Held: A state criminal court is not required by the Due
Process Clause of the Fourteenth Amendment to conduct a hearing out
of the jury's presence whenever a defendant contends that a
witness' identification of him was arrived at improperly. Pp.
449 U. S.
345-349.
(a) Where identification evidence is at issue, no such special
considerations as exist where the issue of the voluntariness of a
confession is presented -- an involuntary confession being
inadmissible both because it is likely to be unreliable and because
of society's aversion to forced confessions, even if true,
Jackson v. Denno, 378 U. S. 368 --
justify a departure from the presumption that juries will follow
the trial court's instructions. It is the reliability of
identification evidence that primarily determines its
admissibility, and the proper evaluation of evidence under the
trial judge's instructions is the very task our system must assume
juries can perform. Pp.
449 U. S.
346-348.
(b) There is no merit to the contention that vigorous and full
cross-examination in the presence of the jury of witnesses as to
the possible improprieties of pretrial identifications is
inconsistent with due process of law. While a "predicament" is
always presented when a lawyer decides on cross-examination to ask
a question that may produce an answer unfavorable to his client,
the Due Process Clause does not inevitably require the abandonment
of the time-honored process of cross-examination as the device best
suited to determine the trustworthiness of testimonial evidence.
Pp.
449 U. S.
348-349.
(c) While a judicial determination outside the jury's presence
as to the admissibility of identification evidence may often be
advisable and, in some circumstances, not presented in these cases,
may be constitutionally necessary, it does not follow that the
Constitution requires a
per se rule compelling such a
procedure in every case. P.
449 U. S.
349.
608 F.2d 247, affirmed.
STEWART, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, BLACKMUN, POWELL, REHNQUIST, and STEVENS,
JJ., joined.
Page 449 U. S. 342
JUSTICE STEWART delivered the opinion of the Court.
These cases, consolidated for argument and decision in the Court
of Appeals and in this Court, present the question whether a state
criminal trial court is constitutionally compelled to conduct a
hearing outside the presence of the jury whenever a defendant
contends that a witness' identification of him was arrived at
improperly.
I
A
John Watkins, the petitioner in No. 79-5949, was convicted in a
Kentucky court of attempting to rob a Louisville liquor store. On
the night of January 11, 1975, four men entered the store, one of
whom asked for a pack of cigarettes. Walter Smith, an employee of
the store, turned around to get the cigarettes, and one of the men
said "[t]his is a hold-up." Donald Goeing, a part owner of the
store, had been stocking a soft-drink cooler, and when he heard
those words, he turned towards the robbers. The man who had spoken
thereupon fired two shots at him, one striking him in his arm, the
other in the region of his heart. The four men then fled.
That night, Smith and Goeing described the gunman to the police.
Two days later, the police in the presence of Smith conducted
lineup consisting of three men, one of whom was
Page 449 U. S. 343
Watkins. Smith identified Watkins as the gunman. That same day,
the police took Watkins to Goeing's hospital bed, and Goeing
identified Watkins as the man who had shot him. Watkins was then
charged with first-degree robbery and first-degree assault.
At the subsequent trial of Watkins, the prosecution called Smith
and Goeing as witnesses. They both identified Watkins as Goeing's
assailant, but were not asked by the prosecution about the lineup
or the showup. Watkins' counsel, however, cross-examined both men
at some length about both the lineup and showup. The prosecution
then called a police officer. He testified that he had taken
Watkins to be identified at the hospital because, "at that time,
there was some question as to whether or not Mr. Goeing was going
to survive the incident." Watkins' counsel cross-examined the
officer about both the showup and the lineup and, through him,
introduced pictures of the lineup. For the defense, Watkins'
counsel called two witnesses who said that they had been in a pool
hall with Watkins at the time of the robbery and another witness
who said he had been in the liquor store at the time of the robbery
and had not seen Watkins. Finally, Watkins himself testified to his
innocence.
On appeal, as he had at trial, counsel for Watkins argued that
the trial court had a constitutional obligation to conduct a
hearing outside the presence of the jury to determine whether the
identification evidence was admissible. The Supreme Court of
Kentucky rejected that argument. Relying on its decision in
Ray
v. Commonwealth, 550
S.W.2d 482, 483 (1977), the court said
"'[a]lthough we are of the opinion that the holding of such a
hearing prior to the introduction of this testimony would have been
the preferred course to follow, we are not persuaded the failure to
have done so requires reversal of appellant's conviction.'"
Watkins v. Commonwealth, 565 S.W.2d 630, 631 (1978).
The court found that the identification procedures "fail[ed] to
Page 449 U. S. 344
raise any impermissible suggestiveness," and that Watkins "was
in no way prejudiced."
Ibid.
