       This opinion is subject to revision before publication


         UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                v.
             Andrew J. CRISWELL, Specialist
               United States Army, Appellant
                          No. 18-0091
                    Crim. App. No. 20150530
    Argued September 13, 2018—Decided November 16, 2018
    Military Judges: Matthew A. Calarco and Steven Walburn
   For Appellant: Captain Steven J. Dray (argued); Colonel
   Mary J. Bradley, Lieutenant Colonel Christopher D. Carri-
   er, and Captain Cody Cheek (on brief); Lieutenant Colonel
   Tiffany M. Chapman, Major Julie L. Borchers, and Cap-
   tain Matthew L. Jalandoni.
   For Appellee: Captain Natanyah Ganz (argued); Colonel
   Tania M. Martin, Lieutenant Colonel Eric K. Stafford, and
   Major Cormac M. Smith (on brief); Captain Catherine M.
   Parnell.
   Amicus Curiae for Appellant: Rachel L. Goot (law stu-
   dent) (argued); Deborah Ogali (law student) and J. An-
   drew Kent, Esq. (supervising attorney) (on brief) —
   Fordham University School of Law.

   Amicus Curiae for Appellee: Margaret Tomlinson (law
   student) (argued); Wendy Chiapaikeo (law student) and
   Thomas H. Lee, Esq. (supervising attorney) (on brief) —
   Fordham University School of Law.

   Judge MAGGS delivered the opinion of the Court, in
   which Chief Judge STUCKY and Judge RYAN joined.
   Judge OHLSON filed a separate dissenting opinion, in
   which Judge SPARKS joined.
                     _______________

   Judge MAGGS delivered the opinion of the Court.1


   1 We heard oral argument in this case at Fordham University
School of Law, New York, New York, as part of the Court’s Project
Outreach. This practice was developed as a public awareness pro-
            United States v. Criswell, No. 18-0091AR
                     Opinion of the Court

    A military judge, sitting as a general court-martial, con-
victed Appellant, contrary to his pleas, of one specification of
making a false official statement, two specifications of abu-
sive sexual contact, one specification of assault consummat-
ed by a battery, and one specification of indecent language
in violation of Articles 107, 120, 128, and 134, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. §§ 907, 920, 928, 934
(2012 & Supp. I 2014). The military judge sentenced Appel-
lant to a dishonorable discharge, confinement for two years,
and reduction to the grade of E−1. The military judge credit-
ed Appellant with one day of credit against the sentence of
confinement. The convening authority approved the sen-
tence as adjudged. The United States Army Court of Crimi-
nal Appeals (ACCA) affirmed, with one judge dissenting.
United States v. Criswell, No. ARMY 20150530, 2017 CCA
LEXIS 686, 2017 WL 5157737 (A. Ct. Crim. App. Nov. 6,
2017).
    We granted review on the issue of whether the military
judge abused his discretion in denying a defense motion to
suppress the accusing witness’s in-court identification of
Appellant. We conclude that the military judge did not
abuse his discretion, and we therefore affirm the judgment
of the Army Court.
                   I. Legal Background
    Eyewitness identifications are problematic in any crimi-
nal justice system. On one hand, eyewitness identifications
are often the most compelling evidence linking a suspect to a
crime. But on the other hand, experience has shown that
eyewitness identifications are not always accurate. Eyewit-
nesses can be mistaken because of anxiety, surprise, lack of
focus, or other factors at the time of the crime. As the Su-
preme Court has recognized, “[t]he vagaries of eyewitness
identification are well-known; the annals of criminal law are
rife with instances of mistaken identification.” United States
v. Wade, 388 U.S. 218, 228 (1967). In the military justice
system, the President has addressed these competing con-



gram to demonstrate the operation of a federal court of appeals
and the military justice system.



                               2
            United States v. Criswell, No. 18-0091AR
                     Opinion of the Court

cerns in Military Rule of Evidence (M.R.E.) 321.2 M.R.E. 321
is a complex provision that addresses testimony about out-
of-court eyewitness identifications (such as those which
might have occurred in a police station before trial) and in-
court eyewitness identifications (such as those in which a
witness points to the accused sitting at the defense table).
    M.R.E. 321(a) states a rule that generally makes rele-
vant testimony concerning eyewitness identifications admis-
sible. But M.R.E. 321(b) creates an exception to the rule,
providing that testimony about eyewitness identifications is
inadmissible if the identifications: (1) were “the result of an
unlawful lineup or other unlawful identification process”; or
(2) their exclusion is “required by the Due Process Clause of
the Fifth Amendment to the Constitution of the United
States as applied to members of the Armed Forces.” M.R.E.
321(c)(1) provides that a lineup or other identification pro-
cess is unlawful if the process “is so suggestive as to create a
substantial likelihood of misidentification.” This rule codifies
the two part-test established by the Supreme Court in Neil
v. Biggers, 409 U.S. 188 (1972). United States v. Baker, 70
M.J. 283, 288 (C.A.A.F. 2011) (citing United States v.
Rhodes, 42 M.J. 287, 290 (C.A.A.F. 1995)).
    In Baker, this Court applied a prior version of M.R.E. 321
by asking two questions.3 The first question was whether
the identification process at issue was “unnecessarily sug-
gestive.” Id. at 288 (citation omitted). Assuming that it was,
the second question was whether the process was “conducive
to a likelihood of misidentification.” Id. (citation omitted). In


   2   Appellant was tried in August 2015. The version of M.R.E.
321 applicable to his trial is found in the Supplement to Manual
for Courts-Martial, United States, Military Rules of Evidence
(2012 ed.). Executive Order 13,825 will slightly change the punc-
tuation of M.R.E. 321(a). See Exec. Order No. 13,825, 83 Fed. Reg.
9889, 10,092 (Mar. 1, 2018) (effective Jan. 1, 2019).
     3 The Court in Baker applied the version of M.R.E. 321 that
appears in the Manual for Courts-Martial, United States (2008
ed.). Although an amended version of M.R.E. 321 applicable to
this case has a different wording and organization, we believe that
it is still appropriate to ask the same questions that we asked in
Baker.




                                3
            United States v. Criswell, No. 18-0091AR
                     Opinion of the Court

answering the second question, the Court considered five
factors identified by the Supreme Court in Biggers and Man-
son v. Brathwaite, 432 U.S. 98 (1977). The five factors
(commonly called the “Biggers factors”) are: (1) the oppor-
tunity of the witness to view the perpetrator at the time of
the crime; (2) the witness’s degree of attention; (3) the accu-
racy of the witness’s prior description of the perpetrator; (4)
the witness’s demonstrated level of certainty during the con-
frontation; and (5) the elapsed time between the criminal act
and the confrontation. Manson, 432 U.S. at 114 (citing
Biggers, 409 U.S. at 199−200). The Court in Baker then
“weighed” against these factors “the corrupting effect of the
suggestive identification itself.” Baker, 70 M.J. at 291 (in-
ternal quotation marks omitted) (quoting Manson, 432 U.S.
at 114). The purpose of the weighing was to “determine
whether under the totality of the circumstances the identifi-
cation was reliable even though the confrontation procedure
was suggestive.” Id. (citing Biggers, 490 U.S. at 199).
    M.R.E. 321(d) identifies the burdens of proof in motions
to suppress both initial identifications and subsequent iden-
tifications. Subdivision (d)(6)(B)(i) provides: “When an objec-
tion raises the issue of an unreliable identification, the pros-
ecution must prove by a preponderance of the evidence that
the identification was reliable under the circumstances.”
Subdivision (d)(6)(B)(ii) then states: “When the military
judge determines that an identification is the result of an
unreliable identification, a later identification may be ad-
mitted if the prosecution proves by clear and convincing evi-
dence that the later identification is not the result of the in-
admissible identification.” The Court in Baker concluded
that a military judge had not abused his discretion in decid-
ing to suppress an in-court identification on the ground that
the in-court identification would be “significantly impacted”
by a prior unreliable identification. 70 M.J. at 292 (internal
quotation marks omitted). In arriving at this conclusion, the
Court noted that “even if reasonable minds could differ
about the application of the facts to the law, we cannot say
that the military judge’s decision to suppress the identifica-
tions was arbitrary or fanciful.” Id.




