    than the traditional five, flawed as they are.       Moreover, no additional prophylactic
    procedure, like the Henderson four-step, has been implemented.
    Enough of our sister states still retain the Manson-Jones framework that it cannot
    seriously be labeled a “remnant of [an] abandoned doctrine,” Houghton v. Forrest, 
    412 Md. 578
    , 587 (2010) (alteration in original). However, some states’ jurisprudence indicates
    that “the state of the law as a whole has evolved,” 
    id., or is
    fast evolving. We ought not be
    bound by precedent where it incorporates disproven assumptions or premises about the
    reliability of memory.
    Conclusion
    “[T]he law will always lag behind the sciences to some degree
    because of the need for solid scientific consensus before the law incorporates
    its teachings. . . .” Appellate courts have a responsibility to look forward,
    and a legal concept’s longevity should not be extended when it is established
    that it is no longer appropriate.
    
    Brodes, 614 S.E.2d at 771
    (alterations in original) (citations omitted).
    There is no reason Maryland cannot commit to a new framework. A variety of
    solutions could help Maryland courts, in ruling on a suppression motion, avoid the
    “primary evil” of “‘a very substantial likelihood of irreparable misidentification,’” 
    Biggers, 409 U.S. at 198
    , and help jurors better determine the weight to be accorded to an
    identification offered at trial. For those purposes, I suggest that this Court direct the Rules
    15
    Committee to craft and propose rules of procedure that bring scientific rigor to the
    assessment of an eyewitness identification that a defendant has challenged as unduly
    suggestive and, ultimately, unreliable.     To that end, worthy of consideration is the
    Henderson court’s new four-part procedure for evaluating suggestiveness and reliability.
    
    See 27 A.3d at 920
    , supra. I also endorse the concept of leaving “to the trial court the
    decision whether to allow expert testimony in an individual case.” 
    Id. at 925.
    Likewise, I
    suggest that this Court ask the Criminal Subcommittee of the Standing Committee on
    Maryland Pattern Jury Instructions to create a pattern jury instruction for use in the
    appropriate case, to better guide jurors. I await the day—which cannot come too soon—
    when this Court, prompted by the research on potential fallibility of eyewitness
    identification evidence, takes meaningful steps to improve Maryland’s pretrial and trial-
    related procedures, so as to mitigate, if not eliminate, the present concerns that attend the
    admission of, and weight given to, such evidence in future cases.
    Judge Adkins and Judge McDonald have authorized me to state that they join this
    opinion.
    16