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6.2: Chapter 39 - Identifications and Due Process

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    IDENTIFICATIONS

    Chapter 39

    Identifications and Due Process

    Our last chapter covered when suspects have a right to counsel during an identification procedure, which the Court held is sometimes—but not always—a “critical stage” of a prosecution. Here, we begin our review of how the Court has regulated identifications using the Due Process Clauses, holding that some identification evidence is so unreliable that offering it against a defendant violates the minimum standards of a fair criminal trial.

    In our first case, Simmons v. United States, the Court considered a due process challenge to the introduction of evidence associated with the allegedly-improper (unduly suggestive) presentation of photographs to witnesses of a bank robbery.

    Before turning to Simmons, it is useful to have a bit of background from a prior decision. In Stovall v. Denno, 388 U.S. 293 (1967), the Court held that a sufficiently bad identification procedure might violate a defendant’s right to due process. In other words, the procedure could be “so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.” In that case, a suspect was taken by police (with no other suspects) and presented to a witness, who identified him as the man who killed the witness’s husband and stabbed the witness wife eleven times. While the Court held that a due process challenge could work in theory, it held as well that “a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it” and that “the record in the present case reveals that the showing of Stovall to Mrs. Behrendt in an immediate hospital confrontation was imperative.” Because police feared the witness could die at any moment, it was reasonable for police to conduct a “show up” procedure that would normally be disfavored because of its highly suggestive nature. Time was of the essence, and police had no other way to learn whether the witness would identify the suspect as the killer.

    It is possible that today the analysis of a similar “show up” would be different. Today, police could easily use a tablet to display photographs of a suspect (along with a few other people) to a witness. The array could be arranged on short notice. But in the 1960s, such technology did not exist. In any event, the Court’s decision in Stovall set the stage for subsequent cases in which defendants argued that the particular identification procedures to which they were subjected violated their due process rights.

    Supreme Court of the United States

    Thomas Earl Simmons v. United States

    Decided March 18, 1968 – 390 U.S. 377

    Mr. Justice HARLAN delivered the opinion of the Court.

    This case presents issues arising out of the petitioners’ trial and conviction in the United States District Court for the Northern District of Illinois for the armed robbery of a federally insured savings and loan association.

    The evidence at trial showed that at about 1:45 p.m. on February 27, 1964, two men entered a Chicago savings and loan association. One of them pointed a gun at a teller and ordered her to put money into a sack which the gunman supplied. The men remained in the bank about five minutes. After they left, a bank employee rushed to the street and saw one of the men sitting on the passenger side of a departing white 1960 Thunderbird automobile with a large scrape on the right door. Within an hour police located in the vicinity a car matching this description. They discovered that it belonged to a Mrs. Rey, sister-in-law of petitioner Simmons. She told the police that she had loaned the car for the afternoon to her brother, William Andrews.

    At about 5:15 p.m. the same day, two FBI agents came to the house of Mrs. Mahon, Andrews’ mother, about half a block from the place where the car was then parked. The agents had no warrant, and at trial it was disputed whether Mrs. Mahon gave them permission to search the house. They did search, and in the basement they found two suitcases, of which Mrs. Mahon disclaimed any knowledge. One suitcase contained, among other items, a gun holster, a sack similar to the one used in the robbery, and several coin cards and bill wrappers from the bank which had been robbed.

    The following morning the FBI obtained from another of Andrews’ sisters some snapshots of Andrews and of petitioner Simmons, who was said by the sister to have been with Andrews the previous afternoon. These snapshots were shown to the five bank employees who had witnessed the robbery. Each witness identified pictures of Simmons as representing one of the robbers. A week or two later, three of these employees identified photographs of petitioner Garrett as depicting the other robber, the other two witnesses stating that they did not have a clear view of the second robber.

    The petitioners, together with William Andrews, subsequently were indicted and tried for the robbery, as indicated. Just prior to the trial, Garrett moved to suppress the Government’s exhibit consisting of the suitcase containing the incriminating items. In order to establish his standing so to move, Garrett testified that, although he could not identify the suitcase with certainty, it was similar to one he had owned, and that he was the owner of clothing found inside the suitcase. The District Court denied the motion to suppress. Garrett’s testimony at the “suppression” hearing was admitted against him at trial.

    During the trial, all five bank employee witnesses identified Simmons as one of the robbers. Three of them identified Garrett as the second robber, the other two testifying that they did not get a good look at the second robber. The District Court denied the petitioners’ request [] for production of the photographs which had been shown to the witnesses before trial.

    The jury found Simmons and Garrett, as well as Andrews, guilty as charged. On appeal, the Court of Appeals for the Seventh Circuit affirmed as to Simmons and Garrett, but reversed the conviction of Andrews on the ground that there was insufficient evidence to connect him with the robbery.

    We granted certiorari as to Simmons to consider the following claim[:] Simmons asserts that his pretrial identification by means of photographs was in the circumstances so unnecessarily suggestive and conducive to misidentification as to deny him due process of law, or at least to require reversal of his conviction in the exercise of our supervisory power over the lower federal courts. For reasons which follow, we affirm the judgment of the Court of Appeals.

    I

    The facts as to the identification claim are these. As has been noted previously, FBI agents on the day following the robbery obtained from Andrews’ sister a number of snapshots of Andrews and Simmons. There seem to have been at least six of these pictures, consisting mostly of group photographs of Andrews, Simmons, and others. Later the same day, these were shown to the five bank employees who had witnessed the robbery at their place of work, the photographs being exhibited to each employee separately. Each of the five employees identified Simmons from the photographs. At later dates, some of these witnesses were again interviewed by the FBI and shown indeterminate numbers of pictures. Again, all identified Simmons. At trial, the Government did not introduce any of the photographs, but relied upon in-court identification by the five eyewitnesses, each of whom swore that Simmons was one of the robbers.

    In support of his argument, Simmons looks to last Term’s “lineup” decisions—United States v. Wade and Gilbert v. State of California. Simmons [] does not contend that he was entitled to counsel at the time the pictures were shown to the witnesses. Rather, he asserts simply that in the circumstances the identification procedure was so unduly prejudicial as fatally to taint his conviction. This is a claim which must be evaluated in light of the totality of surrounding circumstances. Viewed in that context, we find the claim untenable.

    It must be recognized that improper employment of photographs by police may sometimes cause witnesses to err in identifying criminals. A witness may have obtained only a brief glimpse of a criminal, or may have seen him under poor conditions. Even if the police subsequently follow the most correct photographic identification procedures and show him the pictures of a number of individuals without indicating whom they suspect, there is some danger that the witness may make an incorrect identification. This danger will be increased if the police display to the witness only the picture of a single individual who generally resembles the person he saw, or if they show him the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized. The chance of misidentification is also heightened if the police indicate to the witness that they have other evidence that one of the persons pictured committed the crime. Regardless of how the initial misidentification comes about, the witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen, reducing the trustworthiness of subsequent lineup or courtroom identification.

    Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs. The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method’s potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a 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 misidentification.

    Applying the standard to this case, we conclude that petitioner Simmons’ claim on this score must fail. In the first place, it is not suggested that it was unnecessary for the FBI to resort to photographic identification in this instance. A serious felony had been committed. The perpetrators were still at large. The inconclusive clues which law enforcement officials possessed led to Andrews and Simmons. It was essential for the FBI agents swiftly to determine whether they were on the right track, so that they could properly deploy their forces in Chicago and, if necessary, alert officials in other cities.

    In the second place, there was in the circumstances of this case little chance that the procedure utilized led to misidentification of Simmons. The robbery took place in the afternoon in a well-lighted bank. The robbers wore no masks. Five bank employees had been able to see the robber later identified as Simmons for periods ranging up to five minutes. Those witnesses were shown the photographs only a day later, while their memories were still fresh. At least six photographs were displayed to each witness. Apparently, these consisted primarily of group photographs, with Simmons and Andrews each appearing several times in the series. Each witness was alone when he or she saw the photographs. There is no evidence to indicate that the witnesses were told anything about the progress of the investigation, or that the FBI agents in any other way suggested which persons in the pictures were under suspicion.

    Under these conditions, all five eyewitnesses identified Simmons as one of the robbers. None identified Andrews, who apparently was as prominent in the photographs as Simmons. These initial identifications were confirmed by all five witnesses in subsequent viewings of photographs and at trial, where each witness identified Simmons in person. Notwithstanding cross-examination, none of the witnesses displayed any doubt about their respective identifications of Simmons. Taken together, these circumstances leave little room for doubt that the identification of Simmons was correct, even though the identification procedure employed may have in some respects fallen short of the ideal. We hold that in the factual surroundings of this case the identification procedure used was not such as to deny Simmons due process of law or to call for reversal under our supervisory authority.

    For the foregoing reasons, we affirm the judgment of the Court of Appeals so far as it relates to petitioner Simmons.

    Mr. Justice BLACK, concurring in part.

    I concur in affirmance of the conviction of Simmons.

    Simmons’ chief claim is that his “pretrial identification [was] so unnecessarily suggestive and conducive to irreparable mistaken identification, that he was denied due process of law.” The Court rejects this contention. I agree with the Court but for quite different reasons. The Court’s opinion rests on a lengthy discussion of inferences that the jury could have drawn from the evidence of identifying witnesses. A mere summary reading of the evidence as outlined by this Court shows that its discussion is concerned with the weight of the testimony given by the identifying witnesses. The weight of the evidence, however, is not a question for the Court but for the jury, and does not raise a due process issue. The due process question raised by Simmons is, and should be held to be, frivolous. The identifying witnesses were all present in the bank when it was robbed and all saw the robbers. The due process contention revolves around the circumstances under which these witnesses identified pictures of the robbers shown to them, and these circumstances are relevant only to the weight the identification was entitled to be given. The Court, however, considers Simmons’ contention on the premise that a denial of due process could be found in the “totality of circumstances” of the picture identification. I do not believe the Due Process Clause or any other constitutional provision vests this Court with any such wideranging, uncontrollable power. A trial according to due process of law is a trial according to the “law of the land”—the law as enacted by the Constitution or the Legislative Branch of Government, and not “laws” formulated by the courts according to the “totality of the circumstances.” Simmons’ due process claim here should be denied because it is frivolous. For these reasons I vote to affirm Simmons’ conviction.

    * * *

    In the next case, Foster v. California, the Court finds an identification procedure so unreasonable that it violated the defendant’s right to due process of law. Foster represents the height of the Court’s willingness to regulate identification procedures, and defendants have not had much success replicating its result.

    Supreme Court of the United States

    Walter B. Foster v. California

    Decided April 1, 1969 – 394 U.S. 440

    Mr. Justice FORTAS delivered the opinion of the Court.

    Petitioner was charged by information with the armed robbery of a Western Union office. The day after the robbery one of the robbers, Clay, surrendered to the police and implicated Foster and Grice. Allegedly, Foster and Clay had entered the office while Grice waited in a car. Foster and Grice were tried together. Grice was acquitted. Foster was convicted. The California District Court of Appeal affirmed the conviction; the State Supreme Court denied review. We granted certiorari, limited to the question whether the conduct of the police lineup resulted in a violation of petitioner’s constitutional rights.

    Except for the robbers themselves, the only witness to the crime was Joseph David, the late-night manager of the Western Union office. After Foster had been arrested, David was called to the police station to view a lineup. There were three men in the lineup. One was petitioner. He is a tall man—close to six feet in height. The other two men were short—five feet, five or six inches. Petitioner wore a leather jacket which David said was similar to the one he had seen underneath the coveralls worn by the robber. After seeing this lineup, David could not positively identify petitioner as the robber. He ‘thought’ he was the man, but he was not sure. David then asked to speak to petitioner, and petitioner was brought into an office and sat across from David at a table. Except for prosecuting officials there was no one else in the room. Even after this one-to-one confrontation David still was uncertain whether petitioner was one of the robbers: “truthfully—I was not sure,” he testified at trial. A week or 10 days later, the police arranged for David to view a second lineup. There were five men in that lineup. Petitioner was the only person in the second lineup who had appeared in the first lineup. This time David was “convinced” petitioner was the man.

    At trial, David testified to his identification of petitioner in the lineups, as summarized above. He also repeated his identification of petitioner in the courtroom. The only other evidence against petitioner which concerned the particular robbery with which he was charged was the testimony of the alleged accomplice Clay.

    [Because the identifications in this case occurred prior to the Court’s decisions in Wade and Gilbert (Chapter 38), the right to counsel holdings set forth in those cases did not apply to Foster’s case. Instead, the lineup in this case was “judged by the ‘totality of the circumstances,’ [to determine if] the conduct of identification procedures [are] ‘so unnecessarily suggestive and conducive to irreparable mistaken identification’ as to be a denial of due process of law.”]

    Judged by that standard, this case presents a compelling example of unfair lineup procedures. In the first lineup arranged by the police, petitioner stood out from the other two men by the contrast of his height and by the fact that he was wearing a leather jacket similar to that worn by the robber. When this did not lead to positive identification, the police permitted a one-to-one confrontation between petitioner and the witness. “The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.” Even after this the witness’ identification of petitioner was tentative. So some days later another lineup was arranged. Petitioner was the only person in this lineup who had also participated in the first lineup. This finally produced a definite identification.

    The suggestive elements in this identification procedure made it all but inevitable that David would identify petitioner whether or not he was in fact “the man.” In effect, the police repeatedly said to the witness, “This is the man.” This procedure so undermined the reliability of the eyewitness identification as to violate due process.

    Accordingly, the judgment is reversed and the case remanded for further proceedings not inconsistent with this opinion. Reversed and remanded.