                               4
            United States v. Criswell, No. 18-0091AR
                     Opinion of the Court

        II. The Military Judge’s Findings of Fact
                 and Conclusions of Law
   In ruling on Appellant’s motion to suppress an in-court
identification of him by the accusing witness, Specialist AM,
the military judge made the following oral findings of fact:
           In November 2014, Specialist [AM] went to a
       party at the events center near Riverside Drive,
       Clarksville, Tennessee where there was a party to
       celebrate Austin Peay [State University]’s home-
       coming.
           Specialist [AM] went to the party with Special-
       ist Nasser Al-Shamesi and some other friends who
       were also Soldiers.
           While at the party, Specialist [AM] became
       separated from her friends when a step team
       started dancing. Specialist [AM] began walking
       around the edge of the room looking for her friends.
       While Specialist [AM] was walking along the edge
       of the room, an African-American male
       approximately 5’10” to 6’ in height, early 20s, black
       jacket, dark jeans, black and white bandana laying
       on his head, grill piece4 in his mouth approached
       her and allegedly made sexually suggestive
       comments, grabbed her head with both hands on
       her cheeks and forced her to kiss him, touched her
       thigh with his penis, and caused her to touch his
       penis . . . with her hand.
           At the time of the alleged comments and alleged
       assault, the room was very crowded, very loud, and
       very dark. The events alleged occurred approxi-
       mately 20 feet away from the DJ booth. There were
       moving lights coming from the DJ booth. The light
       did not illuminate much unless it shown directly on
       an object or other thing such as a person. If some-
       one was in the room was within 5 feet of another
       person when the light from the DJ booth went
       across that other person’s face, they would be able
       to clearly see the other person’s face. At the time
       Specialist [AM] alleges she was assaulted, her as-
       sailant was only centimeters away from her.


   4 From the ACCA’s opinion, we understand a “grill piece” to be
a type of jewelry worn over the teeth. Criswell, 2017 CCA LEXIS
686, at *4, 2017 WL 5157737 at *2.



                                5
     United States v. Criswell, No. 18-0091AR
              Opinion of the Court

    Specialist [AM]’s alleged assailant eventually
grabbed her by the wrist and led her toward a clos-
et, which they never entered but at that time, her
assailant forced her to kiss him again after which
he walked away.
    Specialist [AM] later found Specialist Al-
Shamesi near the bathrooms by the entrance at
which time she indicated she wanted to leave.
Specialist Al-Shamesi said he wanted to go to the
bathroom first, which he did leaving Specialist
[AM] to wait for him outside the bathrooms near
the entrance. There was some light coming from
the entrance.
    At this time, Specialist [AM]’s alleged assailant
approached her again and asked her why she was
standing there alone. She said she was waiting for
her boyfriend and he responded, “how about I take
you in there and show you how a real man [exple-
tive deleted] you” or words to that effect.
    The light coming from the entrance was on
them and coming from behind the alleged assail-
ant. This gave Specialist [AM] the ability to see his
face more clearly than she could earlier from the
light coming from the DJ booth. . . . As soon as Spe-
cialist Al-Shamesi came out of the bathroom Spe-
cialist [AM] went outside with him and told him
what happened and eventually described her al-
leged assailant. When Specialist Al-Shamesi heard
the description of the alleged assailant, he was re-
minded of a person he saw earlier in the evening
that was there with his friends described as Ste-
phens and Connor.
    The room at the events center was darker than
the courtroom today. There were more than 50 peo-
ple at the party maybe as many as 100 and a large
percentage were African American. There were
many African-American males between 5’10” and 6
feet tall in their early 20’s.
    Later the next day, at the [United States Army
Criminal Investigation Command (CID)] office,
Specialist Al-Shamesi showed a photo from his
phone to Special Agent Pflaume. Special Agent
Pflaume showed the photograph to Specialist [AM]
who identified the photograph as the person who
assaulted her the night before. Special Agent
Pflaume showed Specialist [AM] a single photo-



                         6
            United States v. Criswell, No. 18-0091AR
                     Opinion of the Court

       graph[,] and it was of the accused. Special Agent
       Pflaume did not arrange a photo array or present
       Specialist [AM] any other options but to say that
       the photograph she was seeing was or was not the
       man who assaulted her. Specialist [AM] IDed [i.e.,
       identified] the man in the photograph shown to her
       by Special Agent Pflaume immediately and without
       hesitation. Specialist [AM] made an in court identi-
       fication of the accused as the man who assaulted
       her at an Event Center near Riverside Drive in
       Clarksville, Tennessee in November of 2014.
    On the basis of these findings of fact, the military judge
concluded that testimony about Specialist AM’s identifica-
tion of Appellant in the CID office would have been sup-
pressible under M.R.E. 321(c)(1) and (d)(6)(B)(i) if the Gov-
ernment had sought to introduce it. But the military judge
denied Appellant’s motion to suppress an in-court identifica-
tion of Appellant by Specialist AM under M.R.E. 321(c)(1)
and (d)(6)(B)(ii). Additional details about the military judge’s
rulings appear below. The ACCA affirmed this ruling on ap-
peal. Criswell, 2017 CCA LEXIS 686, at *24, 2017 WL
5157737 at *9.
                        III. Discussion
    This Court reviews a military judge’s ruling on a motion
to suppress an eyewitness identification for abuse of discre-
tion, viewing the evidence in the light most favorable to the
prevailing party. See Baker, 70 M.J. at 287−88. The parties
agree that a military judge “abuses his discretion when his
findings of fact are clearly erroneous, the court’s decision is
influenced by an erroneous view of the law, or the military
judge’s decision on the issue at hand is outside the range of
choices reasonably arising from the applicable facts and the
law.” United States v. Irizarry, 72 M.J. 100, 103 (C.A.A.F.
2013) (citations omitted) (internal quotation marks omitted).
Applying this standard in this case, we do not undertake a
de novo analysis of whether the in-court identification
should have been admitted. Instead, we focus on Appellant’s
objections to the military judge’s findings of fact, view of the
law, and conclusions in applying the law to the facts.5 As in


   5  In preparing their briefs and oral arguments, counsel can
help the Court most if they not only identify the applicable stand-