Watkins then unsuccessfully sought a writ of habeas corpus in
the United States District Court for the Western District of
Kentucky. That court held that, "although pretrial suppression
hearings are preferable, the failure to hold them does not require
the reversal of a conviction." [
Footnote 1] The court also found that admission of neither
the lineup nor the showup evidence at the state trial had violated
constitutional standards.
The Court of Appeals for the Sixth Circuit affirmed the District
Court's judgment and, like the District Court, ruled that a hearing
on the admissibility of identification evidence need not be held
outside the presence of the jury. Turning to the evidence itself,
the court cited
Stovall v. Denno, 388 U.
S. 293, as authority for holding that, "[g]iven the
seriousness of the wounds to Donald Goeing, a showup was necessary
in this case."
Summitt v. Bordenkircher, 608 F.2d 247,
252. The federal appellate court also held that the lineup evidence
had been constitutionally admissible at the state trial.
B
James Summitt, the petitioner in No. 79-5951, was convicted in a
Kentucky court of rape. Late on the night of July 20, 1974, the
prosecutrix was forced into a car occupied by two men, driven to an
isolated location, raped by one of the men, and then returned to
her own car. The next day, she reported the crime to the police,
described the rapist, and looked through 12 volumes of photographs
from police files, without identifying the man who had raped her.
Two days later she was taken to another police station, where she
examined more pictures. A police officer testified at the
subsequent trial of Summitt that,
"after a short time, she pointed to the defendant's picture and
said: 'This is the man that raped me.
Page 449 U. S. 345
There's no doubt about it, this is Jimbo, the man that raped
me.'"
In addition to the officer, the prosecutrix and her stepfather
as witnesses for the prosecution described the prosecutrix's
examination of the police photographs, and the prosecutrix
testified that Summitt was the man who had raped her. There was
extensive cross-examination.
The Supreme Court of Kentucky found
"no error in the trial court's refusal to conduct a suppression
hearing and no semblance of impermissible suggestiveness in the
identification procedure."
Summitt v. Commonwealth, 550
S.W.2d 548, 550 (1977). Summitt then sought a writ of habeas
corpus in the United States District Court for the Western District
of Kentucky, but that court found no constitutional error. The
Court of Appeals, as in the consolidated
Watkins case,
affirmed the judgment of the District Court, 608 F.2d 247.
We granted certiorari to consider the constitutional claim
asserted by both petitioners throughout their state and federal
court proceedings.
Sub nom. Watkins v. Bordenkircher and
Summitt v. Bordenkircher, 445 U.S. 926.
II
The issue before us is not, of course, whether a trial court
acts prudently in holding a hearing out of the presence of the jury
to determine the admissibility of identification evidence. The
prudence of such a hearing has been emphasized by many decisions in
the Courts of Appeals, most of which have in various ways
admonished trial courts to use that procedure. [
Footnote 2] The
Page 449 U. S. 346
issue here, rather, is whether such a hearing is required by the
Due Process Clause of the Fourteenth Amendment.
In urging an affirmative answer, the petitioners first cite
cases holding that a defendant has a right to the presence of his
counsel at a post-indictment lineup,
e.g., United States v.
Wade, 388 U. S. 218, and
that an identification procedure, in the absence of a lineup, may
be so defective as to deprive a defendant of due process of law,
e.g., Stovall v. Denno, 388 U. S. 293. The
petitioners then analogize their cases to
Jackson v.
Denno, 378 U. S. 368, in
which this Court enunciated a defendant's right "to have a fair
hearing and a reliable determination on the issue of
voluntariness,"
id. at
378 U. S. 377,
and in which the Court declared unconstitutional a New York
procedure which gave the jury what was in practice unreviewable
discretion to decide whether a confession was or was not
voluntary.
The petitioners contend that
Jackson v. Denno
established a
per se due process right to a hearing
outside the presence of the jury whenever a question of the
voluntariness of a confession is raised. If such a hearing is
required where the voluntariness of a confession is at issue, it
follows, the petitioners argue, that a similar hearing must also be
required where the propriety of identification procedures has been
questioned.
Even if it be assumed that
Jackson v. Denno did
establish the
per se rule asserted, [
Footnote 3] the petitioners' argument must
fail,
Page 449 U. S. 347
because
Jackson v. Denno is not analogous to the cases
now before us. The Court in
Jackson did reject the usual
presumption that a jury can be relied upon to determine issues
according to the trial judge's instructions, but the Court did so
because of the peculiar problems the issue of the voluntariness of
a confession presents. The Court pointed out that, while an
involuntary confession is inadmissible in part because such a
confession is likely to be unreliable, it is also inadmissible even
if it is true, because of the
"strongly felt attitude of our society that important human
values are sacrificed where an agency of the government, in the
course of securing a conviction, wrings a confession out of an
accused against his will."