    Mr. Justice BLACK, dissenting.

    [T]he Court looks to the “totality of circumstances” to show “unfair lineup procedures.” This means “unfair” according to the Court’s view of what is unfair. The Constitution, however, does not anywhere prohibit conduct deemed unfair by the courts. “Rules of evidence are designed in the interests of fair trials. But unfairness in result is no sure measure of unconstitutionality.”

    The Constitution sets up its own standards of unfairness in criminal trials in the Fourth, Fifth, and Sixth Amendments, among other provisions of the Constitution. Many of these provisions relate to evidence and its use in criminal cases. The Constitution provides that the accused shall have the right to compulsory process for obtaining witnesses in his favor. It ordains that evidence shall not be obtained by compulsion of the accused. It ordains that the accused shall have the right to confront the witnesses against him. In these ways the Constitution itself dictates what evidence is to be excluded because it was improperly obtained or because it is not sufficiently reliable. But the Constitution does not give this Court any general authority to require exclusion of all evidence that this Court considers improperly obtained or that this Court considers insufficiently reliable. Hearsay evidence, for example, is in most instances rendered inadmissible by the Confrontation Clause, which reflects a judgment, made by the Framers of the Bill of Rights, that such evidence may be unreliable and cannot be put in proper perspective by cross-examination of the person repeating it in court. Nothing in this constitutional plan suggests that the Framers drew up the Bill of Rights merely in order to mention a few types of evidence “for illustration,” while leaving this Court with full power to hold unconstitutional the use of any other evidence that the Justices of this Court might decide was not sufficiently reliable or was not sufficiently subject to exposure by cross-examination. On the contrary, as we have repeatedly held, the Constitution leaves to the States and to the people all these questions concerning the various advantages and disadvantages of admitting certain types of evidence.

    It has become fashionable to talk of the Court’s power to hold governmental laws and practices unconstitutional whenever this Court believes them to be “unfair,” contrary to basic standards of decency, implicit in ordered liberty, or offensive to “those canons of decency and fairness which express the notions of justice of English-speaking peoples ….” All of these different general and indefinable words or phrases are the fruit of the same, what I consider to be poisonous, tree, namely, the doctrine that this Court has power to make its own ideas of fairness, decency, and so forth, enforceable as though they were constitutional precepts. When I consider the incontrovertible fact that our Constitution was written to limit and define the powers of the Federal Government as distinguished from the powers of States, and to divide those powers granted the United States among the separate Executive, Legislative, and Judicial branches, I cannot accept the premise that our Constitution grants any powers except those specifically written into it, or absolutely necessary and proper to carry out the powers expressly granted.

    I realize that some argue that there is little difference between the two constitutional views expressed below:

    One. No law should be held unconstitutional unless its invalidation can be firmly planted on a specific constitutional provision plus the Necessary and Proper Clause.

    Two. All laws are unconstitutional that are unfair, shock the conscience of the Court, offend its sense of decency, or violate concepts implicit in ordered liberty.

    The first of these two constitutional standards plainly tells judges they have no power to hold laws unconstitutional unless such laws are believed to violate the written Constitution. The second constitutional standard, based on the words “due process,” not only does not require judges to follow the Constitution as written, but actually encourages judges to hold laws unconstitutional on the basis of their own conceptions of fairness and justice. This formula imposes no “restraint” on judges beyond requiring them to follow their own best judgment as to what is wise, just, and best under the circumstances of a particular case. This case well illustrates the extremes to which the formula can take men who are both wise and good. Although due process requires that courts summon witnesses so that juries can determine the guilt or innocence of defendants, the Court, because of its sense of fairness, decides that due process deprives juries of a chance to hear witnesses who the Court holds could not or might not tell the truth.

    For the above reasons I dissent from the reversal and remand of this case.

    * * *

    It is well known that a lineup containing only one suspect, sometimes called a “showup,” is highly suggestive and can cause false identifications. In the next case, the Court considered whether such procedures are so unreliable as to offend the Due Process Clause.

    Supreme Court of the United States

    William S. Neil v. Archie Nathaniel Biggers

    Decided Dec. 6, 1972 – 409 U.S. 188

    Mr. Justice POWELL delivered the opinion of the Court.

    In 1965, after a jury trial in a Tennessee court, respondent was convicted of rape and was sentenced to 20 years’ imprisonment. The State’s evidence consisted in part of testimony concerning a station-house identification of respondent by the victim. The Tennessee Supreme Court affirmed. On certiorari, the judgment of the Tennessee Supreme Court was affirmed by an equally divided Court. Respondent then brought a federal habeas corpus action raising several claims. The District Court [] held in an unreported opinion that the station-house identification procedure was so suggestive as to violate due process. The Court of Appeals affirmed. We granted certiorari to decide whether the identification procedure violated due process.

    II

    As the [due process] claim turns upon the facts, we must first review the relevant testimony at the jury trial and at the habeas corpus hearing regarding the rape and the identification. The victim testified at trial that on the evening of January 22, 1965, a youth with a butcher knife grabbed her in the doorway to her kitchen:

    “A. [H]e grabbed me from behind, and grappled—twisted me on the floor. Threw me down on the floor.

    “Q. And there was no light in that kitchen?

    “A. Not in the kitchen.

    “Q. So you couldn’t have seen him then?

    “A. Yes, I could see him, when I looked up in his face.

    “Q. In the dark?

    “A. He was right in the doorway—it was enough light from the bedroom shining through. Yes, I could see who he was.

    “Q. You could see? No light? And you could see him and know him then?

    “A. Yes.”

    When the victim screamed, her 12-year-old daughter came out of her bedroom and also began to scream. The assailant directed the victim to “tell her [the daughter] to shut up, or I’ll kill you both.” She did so, and was then walked at knifepoint about two blocks along a railroad track, taken into a woods, and raped there. She testified that “the moon was shining brightly, full moon.” After the rape, the assailant ran off, and she returned home, the whole incident having taken between 15 minutes and half an hour.

    She then gave the police what the Federal District Court characterized as “only a very general description,” describing him as “being fat and flabby with smooth skin, bushy hair and a youthful voice.” Additionally, though not mentioned by the District Court, she testified at the habeas corpus hearing that she had described her assailant as being between 16 and 18 years old and between five feet ten inches and six feet, tall, as weighing between 180 and 200 pounds, and as having a dark brown complexion. This testimony was substantially corroborated by that of a police officer who was testifying from his notes.

    On several occasions over the course of the next seven months, she viewed suspects in her home or at the police station, some in lineups and others in showups, and was shown between 30 and 40 photographs. She told the police that a man pictured in one of the photographs had features similar to those of her assailant, but identified none of the suspects. On August 17, the police called her to the station to view respondent, who was being detained on another charge. In an effort to construct a suitable lineup, the police checked the city jail and the city juvenile home. Finding no one at either place fitting respondent’s unusual physical description, they conducted a showup instead.

