The test in North Carolina for identification procedures prior to the enactment of the EIRA was stated in State v. Rogers, 355 N.C. 420, 432 (2002) as follows: Whether an identification procedure is unduly suggestive depends on the totality of the circumstances. State v. Pigott, 320 N.C. 96, 99 (1987). A due process analysis requires a two-part inquiry. First, the Court must determine whether the identification procedures were impermissibly suggestive. State v. Fowler, 353 N.C. 599, 617 (2001). If so, “the Court must then determine whether the [suggestive] procedures created a substantial likelihood of irreparable misidentification.” State v. Fowler, 353 N.C. 599, 617 (2001). In determining whether identification procedures are impermissibly suggestive, courts have considered such factors as 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 shown by the witness, and the time between the offense and the identification. Manson v. Brathwaite, 432 U.S. 98, 114 (1977).
North Carolina Office of Indigent Defense Services