Id. at
378 U. S. 385,
quoting
Blackburn v. Alabama, 361 U.
S. 199,
361 U. S.
206-207. The Court concluded in
Jackson that a
jury
"may find it difficult to understand the policy forbidding
reliance upon a coerced, but true, confession. . . . Objective
consideration of the conflicting evidence concerning the
circumstances of the confession becomes difficult and the [jury's]
implicit findings become suspect."
Id. at
378 U. S.
382.
Where identification evidence is at issue, however, no such
special considerations justify a departure from the presumption
that juries will follow instructions. It is the reliability of
identification evidence that primarily determines its
admissibility,
Manson v. Brathwaite, 432 U. S.
98,
432 U. S.
113-114;
United States ex rel. Kirby v.
Sturges, 510 F.2d 39-7, 402404 (CA7 1975) (Stevens, J.). And
the proper evaluation of evidence under the instructions of the
trial judge is the very task our system must assume juries can
perform. Indeed, as the cases before us demonstrate, the
only duty of a jury in cases in which identification
evidence has been admitted will often be to assess the reliability
of that evidence. Thus the
Page 449 U. S. 348
Court's opinion in
Manson v. Brathwaite approvingly
quoted Judge Leventhal's statement that,
""[w]hile identification testimony is significant evidence, such
testimony is still only evidence, and, unlike the presence of
counsel, is not a factor that goes to the very heart -- the
integrity' -- of the adversary process.""
"'Counsel can both cross-examine the identification witnesses
and argue in summation as to factors causing doubts as to the
accuracy of the identification -- including reference to both any
suggestibility in the identification procedure and any
countervailing testimony such as alibi.'"
432 U.S. at
432 U. S. 114,
n. 14, quoting
Clemons v. United States, 133 U.S.App.D.C.
27, 48, 408 F.2d 1230, 1251 (1968) (concurring opinion) (footnote
omitted).
The petitioners argue, however, that cross-examination is
inadequate in cases such as these. They assert that the presence of
the jury deterred their lawyers from cross-examining the witnesses
vigorously and fully as to the possible improprieties of the
pretrial identifications in these cases. The petitioners point to
no specific instances in the trial when their counsel were thus
deterred, and the record reveals that the cross-examination on the
identity issues was, if not always effective, both active and
extended. Nonetheless, the petitioners rely on a passage from
United States v. Wade, supra, which referred to
"the predicament in which Wade's counsel found himself --
realizing that possible unfairness at the lineup may be the sole
means of attack upon the unequivocal courtroom identification, and
having to probe in the dark in an attempt to discover and reveal
unfairness, while bolstering the government witness' courtroom
identification by bringing out and dwelling upon his prior
identification."
388 U.S. at
388 U. S.
240-241.
The petitioners, however, attribute undue significance to this
passage. The "predicament" described in
Wade was no
Page 449 U. S. 349
more than part of the Court's demonstration that, if
identification stemming from an improperly conducted lineup was to
be excluded, a courtroom identification based on such a lineup
logically had to be excluded as well.
A "predicament," if one chooses to call it that, is always
presented when a lawyer decides on cross-examination to ask a
question that may produce an answer unfavorable to his client. Yet,
under our adversary system of justice, cross-examination has always
been considered a most effective way to ascertain truth. [
Footnote 4] We decline in these cases
to hold that the Due Process Clause of the Fourteenth Amendment
inevitably requires the abandonment of the time-honored process of
cross-examination as the device best suited to determine the
trustworthiness of testimonial evidence.
A judicial determination outside the presence of the jury of the
admissibility of identification evidence may often be advisable. In
some circumstances, not presented here, such a determination may be
constitutionally necessary. But it does not follow that the
Constitution requires a
per se rule compelling such a
procedure in every case.
Accordingly, the judgments are
Affirmed.
* Together with No. 79-5951,
Summitt v. Souders,
Warden, also on certiorari to the same court.
[
Footnote 1]
The opinion of the District Court is unreported.
[
Footnote 2]
E.g., United States v. Mitchell, 540 F.2d 1163 (CA3
1976);
United States v. Cranson, 453 F.2d 123 (CA4 1971);
Haskins v. United States, 433 F.2d 836 (CA10 1970);
United States v. Rancilio, 429 F.2d 228 (CA8 1970);
United States v. Allison, 414 F.2d 407 (CA9 1969);
United States v. Broadhead, 413 F.2d 1351 (CA7 1969);
Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d
1230 (1968) (en banc). The Court of Appeals for the Fifth Circuit
has left the matter to the discretion of the district courts.
United States v. Smith, 546 F.2d 1275 (1977). At least two
Federal Courts of Appeals have commended hearings outside the
presence of the jury to state courts,
Nassar v. Vinzant,
519 F.2d 798 (CA1 1975);
United States ex rel. Phipps v.