    The showup itself consisted of two detectives walking respondent past the victim. At the victim’s request, the police directed respondent to say “shut up or I’ll kill you.” The testimony at trial was not altogether clear as to whether the victim first identified him and then asked that he repeat the words or made her identification after he had spoken. In any event, the victim testified that she had “no doubt” about her identification. At the habeas corpus hearing, she elaborated in response to questioning.

    “A. That I have no doubt, I mean that I am sure that when I—see, when I first laid eyes on him, I knew that it was the individual, because his face—well, there was just something that I don’t think I could ever forget. I believe—

    “Q. You say when you first laid eyes on him, which time are you referring to?

    “A. When I identified him—when I seen him in the courthouse when I was took up to view the suspect.”

    We must decide whether, as the courts below held, this identification and the circumstances surrounding it failed to comport with due process requirements.

    III

    Some general guidelines emerge from the [due process identification] cases as to the relationship between suggestiveness and misidentification. It is, first of all, apparent that the primary evil to be avoided is “a very substantial likelihood of irreparable misidentification.” While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of “irreparable” it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of misidentification which violates a defendant’s right to due process, and it is this which was the basis of the exclusion of evidence in Foster. Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous. But [] the admission of evidence of a showup without more does not violate due process.

    What is less clear from our cases is whether [] unnecessary suggestiveness alone requires the exclusion of evidence. While we are inclined to agree with the courts below that the police did not exhaust all possibilities in seeking persons physically comparable to respondent, we do not think that the evidence must therefore be excluded. The purpose of a strict rule barring evidence of unnecessarily suggestive confrontations would be to deter the police from using a less reliable procedure where a more reliable one may be available, and would not be based on the assumption that in every instance the admission of evidence of such a confrontation offends due process.

    We turn, then, to the central question, whether under the “totality of the circumstances” the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include 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 by the witness at the confrontation, and the length of time between the crime and the confrontation. Applying these factors, we disagree with the District Court’s conclusion.

    In part, as discussed above, we think the District Court focused unduly on the relative reliability of a lineup as opposed to a showup, the issue on which expert testimony was taken at the evidentiary hearing. The testimony was addressed to the jury, and the jury apparently found the identification reliable. Some of the State’s testimony at the federal evidentiary hearing may well have been self-serving in that it too neatly fit the case law, but it surely does nothing to undermine the state record, which itself fully corroborated the identification.

    We find that the District Court’s conclusions on the critical facts are unsupported by the record and clearly erroneous. The victim spent a considerable period of time with her assailant, up to half an hour. She was with him under adequate artificial light in her house and under a full moon outdoors, and at least twice, once in the house and later in the woods, faced him directly and intimately. She was no casual observer, but rather the victim of one of the most personally humiliating of all crimes. Her description to the police, which included the assailant’s approximate age, height, weight, complexion, skin texture, build, and voice, might not have satisfied Proust but was more than ordinarily thorough. She had “no doubt” that respondent was the person who raped her. In the nature of the crime, there are rarely witnesses to a rape other than the victim, who often has a limited opportunity of observation. The victim here, a practical nurse by profession, had an unusual opportunity to observe and identify her assailant. She testified at the habeas corpus hearing that there was something about his face “I don’t think I could ever forget.”

    There was, to be sure, a lapse of seven months between the rape and the confrontation. This would be a seriously negative factor in most cases. Here, however, the testimony is undisputed that the victim made no previous identification at any of the showups, lineups, or photographic showings. Her record for reliability was thus a good one, as she had previously resisted whatever suggestiveness inheres in a showup. Weighing all the factors, we find no substantial likelihood of misidentification. The evidence was properly allowed to go to the jury.

    * * *

    Our next case concerns the photographic version of a one-suspect “showup”—a photo array containing only a single suspect’s photograph.

    Supreme Court of the United States

    John R. Manson v. Nowell A. Brathwaite

    Decided June 16, 1977 – 432 U.S. 98

    Mr. Justice BLACKMUN delivered the opinion of the Court.

    This case presents the issue as to whether the Due Process Clause of the Fourteenth Amendment compels the exclusion, in a state criminal trial, apart from any consideration of reliability, of pretrial identification evidence obtained by a police procedure that was both suggestive and unnecessary. This Court’s decisions in Stovall v. Denno and Neil v. Biggers are particularly implicated.1

    I

    Jimmy D. Glover, a full-time trooper of the Connecticut State Police, in 1970 was assigned to the Narcotics Division in an undercover capacity. On May 5 of that year, about 7:45 p. m., e.d.t., and while there was still daylight, Glover and Henry Alton Brown, an informant, went to an apartment building at 201 Westland, in Hartford, for the purpose of purchasing narcotics from “Dickie Boy” Cicero, a known narcotics dealer. Cicero, it was thought, lived on the third floor of that apartment building. Glover and Brown entered the building, observed by back-up Officers D’Onofrio and Gaffey, and proceeded by stairs to the third floor. Glover knocked at the door of one of the two apartments served by the stairway. The area was illuminated by natural light from a window in the third floor hallway. The door was opened 12 to 18 inches in response to the knock. Glover observed a man standing at the door and, behind him, a woman. Brown identified himself. Glover then asked for “two things” of narcotics. The man at the door held out his hand, and Glover gave him two $10 bills. The door closed. Soon the man returned and handed Glover two glassine bags. While the door was open, Glover stood within two feet of the person from whom he made the purchase and observed his face. Five to seven minutes elapsed from the time the door first opened until it closed the second time.

    Glover and Brown then left the building. This was about eight minutes after their arrival. Glover drove to headquarters where he described the seller to D’Onofrio and Gaffey. Glover at that time did not know the identity of the seller. He described him as being “a colored man, approximately five feet eleven inches tall, dark complexion, black hair, short Afro style, and having high cheekbones, and of heavy build. He was wearing at the time blue pants and a plaid shirt.” D’Onofrio, suspecting from this description that respondent might be the seller, obtained a photograph of respondent from the Records Division of the Hartford Police Department. He left it at Glover’s office. D’Onofrio was not acquainted with respondent personally but did know him by sight and had seen him “[s]everal times” prior to May 5. Glover, when alone, viewed the photograph for the first time upon his return to headquarters on May 7; he identified the person shown as the one from whom he had purchased the narcotics.

    The toxicological report on the contents of the glassine bags revealed the presence of heroin. The report was dated July 16, 1970. Respondent was arrested on July 27 while visiting at the apartment of a Mrs. Ramsey on the third floor of 201 Westland. This was the apartment at which the narcotics sale had taken place on May 5.

    Respondent was charged, in a two-count information, with possession and sale of heroin. At his trial in January 1971, the photograph from which Glover had identified respondent was received in evidence without objection on the part of the defense. Glover also testified that, although he had not seen respondent in the eight months that had elapsed since the sale, “there [was] no doubt whatsoever” in his mind that the person shown on the photograph was respondent. Glover also made a positive in-court identification without objection.

