A district court's denial of a motion to suppress testimony of a witness's identification of the defendant in a photographic lineup is reviewed to determine whether the court's findings of fact are clearly erroneous and whether those findings are correctly applied as a matter of law. State v. DuBray, 2003 MT 255, ¶¶ 56-57, 317 Mont. 377, 77 P.3d 247.
For a potentially tainted out-of-court photo lineup identification, unless the error is obvious and the prejudice clear, the defendant's remedy is an effective cross examination with the identification question then becoming one of weight to be determined by the jury and not one of admissibility. This standard is equally applicable to an in-court identification with no claim of taint or suggestiveness in the underlying out-of-court photo identification. State v. Stokes, 195 Mont. 321, 326, 637 P.2d 498, 500-01 (1981).
We treat a motion to exclude an eyewitness identification as a motion to suppress. Our standard of review for a district court's denial of a motion to suppress is whether the court's findings of fact are clearly erroneous, and whether those findings are correctly applied as a matter of law. State v. Baldwin, 2003 MT 346, ¶ 11, 318 Mont. 489, 81 P.3d 488.
A defendant's constitutional right to due process bars the admission of evidence deriving from suggestive identification procedures where there is a substantial likelihood of irreparable misidentification. State v. Lally, 2008 MT 452, ¶ 14, 348 Mont. 59, 199 P.3d 818.