                                7
            United States v. Criswell, No. 18-0091AR
                     Opinion of the Court

Baker, we again observe that the “standard of review . . . in
this case is critical to the outcome.” 70 M.J. at 287.
A. Whether the Military Judge’s Findings of Fact
Were Clearly Erroneous
    A finding of fact is clearly erroneous when there is no ev-
idence to support the finding, see, e.g., United States v.
Siroky, 44 M.J. 394, 395 (C.A.A.F. 1996), or when, “although
there is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm conviction
that a mistake has been committed,” United States v. Mar-
tin, 56 M.J. 97, 106 (C.A.A.F. 2001) (internal quotation
marks omitted) (quoting United States v. U.S. Gypsum Co.,
333 U.S. 364, 395 (1948)).
    In his brief and reply brief, Appellant does not argue that
any findings of fact by the military judge were “clearly erro-
neous.”6 At oral argument, however, Appellant asserted that
the military judge erroneously found five facts: (1) Specialist
AM had identified her assailant as being between five feet
ten inches and six feet tall; (2) her assailant was in his early
20s; (3) he was wearing a black jacket; (4) he was wearing
dark jeans; and (5) he had had a “grill piece” in his mouth.
See Recording of Oral Argument at 3:56–4:17, United States
v. Criswell, 18-0091 (C.A.A.F. Sept. 13, 2018). Appellant con-
tends that the military judge’s findings were “clearly errone-
ous” because Specialist AM never told anyone those facts be-
fore participating in the photo identification at the CID
office. See id. at 3:31–5:20. In Appellant’s view, discussed
further below, any description that Specialist AM made after
the photo identification is legally irrelevant.
   We disagree with Appellant’s reasoning. Under the
standards quoted above, findings of fact are clearly

ard of review but also explicitly frame their arguments in terms of
the standard of review.
   6 Appellant argues that two factual statements in the CCA’s
opinion are “clearly erroneous.” Final Brief on Behalf of
Appellant at 10 n.7 & 17 n.10, United States v. Criswell, No.
18-0091, (C.A.A.F. Mar. 14, 2018). In this appeal, however, we
are concerned with the military judge’s findings of fact and not
the ACCA’s characterization of the evidence. See Baker, 70 M.J.
at 288.


                                8
            United States v. Criswell, No. 18-0091AR
                     Opinion of the Court

erroneous if they lack sufficient support in the record. See
Martin, 56 M.J. at 106. Legal relevance is not part of these
standards. During oral argument, Appellant conceded that
Specialist AM testified as to each of these facts at trial. See
Criswell Oral Argument Recording at 5:04–5:06. Having
reviewed the relevant portions of the record of trial, we
conclude that the military judge’s findings quoted above are
not clearly erroneous. We address the separate question of
whether the challenged facts are legally relevant below.
B. Whether the Military Judge’s View of the Law Was
Erroneous
    Appellant does not argue that the military judge’s
general understanding of M.R.E. 321 was erroneous. In
accordance with our approach in Baker, the military judge
expressly recognized that the admissibility of an eyewitness
identification under M.R.E. 321(c) depends on two questions.
The military judge, paraphrasing our wording in Baker,
asked: “was there a pretrial identification unnecessarily
suggestive and if it was, if so, was there a substantial
likelihood of a misidentification later?” In addressing the
first of these questions, the military judge properly assumed,
in the absence of contrary proof by the Government, that the
identification at the CID office was unnecessarily
suggestive. See Simmons v. United States, 390 U.S. 377,
383−84 (1968) (recognizing that a misidentification may
occur if the police display only one photograph to a witness,
as the CID agent did in this case); see also Baker, 70 M.J. at
288–89 (same). In answering the second question, the
military judge analyzed each of the five Biggers factors in
detail. He also considered “all the surrounding
circumstances.” The military judge also correctly understood
that under M.R.E. 321(d)(6)(B)(ii), if an initial identification
is inadmissible, “a later identification may be admitted if the
prosecution proves by clear and convincing evidence that the
later identification is not the result of the inadmissible
identification.”
   Appellant, however, asserts that the military judge mis-
understood two very specific aspects of the law. First, Appel-
lant contends that the military judge incorrectly believed
that he could determine whether Specialist AM’s in-court
identification was the result of the inadmissible identifica-


                               9
            United States v. Criswell, No. 18-0091AR
                     Opinion of the Court

tion at the CID office without looking at the photograph that
the CID agent had shown Specialist AM. In Appellant’s
view, a military judge generally must examine any photo-
graph used to make a prior identification before determining
that the government has met its burden under M.R.E.
321(d)(6)(B)(ii). Appellant reasons that, without viewing the
photograph in this case, the military judge could not deter-
mine whether Specialist AM’s in-court identification was
based on what she had seen at the party or instead whether
it was based on what she had seen at the CID office.
    We disagree. The rule suggested by Appellant finds no
support in the text of M.R.E. 321(d)(6)(B)(ii). Appellant also
has cited no constitutional authority for his suggested rule.
Indeed, such a rule would be contrary to the decisions of the
Supreme Court and other federal courts. In Simmons, 390
U.S. at 382−89, the Supreme Court concluded that a federal
district court did not abuse its discretion in denying a mo-
tion to suppress an in-court identification on grounds that it
was the result of a prior suggestive identification based on
photographs. The Court reached this conclusion even though
the photographs shown to the witnesses were not produced
by the government. See id. at 387; accord United States v.
Scriber, 499 F.2d 1041, 1047 (D.C. Cir. 1974) (upholding
admission of an in-court identification even though “the
Government was unable to make the photographic array
[that was previously] displayed to identifying witnesses
available at trial”); see also United States v. Russell, 532
F.2d 1063, 1067−68 (6th Cir. 1976) (same). To be sure, with-
out producing the photographs used in a suggestive prior
identification, the government in some cases will have diffi-
culty proving by clear and convincing evidence that “the lat-
er identification is not the result of the inadmissible identifi-
cation” as required by M.R.E. 321(d)(6)(B)(ii). But the
government may be able to meet this burden by other
means.
    Second, Appellant asserts that the military judge incor-
rectly believed that he could consider descriptions of Appel-
lant that Specialist AM made after her interview in the CID
office in deciding whether her in-court identification of Ap-
pellant was the result of the inadmissible identification at
the CID office. Appellant believes that under M.R.E.


                               10
           United States v. Criswell, No. 18-0091AR
                    Opinion of the Court

321(d)(6)(B)(ii), the military judge could consider only the
very limited descriptions that Specialist AM made before her
interview in the CID office.
    Again, we disagree. The suggested limitation of what the
military judge may consider finds no support in the text of
M.R.E. 321(d)(6)(B)(ii). Appellant also has cited no cases
supporting such a view. In addition, we note that in Sim-
mons, the Supreme Court looked at the strength of the eye-
witnesses’ testimony in court to determine whether their
testimony was the result of an earlier suggestive photo-
graph. 390 U.S. at 385−86. While a military judge may
choose to accord greater weight to statements made by a
witness before the witness has seen a suggestive photo-
graph, there is no rule prohibiting the military judge from
considering subsequent descriptions of the accused in apply-
ing M.R.E. 321(d)(6)(B)(ii).
   Finally, in our own review of the record, we have noted
one additional issue concerning the military judge’s view of
the law that we believe merits discussion. In Baker, as we
have described above, this Court took a further step after
analyzing the five Biggers factors. Specifically, this Court
“weighed” against these factors “the corrupting effect of the
suggestive identification itself.” Baker, 70 M.J. at 291 (in-
ternal quotation marks omitted) (quoting Manson, 432 U.S.
at 114). In reviewing the trial transcript in this case, we
note that the military judge did not expressly describe his
“weighing” of the Biggers factors against the effects of the
suggestive CID office identification. This omission raises the
question whether, therefore, the military judge’s decision
was influenced by an erroneous view of the law.
   We conclude that the military judge’s omission of an ex-
press discussion of weighing the Biggers factors against the
suggestiveness of the initial identification does not indicate
that the military judge had an incorrect view of the law for
several reasons. First, Appellant does not contend, either in
his briefs or his oral argument that the military judge mis-
understood this aspect of the M.R.E. 321 analysis. Second,
we presume in the absence of clear evidence to the contrary,
that military judges know the law and follow it. United
States v. Mason, 45 M.J. 483, 484 (C.A.A.F. 1997). Third, the
point of the weighing process was to “determine whether