    No explanation was offered by the prosecution for the failure to utilize a photographic array or to conduct a lineup.

    Respondent, who took the stand in his own defense, testified that on May 5, the day in question, he had been ill at his Albany Avenue apartment (“a lot of back pains, muscle spasms … a bad heart … high blood pressure … neuralgia in my face, and sinus”), and that at no time on that particular day had he been at 201 Westland. His wife testified that she recalled, after her husband had refreshed her memory, that he was home all day on May 5. Doctor Wesley M. Vietzke, an internist and assistant professor of medicine at the University of Connecticut, testified that respondent had consulted him on April 15, 1970, and that he took a medical history from him, heard his complaints about his back and facial pain, and discovered that he had high blood pressure. The physician found respondent, subjectively, “in great discomfort.” Respondent in fact underwent surgery for a herniated disc at L5 and S1 on August 17.

    The jury found respondent guilty on both counts of the information. He received a sentence of not less than six nor more than nine years. His conviction was affirmed per curiam by the Supreme Court of Connecticut. Fourteen months later, respondent filed a petition for habeas corpus in the United States District Court for the District of Connecticut. He alleged that the admission of the identification testimony at his state trial deprived him of due process of law to which he was entitled under the Fourteenth Amendment. The District Court, by an unreported written opinion based on the court’s review of the state trial transcript, dismissed respondent’s petition. On appeal, the United States Court of Appeals for the Second Circuit reversed, with instructions to issue the writ unless the State gave notice of a desire to retry respondent and the new trial occurred within a reasonable time to be fixed by the District Judge.

    In brief summary, the court felt that evidence as to the photograph should have been excluded, regardless of reliability, because the examination of the single photograph was unnecessary and suggestive. And, in the court’s view, the evidence was unreliable in any event. We granted certiorari.

    II

    Stovall v. Denno decided in 1967, concerned a petitioner who had been convicted in a New York court of murder. He was arrested the day following the crime and was taken by the police to a hospital where the victim’s wife, also wounded in the assault, was a patient. After observing Stovall and hearing him speak, she identified him as the murderer. She later made an in-court identification. On the identification issue, the Court reviewed the practice of showing a suspect singly for purposes of identification, and the claim that this was so unnecessarily suggestive and conducive to irreparable mistaken identification that it constituted a denial of due process of law. The Court noted that the practice “has been widely condemned,” but it concluded that “a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it.” In that case, showing Stovall to the victim’s spouse “was imperative.” The Court then quoted the observations of the Court of Appeals, to the effect that the spouse was the only person who could possibly exonerate the accused; that the hospital was not far from the courthouse and jail; that no one knew how long she might live; that she was not able to visit the jail; and that taking Stovall to the hospital room was the only feasible procedure, and, under the circumstances, “‘the usual police station line-up … was out of the question.’”

    [The Court recounted the facts and holding of Neil v. Biggers.]

    Biggers well might be seen to provide an unambiguous answer to the question before us: The admission of testimony concerning a suggestive and unnecessary identification procedure does not violate due process so long as the identification possesses sufficient aspects of reliability. In one passage, however, the Court observed that the challenged procedure occurred pre-Stovall and that a strict rule would make little sense with regard to a confrontation that preceded the Court’s first indication that a suggestive procedure might lead to the exclusion of evidence. One perhaps might argue that, by implication, the Court suggested that a different rule could apply post-Stovall. The question before us, then, is simply whether the Biggers analysis applies to post-Stovall confrontations as well to those pre-Stovall.

    III

    In the present case the District Court observed that the “sole evidence tying Brathwaite to the possession and sale of the heroin consisted in his identifications by the police undercover agent, Jimmy Glover.” On the constitutional issue, the court stated that the first inquiry was whether the police used an impermissibly suggestive procedure in obtaining the out-of-court identification. If so, the second inquiry is whether, under all the circumstances, that suggestive procedure gave rise to a substantial likelihood of irreparable misidentification.

    IV

    Petitioner at the outset acknowledges that “the procedure in the instant case was suggestive (because only one photograph was used) and unnecessary” (because there was no emergency or exigent circumstance). The respondent proposes a per se rule of exclusion that he claims is dictated by the demands of the Fourteenth Amendment’s guarantee of due process. He rightly observes that this is the first case in which this Court has had occasion to rule upon strictly post-Stovall out-of-court identification evidence of the challenged kind.

    Since the decision in Biggers, the Courts of Appeals appear to have developed at least two approaches to such evidence. The first, or per se approach, employed by the Second Circuit in the present case, focuses on the procedures employed and requires exclusion of the out-of-court identification evidence, without regard to reliability, whenever it has been obtained through unnecessarily suggestive confrontation procedures. The justifications advanced are the elimination of evidence of uncertain reliability, deterrence of the police and prosecutors, and the stated “fair assurance against the awful risks of misidentification.”

    The second, or more lenient, approach is one that continues to rely on the totality of the circumstances. It permits the admission of the confrontation evidence if, despite the suggestive aspect, the out-of-court identification possesses certain features of reliability. Its adherents feel that the per se approach is not mandated by the Due Process Clause of the Fourteenth Amendment. This second approach, in contrast to the other, is ad hoc and serves to limit the societal costs imposed by a sanction that excludes relevant evidence from consideration and evaluation by the trier of fact.

    Mr. Justice Stevens, in writing for the Seventh Circuit observed: “There is surprising unanimity among scholars in regarding such a rule (the per se approach) as essential to avoid serious risk of miscarriage of justice.” He pointed out that well-known federal judges have taken the position that “evidence of, or derived from, a showup identification should be inadmissible unless the prosecutor can justify his failure to use a more reliable identification procedure.” Indeed, the ALI Model Code of Pre-Arraignment Procedure §§ 160.1 and 160.2 (1975), frowns upon the use of a showup or the display of only a single photograph.

    The respondent here stresses the same theme and the need for deterrence of improper identification practice, a factor he regards as pre-eminent. Photographic identification, it is said, continues to be needlessly employed. He notes that the legislative regulation “the Court had hoped [United States v.] Wade would engender,” has not been forthcoming. He argues that a totality rule cannot be expected to have a significant deterrent impact; only a strict rule of exclusion will have direct and immediate impact on law enforcement agents. Identification evidence is so convincing to the jury that sweeping exclusionary rules are required. Fairness of the trial is threatened by suggestive confrontation evidence, and thus, it is said, an exclusionary rule has an established constitutional predicate.

    There are, of course, several interests to be considered and taken into account. The driving force behind United States v. Wade, Gilbert v. California, and Stovall, all decided on the same day, was the Court’s concern with the problems of eyewitness identification. Usually the witness must testify about an encounter with a total stranger under circumstances of emergency or emotional stress. The witness’ recollection of the stranger can be distorted easily by the circumstances or by later actions of the police. Thus, Wade and its companion cases reflect the concern that the jury not hear eyewitness testimony unless that evidence has aspects of reliability. It must be observed that both approaches before us are responsive to this concern. The per se rule, however, goes too far since its application automatically and peremptorily, and without consideration of alleviating factors, keeps evidence from the jury that is reliable and relevant.