Follette, 428 F.2d 912 (CA2 1970), and at least one has held
that due process may, in some circumstances, require a hearing
outside the presence of a jury to decide the admissibility of
identification evidence.
United States ex rel. Fisher v.
Driber, 546 F.2d 18 (CA3 1976).
[
Footnote 3]
See Pinto v. Pierce, 389 U. S. 31,
389 U. S.
32:
"This Court has never ruled that all voluntariness hearings must
be held outside the presence of the jury, regardless of the
circumstances. . . . [B]ecause a disputed confession may be found
involuntary and inadmissible by the judge, it would seem prudent to
hold voluntariness hearings outside the presence of the jury. . . .
In this case, however, the confession was held voluntary and
admitted as evidence suitable for consideration by the jury."
[
Footnote 4]
As Professor Wigmore put it, "[cross-examination] is beyond any
doubt the greatest legal engine ever invented for the discovery of
truth." 5 J. Wigmore, Evidence $ 1367 (Chadbourn rev.1974).
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins,
dissenting.
The Court holds that the Due Process Clause of the Fourteenth
Amendment did not require that the trial judge in each of the
instant cases hold a "fair hearing,"
Jackson v. Denno,
378 U. S. 368,
378 U. S. 377
(1964), to decide the admissibility of eyewitness identification
evidence, and that a remand is not now required to accord such a
hearing. While freely conceding that a "judicial determination
outside the presence of the
Page 449 U. S. 350
jury of the admissibility of identification evidence may often
be advisable [and i]n some circumstances . . . constitutionally
necessary,"
ante at
378 U. S. 349,
the Court holds that the Constitution does not require "a
per
se rule compelling such a procedure in every case,"
ibid. I dissent. In my view, the Due Process Clause
mandates such a hearing whenever a defendant, as both petitioners
did at their respective trials below, has proffered some evidence
that pretrial police procedures directed at identification were
impermissibly suggestive. The flaw in the Court's reasoning lies in
its statement that identification evidence does not implicate the
"special considerations" on which
Jackson v. Denno relied
to "justify a departure from the presumption that juries will
follow instructions."
Ante at
449 U. S. 347.
Surely jury instructions can ordinarily no more cure the erroneous
admission of powerful identification evidence than they can cure
the erroneous admission of a confession. Accordingly, the separate
judicial determination of admissibility required by
Jackson for confessions is equally applicable for
eyewitness identification evidence. Because the record before us is
inadequate to conclude that in each case the identification
evidence was properly admitted,
see Jackson v. Denno,
supra at
378 U. S.
376-377, I would remand these cases for further
proceedings.
At least since
United States v. Wade, 388 U.
S. 218 (1967), the Court has recognized the inherently
suspect qualities of eyewitness identification evidence. [
Footnote 2/1] Two particular attributes of
such evidence have significance for the instant cases. First,
eyewitness identification evidence is notoriously unreliable:
"The vagaries of eyewitness identification are well known; the
annals of criminal law are rife with instances
Page 449 U. S. 351
of mistaken identification. Mr. Justice Frankfurter once
said:"
"What is the worth of identification testimony even when
uncontradicted? The identification of strangers is proverbially
untrustworthy. The hazards of such testimony are established by a
formidable number of instances in the records of English and
American trials. These instances are recent -- not due to the
brutalities of ancient criminal procedure."
"The Case of Sacco and Vanzetti 30 (1927)."
Id. at 228 (footnote omitted).
Manson v.
Brathwaite, 432 U. S. 98,
432 U. S.
111-112 (1977), emphasized this troublesome
characteristic of such evidence:
"The driving force behind
United States v. Wade,
388 U. S.
218 (1967),
Gilbert v. California, 388 U. S.
263 (1967) (right to counsel at a post-indictment
lineup), 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."
Accordingly, to guard against the "dangers inherent in
eyewitness identification,"
United States v. Wade, supra
at
388 U. S. 235,
the Court has required the presence of counsel at postindictment
lineups, 388 U.S. at
388 U. S.
236-237, [
Footnote 2/2]
and has held inadmissible identification evidence tainted by
suggestive confrontation procedures and lacking adequate indicia of
reliability,
Page 449 U. S. 352
Manson v. Brathwaite, supra at
432 U. S. 114.
"Thus, Wade and its companion cases reflect the concern that the
jury not hear eyewitness testimony unless that evidence has aspects
of reliability." 432 U.S. at
432 U. S. 112.
An important thrust of our eyewitness identification evidence cases
from
Wade to
Manson, therefore, has been to
prevent impairment of the jury's decisionmaking process by the
introduction of unreliable identification evidence.
