A federally insured savings and loan association (hereafter "the
bank") was robbed by two unmasked men. Five bank employees
witnessed the robbery, and, on the day it occurred, gave the FBI
written statements. Petitioners, Simmons and Garrett, and another
(Andrews) were subsequently indicted for the crime. In the
afternoon of the day of the robbery, FBI agents made a warrantless
search of Andrews' mother's house and found two suitcases in the
basement, one of which contained incriminating items. The next
morning, FBI agents obtained and (without indicating the progress
of the investigation or suggesting who the suspects were) showed
separately to each of the five bank employee witnesses some
snapshots consisting mostly of group pictures of Andrews, Simmons,
and others. Each witness identified pictures of Simmons as one of
the robbers. None identified Andrews. Later, some of these
witnesses viewed indeterminate numbers of pictures, and all
identified Simmons. Three of the employees identified Garrett as
the second robber from other photographs. Before trial, Garrett
moved to suppress the Government's exhibit of the suitcase
containing the incriminating items as having been seized in
violation of his Fourth Amendment rights. To establish his standing
so to move, Garrett testified that the suitcase was similar to one
he had owned, and that he owned the clothing found therein. The
District Court denied the motion to suppress
Garrett's testimony at the "suppression" hearing was, over his
objection, admitted against him at trial. All five bank employee
witnesses positively identified Simmons in court as one of the
robbers, and three identified Garrett, the two others testifying
that they did not get a good look at him. The District Court denied
a defense request under 18 U.S.C. § 3500 (the Jencks Act) for the
production of the photographs shown to the witnesses before trial,
the defense apparently claiming that they were incorporated in the
written statements, which the Government had made available to the
defense. That Act provides that, after a witness has testified for
the Government in a federal criminal prosecution, the Government
must, on a defense request, produce
Page 390 U. S. 378
any "statement of the witness" in the Government's possession
"which relates to the subject matter as to which the witness has
testified." Petitioners and Andrews were convicted. Each
petitioner's conviction (but not Andrews') was affirmed by the
Court. of Appeals. Simmons asserts that the pretrial identification
procedure through use of the photographs was so unduly prejudicial
as fatally to taint his conviction. Both petitioners claim error in
the District Court's refusal to order production of the pictures
under the Jencks Act. Garrett urges violation of his constitutional
rights when testimony in support of his "suppression" motion was
admitted against him at trial.
1. In the light of the totality of the circumstances surrounding
this case, the identification procedure through use of the
photographs was not such as to deny Simmons due process of law or
to call for reversal under the Court's supervisory authority. Pp.
390 U. S.
(a) Each case involving pretrial initial identification by
photographs must be considered on its own facts, and convictions
based on eyewitness identification at trial following such pretrial
identification will be set aside on the ground of prejudice only if
the pretrial identification procedure was so impermissibly
suggestive as to give rise to a very substantial likelihood of
irreparable misidentification. P. 390 U. S.
(b) Here resort to photographic identification by the FBI was
necessary: a serious felony had been committed; the perpetrators
were at large; the inconclusive clues led to Andrews and Simmons,
and the agents had to determine swiftly if they were on the right
track. Pp. 390 U. S.
(c) In the circumstances of this case, there was little chance
that the procedure would lead to misidentification of Simmons. Pp.
390 U. S.
2. Since none of the photographs was acquired or shown to the
witnesses until the day after the witnesses gave statements to the
FBI, the District Court correctly held that the photographs were
not part of those statements, and hence not producible for the
defense under the Jencks Act. P. 390 U. S.
3. In view of all the attendant circumstances, including the
strength of the eyewitness identification of Simmons, the District
Court's refusal (apart from any requirement of the Jencks Act) to
order production of the photographs was not an abuse of its
discretion as to Simmons. Pp. 390 U. S.
Page 390 U. S. 379
4. When a defendant testifies in support of a motion to suppress
evidence on Fourth Amendment grounds, his testimony may not be
thereafter admitted against him at trial on the issue of guilt
unless he makes no objection. Pp. 390 U. S.