                             11
             United States v. Criswell, No. 18-0091AR
                      Opinion of the Court

under the totality of the circumstances the identification
was reliable even though the confrontation procedure was
suggestive.” Baker, 70 M.J. at 291 (citing Biggers, 490 U.S.
at 199). In this case, the military judge emphasized that he
had considered “all the surrounding circumstances” in de-
termining that the in-court identification was reliable. Fi-
nally, we note that in Baker, the military judge made a simi-
lar but slightly different omission in his analysis, but we did
not construe that as an error of law.7
C. Whether the Military Judge’s Conclusions Were
Outside the Range of Reasonable Choices
   Appellant’s remaining arguments essentially challenge
the conclusions that the military judge drew when applying
the law to the facts. Under the abuse of discretion stand-
ard—because the military judge did not make clearly erro-
neous findings of facts and did not exhibit a misunderstand-
ing of the law—we are limited to considering whether the
military judge’s conclusion with respect to any issue “is out-
side the range of choices reasonably arising from the appli-
cable facts and the law.” Irizarry, 72 M.J. at 103 (citation
omitted) (internal quotation marks omitted). Under this def-
erential standard, we see no error.
   The first Biggers factor is the opportunity to view the
perpetrator at the time of the crime. 409 U.S. at 199. At the
party, Specialist AM was confronted not once, but twice.
During the second confrontation, Specialist AM was able to

   7   In Baker, the military judge did not separately first ask
whether the identification was unnecessarily suggestive and then
second use the Biggers factors to determine whether the identifi-
cation was nonetheless reliable. Instead, the military judge relied
on “the Biggers factors to determine whether the identification
was ‘unnecessarily suggestive’ as well as whether it was ‘condu-
cive to a substantial likelihood of misidentification.’ ” Baker, 70
M.J. at 288 (quoting United States v. Baker, 2011 CCA LEXIS 52,
at *13–18, 2011 WL 891345, at *4–6 (A. Ct. Crim. App. Mar. 7,
2011)). Although we noted the unorthodox conflation of the two
questions, we nonetheless concluded that “the military judge pro-
vided a detailed ruling evidencing an accurate understanding of
the Biggers factors and their application to the facts on the rec-
ord.” Id. at 289. We therefore gave deference to his ruling. See id.




                                12
            United States v. Criswell, No. 18-0091AR
                     Opinion of the Court

identify her assailant quickly as the same man who had as-
saulted her earlier. The military judge concluded that dur-
ing these two confrontations, Specialist AM was “in the
presence of her assailant for a significant amount of time”
and could see her assailant’s face “clearly” in the light from
the DJ booth and “even more clearly” in the light from the
bathroom. Appellant acknowledges that the military judge’s
conclusion is not based on clearly erroneous findings of fact.
But Appellant argues that the military judge should have
given more weight to Specialist AM’s testimony that the
party was “almost pitch black,” that it was “very hard to
see,” that she could not see her friends, and that she appar-
ently did not see the bold writing on Appellant’s shirt. Ap-
pellant also suggests that the military judge did not take in-
to account the possibility that her assailant may have been
wearing a disguise. In applying the abuse of discretion
standard, the question is not whether conflicting evidence—
such as the evidence about visibility at the party—might
have been weighed differently. The question is only whether
the military judge made a decision outside of the range of
reasonable choices. Irizarry, 72 M.J. at 103. Viewing the rel-
evant evidence in the light most favorable to the Govern-
ment, we conclude he did not.
    The second Biggers factor is “the witness’[s] degree of at-
tention.” 409 U.S. at 199. The military judge concluded that
Specialist AM was “extremely attentive to her assailant’s
features during the time that she was in his presence.” Ap-
pellant disputes this conclusion. He argues that Specialist
AM’s only description of him before viewing the photograph
at the CID office was not detailed. In addition, Appellant
emphasizes that although Specialist AM said that she could
identify him in court because of his facial features, she did
not identify or describe the particular features she recog-
nized. Appellant also notes that Specialist AM failed to no-
tice that Appellant had gained thirty pounds between the
time of the party and the time of the trial.8 Appellant fur-

   8  The record does not actually establish that Appellant gained
thirty pounds before trial. Defense counsel asked Specialist AM at
trial if she had noticed a thirty-pound weight gain, but defense
counsel did not produce any evidence to show that this weight
gain had occurred.



                               13
            United States v. Criswell, No. 18-0091AR
                     Opinion of the Court

ther argues that Specialist AM would have had difficulty be-
ing attentive given the amount of stress that she was under
while being assaulted. Again, we have already concluded
that the military judge was not limited to considering only
statements made before seeing the CID photo. We cannot
say that the military judge failed to make a reasonable con-
clusion when we view the evidence in the light most favora-
ble to the Government.
    The third Biggers factor is “the accuracy of the wit-
ness’[s] prior description” of the alleged perpetrator. 409
U.S. at 199. The military judge concluded Specialist AM
gave a “very detailed description of her assailant” and that
Specialist Al-Shamesi determined whom she was describing
“based on the accuracy of [her] description.” Appellant ar-
gues that this conclusion is incorrect. He points out that be-
fore Specialist AM spoke to the CID office, the only descrip-
tion that she had made identified her assailant as a black
man wearing a bandana, and she did not mention he was
wearing a grill piece. We agree that Specialist AM’s initial
description of her assailant to Specialist Al-Shamesi was not
exceptionally detailed. However, as explained above, Spe-
cialist Al-Shamesi interrupted Specialist AM before she
could say anything more about her assailant. We see no evi-
dence in the record that this initial description lacked detail
because Specialist AM’s memory of the event was imprecise.
Appellant additionally asserts that when Specialist AM later
gave a more detailed description, there were discrepancies
between her account and a photograph of Appellant taken at
the party. She said that he was wearing a black and white
bandana and a black shirt while the photograph showed him
wearing a blue hat and shirt with bold graphics. Again, we
have rejected the suggestion that the military judge could
consider only the descriptions made by Specialist AM before
seeing the photograph at the CID office. We also observe
that the military judge expressly stated that he considered
the photograph, and therefore he knew of the discrepancies.
In these circumstances, the military judge’s conclusion that
Specialist AM’s description was “accurate” was within his
discretion to make.
   The fourth Biggers factor is “the level of certainty
demonstrated by the witness at the confrontation.” 409 U.S.