Second, despite its inherent unreliability, much eyewitness
identification evidence has a powerful impact on juries. Juries
seem most receptive to, and not inclined to discredit, testimony of
a witness who states that he saw the defendant commit the crime.
[
Footnote 2/3]
"[E]yewitness testimony is likely to be believed by jurors,
especially when it is offered with a high level of confidence, even
though the accuracy of an eyewitness and the confidence of that
witness may not be related to one another at all. All the evidence
points rather strikingly to the conclusion that there is almost
nothing more convincing than a live human being who takes
the stand, points a finger at the defendant, and says 'That's the
one!' [
Footnote 2/4] "
The powerful impact that much eyewitness identification evidence
has on juries, regardless of its reliability, [
Footnote 2/5] virtually
Page 449 U. S. 353
mandates that, when such evidence is inadmissible, the jury
should know nothing about the evidence.
See Manson v.
Brathwaite, supra at
432 U. S. 112.
For certainly the resulting prejudice to the defendant cannot be
erased by jury instructions.
See generally E. Loftus,
Eyewitness Testimony 189-190 (1979); P. Devlin, Report to the
Secretary of State for the Home Department of the Departmental
Committee on Evidence of Identification in Criminal Cases 149-150
(1976). The Court's contrary conclusion cavalierly dismisses the
inherent unreliability of identification evidence and its effect on
juries -- two attributes of confession evidence that led the Court
to mandate a "fair hearing" safeguard in
Jackson v.
Denno.
Any purported distinction between the instant cases and
Jackson is plainly specious. In
Jackson, this
Court invalidated a New York State procedure whereby the jury was
instructed first to determine the voluntariness of a defendant's
confession [
Footnote 2/6] and then
to disregard the confession if it concluded that the confession was
involuntary.
Jackson struck down this practice and
required first that the voluntariness
Page 449 U. S. 354
of a confession be determined by the judge before its admission
in evidence, and second that the jury not be allowed to consider an
inadmissible confession. Jackson refused to rely on the curative
effect of jury instructions where the trial judge had not applied
"
the exclusionary rules before permitting evidence to be
submitted to the jury.'" 378 U.S. at 378 U. S. 382,
n. 10, quoting Meltzer, Involuntary Confessions: The Allocation of
Responsibility Between Judge and Jury, 21 U.Chi.L.Rev. 317, 327
(1954). [Footnote 2/7]
For purposes of the instant cases, three factors central to our
decision in
Jackson are apposite. First,
Jackson
stated, as the Court today notes,
ante at
449 U. S.
347,
"that the Fourteenth Amendment forbids the use of involuntary
confessions . . . because of the probable unreliability of
confessions that are obtained in a manner deemed coercive."
378 U.S. at
378 U. S.
385-386. Second,
Jackson stated, as the Court
today further notes,
ante at
449 U. S. 347,
that involuntary confessions are inadmissible
"because of the 'strongly felt attitude of our society that
important human values are sacrificed where an agency of the
government, in the course of securing a conviction, wrings a
confession out of an accused against his will.'"
378 U.S. at
378 U. S. 386.
[
Footnote 2/8] Third, because of
the sensitive nature of confession
Page 449 U. S. 355
evidence,
Jackson found that instructions were not
adequate to assure that the jury would ignore involuntary
confession evidence:
"Under the New York procedure, the fact of a defendant's
confession is solidly implanted in the jury's mind, for it has not
only heard the confession, but it has also been instructed to
consider and judge its voluntariness, and is in position to assess
whether it is true or false. [
Footnote
2/9] If it finds the confession involuntary, does the jury --
indeed, can it -- then disregard the confession in accordance with
its instructions? If there are lingering doubts about the
sufficiency of the other evidence, does the jury unconsciously lay
them to rest by resort to the confession? Will uncertainty about
the sufficiency of the other evidence to prove guilt beyond a
reasonable doubt actually result in acquittal when the jury knows
the defendant has given a truthful confession.?"
Id. at
378 U. S. 388
(footnote omitted) .
Similar considerations plainly require a hearing in the case of
identification evidence. First, there can be little doubt that
identification evidence is as potentially unreliable as confession
evidence.
See supra at
449 U. S.
350-352. Second, suggestive confrontation procedures
which, in the totality of the circumstances, create "
a very
substantial likelihood of irreparable misidentification,'"
Manson v. Brathwaite, 432 U.S. at 432 U. S. 116,
quoting Simmons v. United States, 390 U.
S. 377, 390 U. S. 384
(1968), are as impermissible a police practice as the securing of a
custodial confession determined, in the totality of the
circumstances, to be involuntary, see United States v.
Washington, 431 U. S. 181,
431 U. S. 188
(1977); cf. 441 U. S.
Butler,
Page 449 U. S. 356
441 U. S. 369,
441 U. S. 374
375 (1979) (waiver).