    The second factor is deterrence. Although the per se approach has the more significant deterrent effect, the totality approach also has an influence on police behavior. The police will guard against unnecessarily suggestive procedures under the totality rule, as well as the per se one, for fear that their actions will lead to the exclusion of identifications as unreliable.

    The third factor is the effect on the administration of justice. Here the per se approach suffers serious drawbacks. Since it denies the trier reliable evidence, it may result, on occasion, in the guilty going free. Also, because of its rigidity, the per se approach may make error by the trial judge more likely than the totality approach. And in those cases in which the admission of identification evidence is error under the per se approach but not under the totality approach—cases in which the identification is reliable despite an unnecessarily suggestive identification procedure—reversal is a Draconian sanction. Certainly, inflexible rules of exclusion that may frustrate rather than promote justice have not been viewed recently by this Court with unlimited enthusiasm.

    We therefore conclude that reliability is the linchpin in determining the admissibility of identification testimony for both pre- and post-Stovall confrontations. The factors to be considered are set out in Biggers. These include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.

    V

    We turn, then, to the facts of this case and apply the analysis:

    1. The opportunity to view. Glover testified that for two to three minutes he stood at the apartment door, within two feet of the respondent. The door opened twice, and each time the man stood at the door. The moments passed, the conversation took place, and payment was made. Glover looked directly at his vendor. It was near sunset, to be sure, but the sun had not yet set, so it was not dark or even dusk or twilight. Natural light from outside entered the hallway through a window. There was natural light, as well, from inside the apartment.

    2. The degree of attention. Glover was not a casual or passing observer, as is so often the case with eyewitness identification. Trooper Glover was a trained police officer on duty and specialized and dangerous duty when he called at the third floor of 201 Westland in Hartford on May 5, 1970. Glover himself was [Black] and unlikely to perceive only general features of “hundreds of Hartford black males,” as the Court of Appeals stated. It is true that Glover’s duty was that of ferreting out narcotics offenders and that he would be expected in his work to produce results. But it is also true that, as a specially trained, assigned, and experienced officer, he could be expected to pay scrupulous attention to detail, for he knew that subsequently he would have to find and arrest his vendor. In addition, he knew that his claimed observations would be subject later to close scrutiny and examination at any trial.

    3. The accuracy of the description. Glover’s description was given to D’Onofrio within minutes after the transaction. It included the vendor’s race, his height, his build, the color and style of his hair, and the high cheekbone facial feature. It also included clothing the vendor wore. No claim has been made that respondent did not possess the physical characteristics so described. D’Onofrio reacted positively at once. Two days later, when Glover was alone, he viewed the photograph D’Onofrio produced and identified its subject as the narcotics seller.

    4. The witness’ level of certainty. There is no dispute that the photograph in question was that of respondent. Glover, in response to a question whether the photograph was that of the person from whom he made the purchase, testified: “There is no question whatsoever.” This positive assurance was repeated.

    5. The time between the crime and the confrontation. Glover’s description of his vendor was given to D’Onofrio within minutes of the crime. The photographic identification took place only two days later. We do not have here the passage of weeks or months between the crime and the viewing of the photograph.

    These indicators of Glover’s ability to make an accurate identification are hardly outweighed by the corrupting effect of the challenged identification itself. Although identifications arising from single-photograph displays may be viewed in general with suspicion, we find in the instant case little pressure on the witness to acquiesce in the suggestion that such a display entails. D’Onofrio had left the photograph at Glover’s office and was not present when Glover first viewed it two days after the event. There thus was little urgency and Glover could view the photograph at his leisure. And since Glover examined the photograph alone, there was no coercive pressure to make an identification arising from the presence of another. The identification was made in circumstances allowing care and reflection.

    Although it plays no part in our analysis, all this assurance as to the reliability of the identification is hardly undermined by the facts that respondent was arrested in the very apartment where the sale had taken place, and that he acknowledged his frequent visits to that apartment.

    Surely, we cannot say that under all the circumstances of this case there is “a very substantial likelihood of irreparable misidentification.” Short of that point, such evidence is for the jury to weigh. We are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.

    Of course, it would have been better had D’Onofrio presented Glover with a photographic array including “so far as practicable … a reasonable number of persons similar to any person then suspected whose likeness is included in the array.” The use of that procedure would have enhanced the force of the identification at trial and would have avoided the risk that the evidence would be excluded as unreliable. But we are not disposed to view D’Onofrio’s failure as one of constitutional dimension to be enforced by a rigorous and unbending exclusionary rule. The defect, if there be one, goes to weight and not to substance.

    We conclude that the criteria laid down in Biggers are to be applied in determining the admissibility of evidence offered by the prosecution concerning a post-Stovall identification, and that those criteria are satisfactorily met and complied with here.

    The judgment of the Court of Appeals is reversed.

    Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.

    Today’s decision can come as no surprise to those who have been watching the Court dismantle the protections against mistaken eyewitness testimony erected a decade ago in United States v. Wade; Gilbert v. California; and Stovall v. Denno. But it is still distressing to see the Court virtually ignore the teaching of experience embodied in those decisions and blindly uphold the conviction of a defendant who may well be innocent.

    [T]he Court disregards two significant distinctions between the per se rule advocated in this case and the exclusionary remedies for certain other constitutional violations.

    First, the per se rule here is not “inflexible.” Where evidence is suppressed, for example, as the fruit of an unlawful search, it may well be forever lost to the prosecution. Identification evidence, however, can by its very nature be readily and effectively reproduced. The in-court identification, permitted under Wade and Simmons if it has a source independent of an uncounseled or suggestive procedure, is one example. Similarly, when a prosecuting attorney learns that there has been a suggestive confrontation, he can easily arrange another lineup conducted under scrupulously fair conditions. Since the same factors are evaluated in applying both the Court’s totality test and the Wade-Simmons independent-source inquiry, any identification which is “reliable” under the Court’s test will support admission of evidence concerning such a fairly conducted lineup. The evidence of an additional, properly conducted confrontation will be more persuasive to a jury, thereby increasing the chance of a justified conviction where a reliable identification was tainted by a suggestive confrontation. At the same time, however, the effect of an unnecessarily suggestive identification which has no value whatsoever in the law enforcement process will be completely eliminated.

    Second, other exclusionary rules have been criticized for preventing jury consideration of relevant and usually reliable evidence in order to serve interests unrelated to guilt or innocence, such as discouraging illegal searches or denial of counsel. Suggestively obtained eyewitness testimony is excluded, in contrast, precisely because of its unreliability and concomitant irrelevance. Its exclusion both protects the integrity of the truth-seeking function of the trial and discourages police use of needlessly inaccurate and ineffective investigatory methods.

