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During trial, a Norma Sharpe was unable to identify D in the courtroom and mistakenly picked out a Deputy U.S. Marshal instead. When she was then shown a photographic display, she testified that she had previously identified one of the bank robbers from the group of pictures. She then picked out the photo she had earlier chosen. It was D's picture, and it was admitted into evidence. An FBI agent then testified as to the way he prepared the photographic spread. The agent also confirmed that Norma had selected D's picture shortly after the bank robbery. D objected and was convicted and appealed.

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