See also Manson v. Brathwaite supra,
at
432 U. S. 112;
Foster v. California, 394 U. S. 440,
394 U. S. 442
443 (1969);
United States v. Wade, 388 U.S. at
388 U. S.
228-229,
388 U. S.
232-235;
Stovall v. Denno, 388 U.
S. 293,
388 U. S. 302
(1967). And third, because of the extraordinary impact of much
eyewitness identification evidence, juries hearing such evidence
will be no more able fully to ignore it upon instruction of the
trial judge than will juries hearing confession evidence. [
Footnote 2/10] To expect a jury to engage
in the collective mental gymnastic of segregating and ignoring such
testimony upon instruction is utterly unrealistic. The Court's bald
assertion, therefore, that jury instructions are adequate to
protect the accused is as untrue for identification evidence as it
is for involuntary confessions.
Nor can it be assumed, as the Court has, that cross-examination
will protect the accused in this circumstance. That is no more true
here than it was in
Jackson, where the defendant was also
allowed to cross-examine on the question of voluntariness.
Cross-examination, of course, affects the weight and credibility
given by the jury to evidence, [
Footnote 2/11] but cross-examination is both an
ineffective and a wrong tool for purging inadmissible
identification evidence from the jurors' minds. It is an
ineffective tool because all of the scientific
Page 449 U. S. 357
evidence suggests that much eyewitness identification testimony
has an unduly powerful effect on jurors. Thus, the jury is likely
to give the erroneously admitted evidence substantial weight,
however skillful the cross-examination.
See generally E.
Loftus, Eyewitness Testimony 9 (1979). Cross-examination is also a
wrong tool in the sense that jury instructions are the means
normally employed to cure the erroneous introduction of evidence.
At best, cross-examination might diminish the weight the jury
accords to the admissible evidence. The likelihood is, however,
that the jury would continue to give the improperly admitted
evidence substantial weight, even if properly instructed to
disregard it.
It is clear beyond peradventure, I submit, that, because of the
dangers to a just result inherent in identification evidence -- its
unreliability and its unusual impact on the jury -- a "fair hearing
and a reliable determination" of admissibility,
Jackson v.
Denno, 378 U.S. at
378 U. S. 377,
are constitutionally mandated. The Due Process Clause obviously
precludes the jury from convicting on unreliable identification
evidence.
Manson v. Brathwaite, supra. [
Footnote 2/12] But the only way to be sure that
the jury will not rest its verdict on improper identification
evidence, as a practical matter, is by not permitting the jury to
hear it in the first place. A
Jackson v. Denno hearing
would expediently accomplish that purpose. [
Footnote 2/13] I believe that the Due Process Clause
requires no less.
Page 449 U. S. 358
A large and distinguished group shares my view. The lower
federal courts, with virtual unanimity, have encouraged the type of
hearing sought by petitioners. [
Footnote 2/14] As already noted,
Page 449 U. S. 359
the Court too states that "[a] judicial determination outside
the presence of the jury of the admissibility of identification
evidence may often be advisable [and, i]n some circumstances . . .
, constitutionally necessary."
Ante at
449 U. S. 349.
I should think it follows from this congruence of opinion on the
desirability of such a judicial hearing that evolving standards of
justice [
Footnote 2/15] mandate
such a hearing whenever a defendant proffers sufficient evidence to
raise a colorable claim that police confrontation procedures were
impermissibly suggestive.
See, e.g., United States ex rel.
Fisher v. Driber, 546 F.2d 18, 22 (CA3 1976).
In the instant cases, the suggestiveness of the confrontation
procedures was clearly shown, and equally clearly cross-examination
in front of the jury was inadequate to test the reliability of the
evidence because of the undoubted inhibiting effect on
cross-examination from fear that rigorous questioning of hostile
witnesses would strengthen the eyewitnesses' testimony and impress
it upon the jury.
See United States v. Wade, 388 U.S. at
388 U. S.
240-241. [
Footnote
2/16] In any event, the record
Page 449 U. S. 360
is inadequate to decide that petitioners could not have
succeeded in foreclosing admission of the evidence if they had been
afforded a hearing out of the jury's presence in the first place.
Accordingly, I would remand for such further proceedings as are
necessary to give these petitioners "a fair hearing and a reliable
determination,"
Jackson v. Denno, 378 U.S. at
378 U. S. 377,
that the identification evidence in each trial was not erroneously
admitted.
[
Footnote 2/1]
The special nature of eyewitness identification evidence has
produced an enormous reservoir of scholarly writings, many based on
solid empirical research. For a bibliography of that literature,
see E. Loftus, Eyewitness Testimony 237-247 (1979).