    Indeed, impermissibly suggestive identifications are not merely worthless law enforcement tools. They pose a grave threat to society at large in a more direct way than most governmental disobedience of the law. For if the police and the public erroneously conclude, on the basis of an unnecessarily suggestive confrontation, that the right man has been caught and convicted, the real outlaw must still remain at large. Law enforcement has failed in its primary function and has left society unprotected from the depredations of an active criminal.

    For these reasons, I conclude that adoption of the per se rule would enhance, rather than detract from, the effective administration of justice. In my view, the Court’s totality test will allow seriously unreliable and misleading evidence to be put before juries. Equally important, it will allow dangerous criminals to remain on the streets while citizens assume that police action has given them protection. According to my calculus, all three of the factors upon which the Court relies point to acceptance of the per se approach.

    Accordingly, I dissent from the Court’s reinstatement of respondent’s conviction.

    * * *

    In our last case in this chapter, the Court considered how to treat identification evidence made unreliable by someone for whom the state is not responsible. In other words, the question was whether a state actor requirement applies when a defendant challenges unreliable identification evidence on due process grounds or if instead the unreliability itself—regardless of its source—compels exclusion of sufficiently unreliable identification evidence.

    Supreme Court of the United States

    Barion Perry v. New Hampshire

    Decided Jan. 11, 2012 – 565 U.S. 228

    Justice GINSBURG delivered the opinion of the Court.

    In our system of justice, fair trial for persons charged with criminal offenses is secured by the Sixth Amendment, which guarantees to defendants the right to counsel, compulsory process to obtain defense witnesses, and the opportunity to cross-examine witnesses for the prosecution. Those safeguards apart, admission of evidence in state trials is ordinarily governed by state law, and the reliability of relevant testimony typically falls within the province of the jury to determine. This Court has recognized, in addition, a due process check on the admission of eyewitness identification, applicable when the police have arranged suggestive circumstances leading the witness to identify a particular person as the perpetrator of a crime.

    An identification infected by improper police influence, our case law holds, is not automatically excluded. Instead, the trial judge must screen the evidence for reliability pretrial. If there is “a very substantial likelihood of irreparable misidentification,” the judge must disallow presentation of the evidence at trial. But if 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.

    We have not extended pretrial screening for reliability to cases in which the suggestive circumstances were not arranged by law enforcement officers. Petitioner requests that we do so because of the grave risk that mistaken identification will yield a miscarriage of justice. Our decisions, however, turn on the presence of state action and aim to deter police from rigging identification procedures, for example, at a lineup, showup, or photograph array. When no improper law enforcement activity is involved, we hold, it suffices to test reliability through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at postindictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt.

    I
    A

    Around 3 a.m. on August 15, 2008, Joffre Ullon called the Nashua, New Hampshire, Police Department and reported that an African-American male was trying to break into cars parked in the lot of Ullon’s apartment building. Officer Nicole Clay responded to the call. Upon arriving at the parking lot, Clay heard what “sounded like a metal bat hitting the ground.” She then saw petitioner Barion Perry standing between two cars. Perry walked toward Clay, holding two car-stereo amplifiers in his hands. A metal bat lay on the ground behind him. Clay asked Perry where the amplifiers came from. “[I] found them on the ground,” Perry responded.

    Meanwhile, Ullon’s wife, Nubia Blandon, woke her neighbor, Alex Clavijo, and told him she had just seen someone break into his car. Clavijo immediately went downstairs to the parking lot to inspect the car. He first observed that one of the rear windows had been shattered. On further inspection, he discovered that the speakers and amplifiers from his car stereo were missing, as were his bat and wrench. Clavijo then approached Clay and told her about Blandon’s alert and his own subsequent observations.

    By this time, another officer had arrived at the scene. Clay asked Perry to stay in the parking lot with that officer, while she and Clavijo went to talk to Blandon. Clay and Clavijo then entered the apartment building and took the stairs to the fourth floor, where Blandon’s and Clavijo’s apartments were located. They met Blandon in the hallway just outside the open door to her apartment.

    Asked to describe what she had seen, Blandon stated that, around 2:30 a.m., she saw from her kitchen window a tall, African-American man roaming the parking lot and looking into cars. Eventually, the man circled Clavijo’s car, opened the trunk, and removed a large box.

    Clay asked Blandon for a more specific description of the man. Blandon pointed to her kitchen window and said the person she saw breaking into Clavijo’s car was standing in the parking lot, next to the police officer. Perry’s arrest followed this identification.

    About a month later, the police showed Blandon a photographic array that included a picture of Perry and asked her to point out the man who had broken into Clavijo’s car. Blandon was unable to identify Perry.

    B

    Perry was charged in New Hampshire state court with one count of theft by unauthorized taking and one count of criminal mischief. Before trial, he moved to suppress Blandon’s identification on the ground that admitting it at trial would violate due process. Blandon witnessed what amounted to a one-person showup in the parking lot, Perry asserted, which all but guaranteed that she would identify him as the culprit.

    The New Hampshire Superior Court denied the motion. At the ensuing trial, Blandon and Clay testified to Blandon’s out-of-court identification. The jury found Perry guilty of theft and not guilty of criminal mischief.

    On appeal, Perry repeated his challenge to the admissibility of Blandon’s out-of-court identification. The New Hampshire Supreme Court rejected Perry’s argument and affirmed his conviction.

    We granted certiorari to resolve a division of opinion on the question whether the Due Process Clause requires a trial judge to conduct a preliminary assessment of the reliability of an eyewitness identification made under suggestive circumstances not arranged by the police.

    II

    The Constitution, our decisions indicate, protects a defendant against a conviction based on evidence of questionable reliability, not by prohibiting introduction of the evidence, but by affording the defendant means to persuade the jury that the evidence should be discounted as unworthy of credit. Constitutional safeguards available to defendants to counter the State’s evidence include the Sixth Amendment rights to counsel, compulsory process, and confrontation plus cross-examination of witnesses. Apart from these guarantees, we have recognized, state and federal statutes and rules ordinarily govern the admissibility of evidence, and juries are assigned the task of determining the reliability of the evidence presented at trial. Only when evidence “is so extremely unfair that its admission violates fundamental conceptions of justice,” have we imposed a constraint tied to the Due Process Clause.

    Perry concedes that, in contrast to every case in the Stovall line, law enforcement officials did not arrange the suggestive circumstances surrounding Blandon’s identification. He contends, however, that it was mere happenstance that each of the Stovall cases involved improper police action. The rationale underlying our decisions, Perry asserts, supports a rule requiring trial judges to prescreen eyewitness evidence for reliability any time an identification is made under suggestive circumstances. We disagree.