(a) Garrett justifiably believed that his testimony that he
owned the suitcase was necessary to show that he had standing to
claim that it was illegally seized; hence, the testimony was an
integral part of his Fourth Amendment exclusion claim. Pp.
390 U. S.
(b) The rationale of the courts below for their holdings that
Garrett's testimony was admissible when the motion to suppress had
failed was that the testimony had been "voluntarily" given and
relevant, and therefore was admissible like any other prior
testimony or admission. Pp. 390 U. S.
(c) This rule not only imposes a condition which may deter a
defendant from making a Fourth Amendment objection; as a practical
matter, it makes a defendant who wishes to establish standing do so
at the risk that his words may later be used to incriminate him. P.
390 U. S.
(d) In the circumstances of this case, it is intolerable that
one constitutional right should have to be surrendered in order to
assert another. P. 390 U. S.
371 F.2d 296, affirmed in part, reversed and remanded in
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.
Page 390 U. S. 380
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. [Footnote 1
] 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
Page 390 U. S. 381
of petitioner Garrett as depicting the other robber, the other
two witnesses stating that they did not have a clear view of the
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 under 18 U.S.C. § 3500 (the so-called Jencks
Act) 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. 371 F.2d 296.
We granted certiorari as to Simmons and Garrett, 388 U.
, to consider the following claims. First, 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
Page 390 U. S. 382
over the lower federal courts. Second, both petitioners contend
that the District Court erred in refusing defense requests for
production under 18 U.S.C. § 3500 of the pictures of the
petitioners which were shown to eyewitnesses prior to trial. Third,
Garrett urges that his constitutional rights were violated when
testimony given by him in support of his "suppression" motion was
admitted against him at trial. For reasons which follow, we affirm
the judgment of the Court of Appeals as to Simmons, but reverse as
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
In support of his argument, Simmons looks to last Term's
"lineup" decisions -- United States v. Wade, 388 U.
, and Gilbert v. California, 388 U.
-- in which this Court first departed from the
rule that the manner of an extrajudicial identification affects
only the weight, not the admissibility, of identification testimony
at trial. The rationale of those cases was that an
Page 390 U. S. 383
accused is entitled to counsel at any "critical stage of the
prosecution," and that a post-indictment lineup is such a "critical
388 U.S. at 388 U. S.
-237. Simmons, however, 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. See Stovall
v. Denno, 388 U. S. 293
388 U. S. 302
Palmer v. Peyton,
359 F.2d 199. 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. [Footnote
] 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. [Footnote 3
] 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
Page 390 U. S. 384
seen, reducing the trustworthiness of subsequent lineup or
courtroom identification. [Footnote
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. This standard accords with our
resolution of a similar issue in Stovall v. Denno,
388 U. S. 293
388 U. S.
-302, and with decisions of other courts on the
question of identification by photograph. [Footnote 5
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
Page 390 U. S. 385
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. The justification for this method
of procedure was hardly less compelling than that which we found to
justify the "one-man lineup" in Stovall v. Denno,
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
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
Page 390 U. S. 386
respects fallen short of the ideal. [Footnote 6
] 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
It is next contended by both petitioners that, in any event, the
District Court erred in refusing a defense request that the
photographs shown to the witnesses prior to trial be turned over to
the defense for purposes of cross-examination. This claim to
production is based on 18 U.S.C. § 3500, the so-called Jencks Act.
That Act, passed in response to this Court's decision in Jencks
v. United States, 353 U. S. 657
provides that, after a witness has testified for the Government in
a federal criminal prosecution, the Government must, on request of
the defense, produce any
"statement . . . of the witness in the possession of the United
States which relates to the subject matter as to which the witness
For the Act's purposes, as they relate to this case, a
"statement" is defined as "a written statement made by said witness
and signed or otherwise adopted or approved by him. . . ."
Page 390 U. S. 387
Written statements of this kind were taken from all five
eyewitnesses by the FBI on the day of the robbery. Apparently none
was taken thereafter. When these statements were produced by the
Government at trial pursuant to § 3500, the defense also claimed
the right to look at the photographs "under 3500." The District
Judge denied these requests.