[
Footnote 2/2]
"[S]uggestibility inherent in the context of the pretrial
identification" is a factor that has led the Court to require the
presence of counsel at post-indictment lineups.
United States
v. Wade, 388 U.S. at
388 U. S. 235.
If counsel is not present at such a lineup, the identification may
not be introduced into evidence at trial and an in-court
identification may be made only if the prosecutor establishes
"by clear and convincing evidence that the in-court
identification [was] based upon observatio[n] . . . of the suspect
other than the lineup identification."
Id. at
388 U. S.
240.
[
Footnote 2/3]
"[J]uries unfortunately are often unduly receptive to
[identification] evidence. . . ."
Manson v. Brathwaite,
432 U. S. 98,
432 U. S. 120
(1977) (MARSHALL, J., dissenting) (footnote omitted).
See
Loftus,
supra at 8-19; P. Wall, Eye-witness Identification
in Criminal Cases 19-23 (1985); Hammelmann & Williams,
Identification Parades -- II, 1963 Crim.L.Rev. 545, 550.
See
generally A. Yarmey, The Psychology of Eyewitness Testimony
(1979).
[
Footnote 2/4]
Loftus,
supra at 19 (emphasis supplied). Professor
Loftus exhaustively canvasses statistical and psychological
evidence which persuasively supports her conclusion that eyewitness
identification evidence is "overwhelmingly influential."
Id. at 9.
[
Footnote 2/5]
Professor Loftus,
ibid. (emphasis in original),
observes that "[j]urors have been known to accept eyewitness
testimony pointing to guilt even when it is
far outweighed
by evidence of innocence."
Wall,
supra at 19 (footnotes omitted) (emphasis
supplied), concludes:
"[J]uries are unduly receptive to identification evidence, and
are not sufficiently aware of its dangers. It has been said that
'positive recognition by well intended uninterested persons is
commonly accepted unless the alibi is convincing,' and that
evidence of identification, however untrustworthy, is 'taken by the
average juryman as absolute proof.'"
[
Footnote 2/6]
Distinguishing
Jackson from the instant cases on the
basis that the jury there was first instructed to determine
voluntariness is not persuasive. That consideration goes to the
weight given the evidence by the jury.
Jackson itself
recognized that the lingering effect of the involuntary confession
might be decisive in the jury's deliberations. Such an effect is no
less likely to be decisive in the case of powerful eyewitness
identification evidence that a jury has been instructed to ignore.
In both instances, peculiarly powerful evidence must leave an
indelible impact on a juror's mind.
See 449
U.S. 341fn2/7|>n. 7,
infra.
[
Footnote 2/7]
The Court in
Jackson noted:
"'Due Process of law requires that a coerced confession be
excluded from consideration by the jury. It also requires that the
issue of coercion be tried by an unprejudiced trier, and,
regardless of the pious fictions indulged by the courts, it is
useless to contend that a juror who has heard the confession can be
uninfluenced by his opinion as to the truth or falsity of it. . . .
And the rule of exclusion ought not to be emasculated by admitting
the evidence and giving to the jury an instruction which, as every
judge and lawyer knows, cannot be obeyed.'"
378 U.S. at
378 U. S.
382-383, n. 10, quoting E. Morgan, Some Problems of
Proof Under the Anglo-American System of Litigation 104-105
(156).
[
Footnote 2/8]
Of course, police misbehavior is not always so lacking in
subtlety that involuntary confessions are invariably wrenched from
an accused by force. Thus, indirect methods of interrogation which
seek to elicit a statement from a custodial suspect may also
warrant a conclusion of involuntariness.
See Rhode Island v.
Innis, 446 U. S. 291,
446 U. S. 301
(1980) (interrogation includes actions which "the police should
know are reasonably likely to elicit an incriminating response");
cf. Brewer v. Williams, 430 U. S. 387
(1977) (Sixth Amendment violation).
[
Footnote 2/9]
See 449
U.S. 341fn2/6|>n. 6,
supra.
[
Footnote 2/10]
In both of these cases, the eyewitnesses were also the victims
of the crimes. Not only does that dual status affect the
reliability of the identification, but it also is likely to make
the testimony more powerful, and thus less curable by jury
instructions. Clearly, this is not a case where 14 reliable
identifications were properly received in evidence, but a 15th by a
nonvictim witness was subject to suggestive confrontation
procedures and was unreliable, thereby raising the possibility that
the error was harmless beyond a reasonable doubt.
[
Footnote 2/11]
In
Manson v. Brathwaite, 432 U.S. at
432 U. S. 116,
the Court stated:
"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."
[
Footnote 2/12]
In
Jackson v. Denno, the Court was concerned that the
jury not hear a defendant's confession until a trial judge had made
a preliminary determination of voluntariness. The Court assumed
that, were this not done, a deleterious impact on the jury's
deliberations would operate:
"[I]t is only a reliable determination on the voluntariness
issue which satisfies the constitutional rights of the defendant
and which would permit the jury to consider the confession in
adjudicating guilt or innocence."