                              14
             United States v. Criswell, No. 18-0091AR
                      Opinion of the Court

at 199. The military judge concluded that Specialist AM’s
identification of Appellant “when seeing the picture, was
immediate and certain.” Appellant argues that this conclu-
sion is incorrect because the only testimony on point came
from a CID agent. While the CID agent testified to the speed
of her identification of Appellant, he never expressly ad-
dressed her level of confidence. The precise testimony was as
follows:
       Q. . . . Approximately how long would you say that
       it took for her to make a response after you showed
       her the photo?
       A. Mere seconds, sir. I mean, it was—she didn't
       look at it and take her time. It was quite fast.
       Q. And did she say anything else about it?
       A. No, not just other than that she identified that
       person from the incident that occurred earlier.
    In this testimony, the CID Agent did not expressly say
that Specialist AM was “certain” or “confident” when she
quickly identified Appellant from the photograph. But view-
ing the facts in the light most favorable to the Government,
see United States v. Piren, 74 M.J. 24, 28 (C.A.A.F. 2015), an
inference that she was certain from the speed of her identifi-
cation is not unreasonable. While speed does not always
equate with certainty, it was within the military judge’s dis-
cretion to conclude that it did in this case.9 See United States
v. Crews, 445 U.S. 463, 473 & n.18 (1980) (“attach[ing] par-
ticular significance” to the fact that a witness identified the
perpetrator “without hesitation” when upholding the trial
court’s decision that a courtroom identification rested on in-
dependent recollection).
    Appellant does not contest the military judge’s conclusion
with respect to the fifth Biggers factor, which is “the length
of time between the crime and the confrontation.” 409 U.S.
at 199-200. The military judge concluded that “the time be-
tween the crime and the confrontation which was less than

   9 We recognize that a witness’s certainty in testifying does not
prove that the witness is testifying accurately. A witness may, in
good faith, hold a belief that is contrary to the actual facts. We de-
cide only that the military judge did not abuse his discretion in
addressing the fourth Biggers factor.



                                 15
             United States v. Criswell, No. 18-0091AR
                      Opinion of the Court

24 hours a very short amount of time leaving little oppor-
tunity for Specialist [AM] to forget whatever she remem-
bered about her assailant and therefore be persuaded by see-
ing only a single picture.” We agree that this conclusion was
not an abuse of discretion.
    Appellant, however, argues that the military judge
abused his discretion with respect to other factors not listed
in Biggers and Manson. Appellant contends the military
judge failed to consider the “likelihood of other individuals in
the area at the time of the offense matching the description
given by the victim.” Rhodes, 42 M.J. at 291. Appellant also
asserts that the military judge did not give sufficient weight
to the fact that this case “involved a highly stressful, vio-
lence-threatening, and cross-racial crime occurring in mini-
mal lighting with a partially disguised assailant.”
    Although we agree with Appellant that the inquiry under
M.R.E. 321 is not limited to the five Biggers factors, we see
no reason to believe that the military judge overlooked or
gave insufficient weight to the additional factors that Appel-
lant mentions.10 Defense counsel made extensive arguments
to the military judge about the minimal lighting and the as-
sailant’s attire, and the military judge expressly addressed
both of these factors in his findings of fact. The military
judge knew the race of Specialist AM from her testimony
and specifically addressed the race of her assailant in his
findings of fact. The military judge made findings regarding
the percentage of African Americans attending the party
and the number who were roughly the same height as Ap-
pellant. The military judge also described in his findings of
fact the stressful confrontations between Specialist AM and
her assailant. And in announcing his final conclusion, the
military judge said:
            The Court considered the environmental factors
        and the description given by the alleged victim, in
        this case, and given all the surrounding circum-
        stances the alleged victim’s description is not so far


   10  Although we do not reach the issue of waiver, we note that
defense counsel did not expressly argue at trial that the “cross-
racial” nature of this crime made Specialist AM’s identification
unreliable.



                                 16
            United States v. Criswell, No. 18-0091AR
                     Opinion of the Court

      removed from . . . what one might expect, again,
      given the evidence known to the Court, at this
      time, that that in and of itself the discrepancies
      raised by the defense on cross-examination in and
      of themselves so concern the Court as to disallow
      the in court identification.
Given the military judge’s express statement that he had
considered “all the surrounding circumstances,” and no rea-
son for believing that he did not, we cannot conclude that
the military judge abused his discretion.
    In a separate line of argumentation, Appellant contends
that the military judge in the end was simply wrong to con-
clude that the Government had proved by clear and convinc-
ing evidence that the photograph at the CID office did not
“taint” Specialist AM’s subsequent in-court identification in
light of Specialist AM’s testimony. Appellant notes that Spe-
cialist AM testified that she could recognize Appellant based
on his facial features, the shape of his head, and the shape of
his body that she observed at the party. But Appellant ar-
gues that she in fact may have identified him based on the
picture at the CID office. Appellant points out that Special-
ist AM did not describe any recognizable “facial features”
prior to seeing the photo and did not provide any testimony
during her in-court identification about which “facial fea-
tures” she recognized from nine months earlier. Appellant
also argues that Specialist AM could not have assessed the
shape of his head at the party because a bandana “cloaked”
its shape. In addition, Appellant asserts that Specialist AM
would have had a limited ability to assess the size of his
body at the party because he was wearing a jacket and that
Appellant did not look the same in court because he pur-
portedly weighed thirty pounds more at the time of trial
than he did at the party.
    We disagree. As explained above, no rule required the
military judge to consider only the features that Specialist
AM had described before the identification at the CID office.
In addition, Appellant does not cite evidence to support his
speculation about the extent to which the bandana and coat
might have concealed the shape of Appellant’s face and body
at the time of the party or how much his purported weight
gain changed his appearance. Accordingly, we determine



                              17
            United States v. Criswell, No. 18-0091AR
                     Opinion of the Court

that the military judge’s conclusion on this issue was not
“outside the range of choices reasonably arising from the ap-
plicable facts and the law.” Irizarry, 72 M.J. at 103 (citation
omitted) (internal quotation marks omitted).
                       IV. Conclusion
    We conclude that the military judge did not abuse his
discretion in denying Appellant’s motion to suppress Spe-
cialist AM’s in-court identification.
                        V. Judgment
   The decision of the United States Army Court of Crimi-
nal Appeals is affirmed.




                              18
            United States v. Criswell, No. 18-0091/AR


   Judge OHLSON, with whom Judge SPARKS joins,
dissenting.

    Justice Brennan once famously observed: “There is al-
most nothing more convincing than a live human being who
takes the stand, points a finger at the defendant, and says
‘That’s the one!’” Watkins v. Sowders, 449 U.S. 341, 352
(1981) (Brennan, J., with whom Marshall, J., joined, dissent-
ing) (emphasis in original) (citation omitted) (internal quota-
tion marks omitted). This scenario set forth by Justice
Brennan closely echoes what happened at trial in the in-
stant case, and notably, Appellant subsequently was con-
victed contrary to his pleas. Thus, it is apparent that the de-
cision by the military judge to admit into evidence the
victim’s in-court identification of Appellant as her assailant
was important. Moreover, it is apparent that in reaching his
decision to admit this evidence, the military judge abused
his discretion because: “(1) he predicate[d] his ruling on find-
ings of fact that [were] not supported by the evidence of rec-
ord; (2) he use[d] incorrect legal principles; [and] [(3)] he
fail[ed] to consider important facts.” United States v.
Commisso, 76 M.J. 315, 321 (C.A.A.F. 2017) (citation omit-
ted). Finally, it is apparent that this abuse of discretion was
not harmless beyond a reasonable doubt. Therefore, I re-
spectfully dissent.
                      I. Applicable Law
    Military Rule of Evidence (M.R.E.) 321 governs eyewit-
ness identifications. This rule provides that an in-court iden-
tification of an accused as the perpetrator of an offense is
“inadmissible if,” in relevant part, this identification violates
“the Due Process Clause of the Fifth Amendment to the
Constitution of the United States as applied to members of
the Armed Forces.” M.R.E. 321(b)(2).
   When, as here, the military judge determines that an
out-of-court identification “is the result of an unreliable
identification,” an in-court “identification may be admitted if
the prosecution proves by clear and convincing evidence that
the later identification is not the result of the [prior] inad-
missible identification.” M.R.E. 321(d)(6)(B)(ii). Placing this
burden on the government is appropriate because, as the
Supreme Court has noted, if an impermissibly suggestive
out-of-court identification must be excluded at trial, then “a
courtroom identification based on such a lineup logically
ha[s] to be excluded as well.” Watkins, 449 U.S. at 349 (em-
              United States v. Criswell, No. 18-0091/AR
                    Judge OHLSON, dissenting