    Perry’s argument depends, in large part, on the Court’s statement in Brathwaite that “reliability is the linchpin in determining the admissibility of identification testimony.” If reliability is the linchpin of admissibility under the Due Process Clause, Perry maintains, it should make no difference whether law enforcement was responsible for creating the suggestive circumstances that marred the identification.

    Perry has removed our statement in Brathwaite from its mooring, and thereby attributes to the statement a meaning a fair reading of our opinion does not bear. [T]he Brathwaite Court’s reference to reliability appears in a portion of the opinion concerning the appropriate remedy when the police use an unnecessarily suggestive identification procedure. The Court adopted a judicial screen for reliability as a course preferable to a per se rule requiring exclusion of identification evidence whenever law enforcement officers employ an improper procedure. The due process check for reliability, Brathwaite made plain, comes into play only after the defendant establishes improper police conduct. The very purpose of the check, the Court noted, was to avoid depriving the jury of identification evidence that is reliable, notwithstanding improper police conduct.

    [Perry’s] position would open the door to judicial preview, under the banner of due process, of most, if not all, eyewitness identifications. External suggestion is hardly the only factor that casts doubt on the trustworthiness of an eyewitness’ testimony. As one of Perry’s amici points out, many other factors bear on “the likelihood of misidentification”—for example, the passage of time between exposure to and identification of the defendant, whether the witness was under stress when he first encountered the suspect, how much time the witness had to observe the suspect, how far the witness was from the suspect, whether the suspect carried a weapon, and the race of the suspect and the witness. There is no reason why an identification made by an eyewitness with poor vision, for example, or one who harbors a grudge against the defendant, should be regarded as inherently more reliable, less of a “threat to the fairness of trial,” than the identification Blandon made in this case. To embrace Perry’s view would thus entail a vast enlargement of the reach of due process as a constraint on the admission of evidence.

    Perry maintains that the Court can limit the due process check he proposes to identifications made under “suggestive circumstances.” Even if we could rationally distinguish suggestiveness from other factors bearing on the reliability of eyewitness evidence, Perry’s limitation would still involve trial courts, routinely, in preliminary examinations. Most eyewitness identifications involve some element of suggestion. Indeed, all in-court identifications do. Out-of-court identifications volunteered by witnesses are also likely to involve suggestive circumstances. For example, suppose a witness identifies the defendant to police officers after seeing a photograph of the defendant in the press captioned “theft suspect,” or hearing a radio report implicating the defendant in the crime. Or suppose the witness knew that the defendant ran with the wrong crowd and saw him on the day and in the vicinity of the crime. Any of these circumstances might have “suggested” to the witness that the defendant was the person the witness observed committing the crime.

    In urging a broadly applicable due process check on eyewitness identifications, Perry maintains that eyewitness identifications are a uniquely unreliable form of evidence. We do not doubt either the importance or the fallibility of eyewitness identifications. Indeed, in recognizing that defendants have a constitutional right to counsel at postindictment police lineups, we observed that “the annals of criminal law are rife with instances of mistaken identification.”

    We have concluded in other contexts, however, that the potential unreliability of a type of evidence does not alone render its introduction at the defendant’s trial fundamentally unfair. We reach a similar conclusion here: The fallibility of eyewitness evidence does not, without the taint of improper state conduct, warrant a due process rule requiring a trial court to screen such evidence for reliability before allowing the jury to assess its creditworthiness.

    Our unwillingness to enlarge the domain of due process as Perry and the dissent urge rests, in large part, on our recognition that the jury, not the judge, traditionally determines the reliability of evidence. We also take account of other safeguards built into our adversary system that caution juries against placing undue weight on eyewitness testimony of questionable reliability. These protections include the defendant’s Sixth Amendment right to confront the eyewitness. Another is the defendant’s right to the effective assistance of an attorney, who can expose the flaws in the eyewitness’ testimony during cross-examination and focus the jury’s attention on the fallibility of such testimony during opening and closing arguments. Eyewitness-specific jury instructions, which many federal and state courts have adopted, likewise warn the jury to take care in appraising identification evidence. The constitutional requirement that the government prove the defendant’s guilt beyond a reasonable doubt also impedes convictions based on dubious identification evidence.

    State and federal rules of evidence, moreover, permit trial judges to exclude relevant evidence if its probative value is substantially outweighed by its prejudicial impact or potential for misleading the jury. In appropriate cases, some States also permit defendants to present expert testimony on the hazards of eyewitness identification evidence.

    Finding no convincing reason to alter our precedent, we hold that the Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement. Accordingly, the judgment of the New Hampshire Supreme Court is [a]ffirmed.

    Justice SOTOMAYOR, dissenting.

    This Court has long recognized that eyewitness identifications’ unique confluence of features—their unreliability, susceptibility to suggestion, powerful impact on the jury, and resistance to the ordinary tests of the adversarial process—can undermine the fairness of a trial. Our cases thus establish a clear rule: The admission at trial of out-of-court eyewitness identifications derived from impermissibly suggestive circumstances that pose a very substantial likelihood of misidentification violates due process. The Court today announces that that rule does not even “com[e] into play” unless the suggestive circumstances are improperly “police-arranged.”

    Our due process concern, however, arises not from the act of suggestion, but rather from the corrosive effects of suggestion on the reliability of the resulting identification. By rendering protection contingent on improper police arrangement of the suggestive circumstances, the Court effectively grafts a mens rea inquiry onto our rule. The Court’s holding enshrines a murky distinction—between suggestive confrontations intentionally orchestrated by the police and, as here, those inadvertently caused by police actions—that will sow confusion. It ignores our precedents’ acute sensitivity to the hazards of intentional and unintentional suggestion alike and unmoors our rule from the very interest it protects, inviting arbitrary results. And it recasts the driving force of our decisions as an interest in police deterrence, rather than reliability. Because I see no warrant for declining to assess the circumstances of this case under our ordinary approach, I respectfully dissent.

    Notes, Comments, and Questions

    In our next chapter we will conclude our review of identification evidence, focusing on recent state-court decisions, and will examine best practices suggested by modern research.

    Before moving on, students may wish to consider some real-life consequences of unintentional witness misidentification. In one case, Ronald Cotton was identified as the rapist who attacked Jennifer Thompson in 1984 in North Carolina. Police showed Thompson a photo array, and she chose Cotton’s photo. She later identified Cotton at a line up. He was convicted of rape and sentenced to life in prison. Subsequently, DNA evidence proved that a different man—who looked somewhat like Cotton—had committed the rape. Cotton was released from prison in 1995. Cotton and Thompson have since become advocates for criminal justice reform. They give talks and have published a book: Picking Cotton: Our Memoir of Injustice and Redemption

    On the book’s website, one can view documents from the case file, as well as photos of Cotton and of Bobby Poole, who committed the rape for which Cotton served more than ten years in prison. A short video (three minutes) about the case is available here: [YouTube].

    A longer video (30 minutes), featuring remarks from Thompson and Cotton, is available here: [YouTube].