378 U.S. at
378 U. S.
387.
[
Footnote 2/13]
The Court errs in any event in deciding these cases on the
premise that petitioners request a
per se rule requiring a
hearing out of the jury's presence in every case. In the first
place, petitioners rely substantially on authority which does not
go that far. Brief for Petitioners 43-45. Clearly, they have sought
reversal of their convictions on the basis that they were entitled
to such a hearing. Moreover, there is no question here that they
raised a colorable claim that the confrontation procedures were
impermissibly suggestive.
See, e.g., United States ex rel.
Fisher v. Driber, 546 F.2d 18, 22 (CA3 1976);
United
States v. Cranson, 453 F.2d 123, 127 (CA4 1971),
cert.
denied, 406 U.S. 909 (1972).
If the Court's result is out of concern for not adding another
layer of complexity to criminal litigation, that is understandable,
but not sufficient to supplant an accused's constitutional right.
Moreover, a rule requiring the defendant to proffer some minimum
quantum of evidence showing the suggestiveness of the confrontation
procedures would eliminate frivolous requests.
See, e.g.,
United States ex rel. Fisher v. Driber, supra at 22.
[
Footnote 2/14]
United States ex rel. Fisher v. Driber, supra at 22
(requiring hearing outside presence of jury where motion for such
hearing is not frivolous);
United States v. Smith, 546
F.2d 1275, 1279 (CA5 1977) (evidentiary hearing not required where
no critical facts in dispute);
United States v. Mitchell,
540 F.2d 1163, 1166 (CA3 1976) (defendant could have "requested a
hearing outside the presence of the jury in accordance with
Neil v. Biggers"),
cert. denied, 429 U.S. 1099
(1977);
Nassar v. Vinzant, 519 F.2d 798, 802, n. 4 (CA1)
(commending hearing out of jury's presence),
cert. denied,
423 U. S. 898
(1975);
United States v. Cranson, supra at 125-126
("evidentiary hearing outside the jury's presence is required" upon
motion to suppress);
Haskins v. United States, 433 F.2d
836, 838 (CA10 1970) (requiring hearing outside of jury's
presence);
United States v. Ranciglio, 429 F.2d 228, 230
(CA8) ("trial court, out of the hearing and presence of the jury,
conducted a hearing as required in
Wade"),
cert.
denied, 400 U.S. 959 (1970);
United States ex rel. Phipps
v. Follette, 428 F.2d 912, 913, n. 1 (CA2) ("commend[ing] . .
. practice" of hearing out of jury's presence),
cert.
denied, 400 U.S. 908 (1970);
United States v.
Allison, 414 F.2d 407, 410 (CA9) (requiring hearing outside of
jury's presence),
cert. denied, 396 U.S. 968 (1969);
United States v. Broadhead, 413 F.2d 1351, 1359 (CA7 1969)
(pretrial hearing approved),
cert. denied, 396 U.S. 1017
(1970);
Clemons v. United States, 133 U.S.App.D.C. 27, 34,
408 F.2d 1230, 1237 (1968) (en banc) (requiring hearing outside of
jury's presence or disclosure of prosecutor's evidence),
cert.
denied, 394 U.S. 964 (1969). Even the Court of Appeals
deciding these cases stated that it had "no doubt that" a hearing
out of the jury's presence "is the preferable procedure."
Summitt v. Bordenkircher, 608 F.2d 247, 250 (CA6
1979).
In addition, the Commonwealth of Kentucky, where petitioners
were tried and convicted, appears to require a hearing out of the
presence of the jury, upon defendant's motion, for confession and
for search evidence.
See Ky.Rule Crim.Proc. 9.78. In
addition,
Moore v. Commonwealth, 569
S.W.2d 150, 153 (Ky.1978), decided after petitioners were
convicted, held that the trial court's refusal to hold a
suppression hearing to determine the admissibility of
identification evidence constituted error. Previous Kentucky
appellate decisions had reached a similar conclusion.
E.g.,
Francis v. Commonwealth, 468
S.W.2d 287 (App. 1971).
[
Footnote 2/15]
See, e.g., Harper v. Virginia Board of Elections,
383 U. S. 663,
383 U. S. 669
(1966) (equal protection);
Trop v. Dulles, 356 U. S.
86,
356 U. S. 100-101
(195) (plurality opinion of Warren, C.J.) (Eighth Amendment).
[
Footnote 2/16]
It is no answer to say, as the Court does, that the record does
not reflect that petitioners' respective counsel were deterred by
the presence of the jury, for the simple reason that a cold record
cannot reflect questions not asked.