phasis added) (citing United States v. Wade, 388 U.S. 218
(1967)).
    The Supreme Court has stated that “convictions based on
eyewitness identification at trial following a [police-
arranged1] pretrial identification by photograph will be set
aside on that ground only if the photographic identification
procedure was so impermissibly suggestive as to give rise to
a very substantial likelihood of irreparable misidentifica-
tion.” Simmons v. United States, 390 U.S. 377, 384 (1968).
Stated more succinctly, “[i]t is the likelihood of misidentifi-
cation which violates a defendant’s right to due process.”
Neil v. Biggers, 409 U.S. 188, 198 (1972).2
    The Supreme Court has enunciated, and we have adopt-
ed, a two-step process for determining whether an in-court
identification is inadmissible under the Due Process Clause.
Id.; see also United States v. Baker, 70 M.J. 283, 288
(C.A.A.F. 2011); United States v. Rhodes, 42 M.J. 287, 290
(C.A.A.F. 1995). First, military judges must determine
whether the “pretrial identification [procedure was] unnec-
essarily suggestive.” Rhodes, 42 M.J. at 290. Second, if this
pretrial procedure was unnecessarily suggestive, military
judges must next examine whether the improper procedure
was “conducive to a substantial likelihood of misidentifica-
tion” at trial. Id.
    In the instant case, we are only concerned with the se-
cond inquiry because the military judge found, and the Gov-
ernment does not dispute, that the pretrial identification
procedure used by the United States Army Criminal Inves-
tigation Command (CID) was unnecessarily suggestive. To
determine whether an improperly conducted out-of-court
identification procedure “leads to a substantial likelihood of
mistaken identi[t]y at the time of trial,”3 military judges
must determine “whether under the ‘totality of the circum-

   1 See Perry v. New Hampshire, 565 U.S. 228, 232 (2012) (hold-
ing that due process is violated only when there is “improper law
enforcement activity”).
   2  “The due process check for reliability … comes into play only
after the defendant establishes improper police conduct.” Id. at
241. Because the unduly suggestive identification procedure in
this case was a result of law enforcement’s actions, this case in-
volves improper police conduct.
   3   Rhodes, 42 M.J. at 290.




                                 2
            United States v. Criswell, No. 18-0091/AR
                  Judge OHLSON, dissenting

stances’ the [in-court] identification was reliable even
though the [pretrial] confrontation procedure was sugges-
tive.” Biggers, 409 U.S. at 199; Baker, 70 M.J. at 291. In oth-
er words, “reliability is the linchpin in determining the ad-
missibility of identification testimony.” Manson v.
Brathwaite, 432 U.S. 98, 114 (1977); see also Watkins,
449 U.S. at 347 (“It is the reliability of identification evi-
dence that primarily determines its admissibility.”).
   The Supreme Court has held that “the factors to be con-
sidered in evaluating the likelihood of misidentification in-
clude” the following five factors:
       [(1)] the opportunity of the witness to view the
       criminal at the time of the crime, [(2)] the witness’
       degree of attention, [(3)] the accuracy of the wit-
       ness’ prior description of the criminal, [(4)] the level
       of certainty demonstrated by the witness at the
       confrontation, and [(5)] the length of time between
       the crime and the confrontation.
Biggers, 409 U.S. at 199–200 (emphasis added); see also
Brathwaite, 432 U.S. at 114; Rhodes, 42 M.J. at 291. This
non-exhaustive list has become known as the “Biggers fac-
tors.” Baker, 70 M.J. at 288.
    It is important to underscore that the Biggers factors are
intended to assess the independent reliability of the in-court
identification; they are not intended to determine the likely
correctness of the in-court identification once it is viewed in
the broader context of the corroborating evidence
implicating the accused in the offense. Brathwaite, 432 U.S.
at 116 (noting that the Biggers factors serve as “indicators of
[the witness’s] ability to make an accurate identification”
and stating that evidence corroborating the identification
“play[ed] no part in” the court’s reliability analysis (emphasis
added)).
   The Supreme Court has further held that “[a]gainst
these [Biggers] factors is to be weighed the corrupting effect
of the suggestive identification itself.” Id. at 114; Baker,
70 M.J. at 291. That is, military judges must first determine
the “indicators of [an accused’s] ability to make an accurate
identification,” and then must determine whether the factors
that favor a witness’s ability to make an accurate
identification are “outweighed by the corrupting effect of the
challenged identification itself.” Brathwaite, 432 U.S. at 116.
Thus, only “if the indicia of reliability are strong enough to




                                  3
             United States v. Criswell, No. 18-0091/AR
                   Judge OHLSON, dissenting

outweigh the corrupting effect of the police-arranged
suggestive circumstances [should] the identification
evidence … be admitted” for the factfinder to “ultimately
determine its worth.” Perry, 565 U.S. at 232.
                            II. Analysis
    In my view, the military judge committed three errors in
this case.4 First, he made clearly erroneous findings with
respect to three of the five Biggers factors. Second, he failed
to articulate whether he considered two applicable factors as
part of a required totality of the circumstances analysis. And
third, he did not weigh the Biggers factors against the cor-
rupting effect of the suggestive CID pretrial identification
procedure. I now turn to a discussion of each of these errors.
                           A. Clear Error
    The military judge clearly erred in evaluating three of
the Biggers factors. First, he erred in evaluating the second
Biggers factor—the victim’s degree of attentiveness at the
time of the offense—by relying squarely on the victim’s
detailed trial testimony about her assailant’s appearance.
The military judge found that the victim’s trial “testimony
demonstrates that she was extremely attentive to her
assailant’s features, during the time that she was in his
presence.” However, the victim’s in-court description of her
assailant’s features was tainted by the previous highly
suggestive out-of-court identification process. Stated
differently, in terms of the independent reliability of an in-
court identification, the degree of attention of a witness at

   4  Although I disagree with his ruling, this opinion is not in-
tended as a criticism of the military judge. This is a complex area
of the law as reflected by the split in our own Court in the instant
case and by the length of our respective opinions. The military
judge did not have the luxury of engaging in extensive research
and analysis before reaching his conclusion. Trial defense counsel
was within the rules set forth by the President to file the motion
on the day the court-martial was to begin because pleas had not
been entered. M.R.E. 321(d)(2). See United States v. Williams,
23 M.J. 362, 366 (C.M.A. 1987) (holding that local rules of practice
may not override the rules established by the President in the Mil-
itary Rules of Evidence). However, trial defense counsel should
carefully consider whether such belated filings best serve their
clients’ interests as early filings will allow the military judge addi-
tional time to research complex legal areas such as the one at is-
sue here.




                                  4
            United States v. Criswell, No. 18-0091/AR
                  Judge OHLSON, dissenting

the time of an offense primarily should be gauged by the
level of detail provided by the witness before any tainted
identification process—not after. Thus, in the instant case,
the military judge’s focus on the witness’s trial testimony
about the assailant’s features does not, standing alone,
provide sufficient support for his finding that the victim was
“extremely attentive to her assailant’s features” at the time
of the offense.
    Second, the military judge clearly erred in evaluating the
third Biggers factor—the accuracy of the prior description—
by finding that the victim “gave a very detailed description
of her assailant.” The record shows that the victim twice de-
scribed her assailant before CID’s suggestive identification
procedure took place, but neither of those descriptions could
be fairly characterized as “very detailed.” Specifically, the
victim (1) told her friend that the assailant was “a black
male, who was wearing a black and white bandana flat on
top of his head”;5 and (2) informed CID that her assailant
was “wearing all black, with a black bandana” and was “be-
tween 5’10” and 6’, in [his] early 20’s.” In light of the fact
that the incident occurred at a very large college party
where the vast majority of the attendees were African Amer-
ican, neither description can be said to contain any compel-
ling distinguishing characteristics except for the assailant’s
apparel—and importantly, Appellant was not wearing this
same apparel when the victim identified him in the out-of-
court photograph6 or at trial. The military judge therefore


   5  It is not relevant that the victim may have been able to pro-
vide a more detailed description of her assailant if the victim’s
friend had not stopped her from elaborating further. I first note
that the victim’s rudimentary description of her assailant was not
truncated by any action of the defense—it was the victim’s own
friend who caused her to stop talking. Second, in bearing the bur-
den of establishing the admissibility of the in-court identification
pursuant to the provisions of M.R.E. 321(d)(6)(B)(ii), the Govern-
ment is stuck with the facts that are in the record—it cannot rely
upon mere suppositions. And finally, based on the victim’s CID
statement twenty-four hours later, it is apparent that she did not
have any particularly compelling additional details to provide
about her assailant’s appearance—even when she was not being
interrupted.
   6  The victim described this photograph as “like a profile pic-
ture from Facebook.” The CID agent described the photograph as




                                 5
            United States v. Criswell, No. 18-0091/AR
                  Judge OHLSON, dissenting

clearly erred in finding the victim’s description of her assail-
ant to be “very detailed.”7
    Third, the military judge erred with respect to the fourth
Biggers factor—the victim’s degree of certainty about the
out-of-court identification—by finding that the victim identi-
fied Appellant “with certainty.” The record reflects that nei-
ther the victim nor the CID agent testified about the cer-
tainty of the identification made by the victim. Instead, the
military judge seemed to equate the immediacy of the vic-
tim’s identification with certainty. However, these are sepa-
rate concepts. Indeed, it would be troubling if the speed with
which a witness identifies a suspect in the course of a highly
suggestive identification process that contains only one pho-
tograph could be heavily relied upon as evidence of the accu-
racy of that identification. Thus, I conclude that in the ab-
sence of testimony about the certainty of the victim’s out-of-
court identification, the military judge clearly erred in his
findings regarding the fourth Biggers factor.
                    B. Application of the Law
   In addition to these clearly erroneous factual findings,
the military judge misapplied the law in two ways.
                1. Totality of the Circumstances
   As noted supra, military judges must specifically
determine whether “under the totality of the circumstances”
the in-court identification was reliable despite the prior
suggestive out-of-court identification. Biggers, 409 U.S. at
199; Baker, 70 M.J. at 291. In the instant case, there is an
insufficient basis in the record to conclude that the military
judge conducted this required totality of the circumstances
analysis.



“a portrait, like a passport photo[, l]ike, an ID photograph style,
just the upper part of his face.”
   7  Both the military judge and this Court’s majority rely on the
victim’s in-court description of Appellant as evidence of the accu-
racy of her prior out-of-court description. However, it is unclear
how a witness’s description of an accused after the unduly sugges-
tive identification process is compelling evidence of the strength of
her prior description. Similarly, it is unclear how a victim’s con-
temporaneous description of an accused as she looks at him sitting
in the courtroom is particularly helpful on this point.




                                 6
           United States v. Criswell, No. 18-0091/AR
                 Judge OHLSON, dissenting

   In support of the military judge’s ruling in this case, the
majority points to the military judge’s invocation of the
phrase “all the surrounding circumstances” when he dis-
cussed the victim’s description of her assailant. United
States v. Criswell, __ M.J. __, __ (17) (C.A.A.F. 2018) (inter-
nal quotation marks omitted). It appears that the majority
concludes that the military judge’s reference to “all the sur-
rounding circumstances” is sufficiently indicative of the fact
that he conducted a “totality of the circumstances” analysis.
However, the context in which the military judge used this
phrase is important. Specifically, after the military judge
gave his ruling and denied the defense motion to suppress
the in-court identification of the Appellant, the defense
counsel asked if the military judge made any findings of fact
about the clothing worn by the assailant on the night of the
party. During his response, the military judge stated:
          The Court considered the environmental factors
      and the description given by the alleged victim, in
      this case, and given all the surrounding circum-
      stances the alleged victim’s description is not so far
      removed from one—what one might expect, again,
      given the evidence known to the Court, at this
      time, that that in and of itself the discrepancies
      raised by the defense on cross-examination in and
      of themselves so concern the Court as to disallow
      the in court identification.
(Emphasis added.)
    As can be seen, the military judge’s intent when he used
the phrase “all the surrounding circumstances” is—at best—
ambiguous. This is particularly true in light of the fact that
the phrase “the totality of the circumstances” is so commonly
used in the law, and yet the military judge did not employ it.
Furthermore, the military judge did not place on the record
any reasoning that would indicate that he had actually en-
gaged in a totality of the circumstances analysis. For exam-
ple, the military judge failed to acknowledge that the vic-
tim’s description of the perpetrator was not unique to him
because there were so many other individuals in the vicinity
who matched the victim’s generalized description of the per-
petrator—a black male in his early twenties around six feet
tall. Cf. Rhodes, 42 M.J. at 291 (concluding that in-court
identification was reliable in part because at the time of the
out-of-court identification, “it [was] highly unlikely that
someone would be walking down the road in a suit and dress




                                7
            United States v. Criswell, No. 18-0091/AR
                  Judge OHLSON, dissenting

shoes”). Additionally, the military judge failed to
acknowledge the cross-racial nature of the identification.
This factor is important in evaluating the reliability of an
identification.8 Perry, 565 U.S. at 243–44 (noting that “the
race of the suspect and the witness” is relevant factor for
considering the likelihood of misidentification); United
States v. Jernigan, 492 F.3d 1050, 1054 (9th Cir. 2007) (en
banc) (“Cross-racial identifications … are particularly sus-
pect.”); United States v. Stevens, 935 F.2d 1380, 1392 (3d
Cir. 1991) (explaining that a cross-racial identification was a
“countervailing consideration[] … that detract[ed] from the
reliability of” the victims’ identifications); cf. United States v.
McLaurin, 22 M.J. 310, 312 & n.2 (C.M.A. 1986) (“[I]n the
experience of many it is more difficult to identify members of
a different race....”).
   In light of the muddled record of what the military judge
meant when he referenced “all the surrounding circum-
stances,” and in light of the military judge’s failure to con-
sider highly relevant factors in evaluating the strength of
the out-of-court identification, I conclude that there is an in-
sufficient basis to conclude the military judge conducted the
required totality of the circumstances analysis in this case.
        2. Corrupting Effect of the CID Identification
    In addition to the military judge’s deficient totality anal-
ysis, the military judge also failed to consider whether the
indicia of reliability identified in the course of his Biggers
analysis were “strong enough to outweigh the corrupting ef-
fect of the police-arranged suggestive circumstances.” Perry,
565 U.S. at 232; Brathwaite, 432 U.S. at 114 (“Against these
[Biggers] factors is to be weighed the corrupting effect of the
suggestive identification itself.” (emphasis added)); Baker,
70 M.J. at 291; Rhodes, 42 M.J. at 291 (concluding “that the
reliability of the in-court identification outweighs the sug-
gestiveness of the” out-of-court identification procedure after
evaluating the Biggers factors). Nowhere in the military
judge’s summary of the relevant law or his application of the

   8  This statement should not be read to imply that cross-racial
identifications are per se unreliable. Instead, it merely notes that
when law enforcement uses an improperly suggestive out-of-court
identification procedure, the cross-racial nature of the
identification is of particular concern and must be appropriately
factored into the underlying analysis of the strength of the
victim’s identification.




                                 8
             United States v. Criswell, No. 18-0091/AR
                   Judge OHLSON, dissenting

law does he reference or apply this additional analytical
step.9 Therefore, there is “clear evidence” in the record that
overcomes the presumption that the military judge knew
and properly applied the law. United States v. Rapert,
75 M.J. 164, 170 (C.A.A.F. 2016) (citation omitted) (internal
quotation marks omitted).
   In light of these significant errors, the military judge’s
decision is not entitled to deference. See Baker, 70 M.J. at
289 (“Because the military judge provided a detailed ruling
evidencing an accurate understanding of the Biggers factors
and their application to the facts on the record, we give def-
erence to his ruling in our analysis.”). I therefore turn to
whether the admission of the in-court identification violated
Appellant’s due process rights.
    In my view, the record before us does not provide a suffi-
cient basis to conclude that the in-court identification was
reliable. The following five points demonstrate that the
Biggers reliability factors considered by the military judge
were outweighed by the corrupting effect of the suggestive
out-of-court identification. First, as the military judge cor-
rectly found, the out-of-court identification procedure that
was inexplicably employed by the CID agent—whereby he
showed the victim just a single photograph—was “unneces-
sarily suggestive.” Indeed, it was highly suggestive. As the
Supreme Court has observed, the danger of “an incorrect
identification” is “increased if the police display to the wit-
ness only the picture of a single individual who generally
resembles the person [she] saw.” Simmons, 390 U.S. at 383.
Second, as the military judge correctly determined, the Gov-
ernment did not prove that the out-of-court identification
was reliable. Third, as noted by the Supreme Court, when
such a highly suggestive out-of-court identification process is


    9 The mere fact that the military judge stated on the record

that he considered “all the surrounding circumstances” does not
demonstrate that he conducted the required weighing. For in-
stance, in evaluating the victim’s level of certainty in making the
out-of-court identification, the military judge did not consider the
corrupting effect of being shown only one photograph on the wit-
ness’s level of certainty. Simply stated, if a witness expresses a
great deal of certainty about an out-of-court identification, but the
out-of-court procedure was highly suggestive, it is unclear how
this certainty weighs in favor of reliability. And yet, that is exactly
the approach taken by the military judge in this case.




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            United States v. Criswell, No. 18-0091/AR
                  Judge OHLSON, dissenting

used, “the witness thereafter is apt to retain in [her]
memory the image of the photograph rather than of the per-
son actually seen, reducing the trustworthiness of subse-
quent … courtroom identification.” Id. at 383–84. Fourth,
courts have recognized “[t]he ‘dangers inhering in eyewit-
ness identification,’ particularly of a stranger encountered
under stressful conditions.” McLaurin, 22 M.J. at 312 (quot-
ing Wade, 388 U.S. at 229); Haliym v. Mitchell, 492 F.3d
680, 706 (6th Cir. 2007). Fifth, this case involved a cross-
racial identification, which “detract[s] from the reliability of”
a victim’s identification. Stevens, 935 F.2d at 1392; see also
Jernigan, 492 F.3d at 1054. Therefore, because the record
lacks clear and convincing evidence that the in-court identi-
fication was not the result of CID’s highly suggestive out-of-
court identification procedure, I conclude that the military
judge abused his discretion in admitting the victim’s in-court
identification.
                         C. Prejudice
    An error of this constitutional dimension requires rever-
sal unless the Government can establish that it was harm-
less beyond a reasonable doubt. See United States v. Hills,
75 M.J. 350, 358 (C.A.A.F. 2016). An error is harmless be-
yond a reasonable doubt only when it does “not contribute to
the verdict obtained”; that is, the “error [is] unimportant in
relation to everything else the [factfinder] considered on the
issue in question, as revealed in the record.” United States v.
Chisum, 77 M.J. 176, 179 (C.A.A.F. 2018) (citation omitted)
(internal quotation marks omitted). Stated differently, an
error is prejudicial “when ‘there is a reasonable possibility
that the [error] complained of might have contributed to the
conviction.’ ” Hills, 75 M.J. at 357 (quoting United States v.
Moran, 65 M.J. 178, 187 (C.A.A.F. 2007)). Applying this
harmlessness beyond a reasonable doubt standard, I find
prejudice in Appellant’s case.
    I first note that the Government has not attempted to es-
tablish harmlessness before this Court. And indeed, several
factors discussed below indicate that the improperly admit-
ted in-court identification did contribute to Appellant’s con-
victions. To begin with, as reflected in the quote from Justice
Brennan cited at the outset of this opinion, an in-court iden-
tification of a perpetrator by a victim tends to weigh very
heavily against the accused. Watkins, 449 U.S. at 352
(Brennan, J., with whom Marshall J., joined, dissenting).
Next, trial counsel emphasized the victim’s in-court identifi-




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           United States v. Criswell, No. 18-0091/AR
                 Judge OHLSON, dissenting

cation in the findings argument by asserting that the victim
“looked Appellant in the eye, looked him in the face” in court
“and said that’s the man who sexually assaulted” her. Fur-
ther, the military judge, who was the factfinder in this case,
determined that the in-court identification was reliable. Cf.
United States v. Hukill, 76 M.J. 219, 223 (C.A.A.F. 2017)
(citing the military judge’s evidentiary ruling that probative
weight of evidence was high in assessing prejudice for erro-
neous admission of the same evidence). And finally, I note
that “mistaken eyewitness identifications are responsible for
more wrongful convictions than all other causes combined.”
United States v. Brownlee, 454 F.3d 131, 142 (3d Cir. 2006)
(citation omitted) (internal quotation marks omitted); see
also Wade, 388 U.S. at 228 (“[T]he annals of criminal law are
rife with instances of mistaken identification.”). In light of
these concerns, I conclude that there is a “reasonable possi-
bility” that the error in admitting the in-court identification
contributed to Appellant’s convictions. Accordingly, I believe
this Court should set aside the findings and sentence and
authorize a rehearing.
                       III. Conclusion
   Because I find an abuse of discretion by the military
judge and prejudicial error in the admission of the in-court
identification, I respectfully dissent.




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