The petitioners' theory seems to be that the photographs were
incorporated in the written statements of the witnesses, and that
they therefore had to be produced under § 3500. The legislative
history of the Jencks Act does confirm that photographs must be
produced if they constitute a part of a written statement.
] However, the
record in this case does not bear out the petitioners' claim that
the pictures involved here were part of the statements which were
approved by the witnesses and, therefore, producible under § 3500.
It appears that all such statements were made on the day of the
robbery. At that time, the FBI and police had no pictures of the
petitioners. The first pictures were not acquired and shown to the
witnesses until the morning of the following day. Hence, they could
not possibly have been a part of the statements made and approved
by the witnesses the day of the robbery.
The petitioners seem also to suggest that, quite apart from §
3500, the District Court's refusal of their request for the
photographs amounted to an abuse of discretion. The photographs
were not referred to by the Government in its case-in-chief. They
were first asked for by the defense after the direct examination of
the first eyewitness,
Page 390 U. S. 388
on the second day of the trial. When the defense requested the
pictures, counsel for the Government noted that there were a
"multitude" of pictures, and stated that it might be difficult to
identify those which were shown to particular witnesses. However,
he indicated that the Government was willing to furnish all of the
pictures, if they could be found. The District Court, referring to
the fact that production of the photographs was not required under
§ 3500, stated that it would not stop the trial in order to have
the pictures made available.
Although the pictures might have been of some assistance to the
defense, and although it doubtless would have been preferable for
the Government to have labeled the pictures shown to each witness
and kept them available for trial, [Footnote 8
] we hold that, in the circumstances, the
refusal of the District Court to order their production did not
amount to an abuse of discretion, at least as to petitioner
Simmons. [Footnote 9
defense surely knew that photographs had played a role in the
identification process. Yet there was no attempt to have the
pictures produced prior to trial pursuant to Fed.Rule Crim.Proc.
16. When production of the pictures was sought at trial, the
defense did not explain why they were
Page 390 U. S. 389
needed, but simply argued that production was required under §
3500. Moreover, the strength of the eyewitness identifications of
Simmons renders it highly unlikely that nonproduction of the
photographs caused him any prejudice.
Finally, it is contended that it was reversible error to allow
the Government to use against Garrett on the issue of guilt the
testimony given by him upon his unsuccessful motion to suppress as
evidence the suitcase seized from Mrs. Mahon's basement and its
contents. That testimony established that Garrett was the owner of
the suitcase. [Footnote
In order to effectuate the Fourth Amendment's guarantee of
freedom from unreasonable searches and seizures, this Court long
ago conferred upon defendants in federal prosecutions the right,
upon motion and proof, to have excluded from trial evidence which
had been secured by means of an unlawful search and seizure.
Weeks v. United States, 232 U. S. 383
More recently, this Court has held that "the exclusionary rule is
an essential part of both the Fourth and Fourteenth Amendments. . .
." Mapp v. Ohio, 367 U. S. 643
367 U. S.
However, we have also held that rights assured by the Fourth
Amendment are personal rights, and that they may be enforced by
exclusion of evidence only at the instance of one whose own
protection was infringed by the search and seizure. See, e.g.,
Jones v. United States, 362 U. S. 257
362 U. S.
-261. At one time, a defendant who wished to assert a
Fourth Amendment objection was required to show that he was the
owner or possessor of
Page 390 U. S. 390
the seized property or that he had a possessory interest in the
searched premises. [Footnote
] In part to avoid having to resolve the issue presented by
this case, we relaxed those standing requirements in two
alternative ways in Jones v. United States, supra.
we held that, when, as in Jones,
possession of the seized
evidence is itself an essential element of the offense with which
the defendant is charged, the Government is precluded from denying
that the defendant has the requisite possessory interest to
challenge the admission of the evidence. Second, we held
alternatively that the defendant need have no possessory interest
in the searched premises in order to have standing; it is
sufficient that he be legitimately on those premises when the
search occurs. Throughout this case, petitioner Garrett has
justifiably, and without challenge from the Government, proceeded
on the assumption that the standing requirements must be satisfied.
] On that
premise, he contends that testimony given by a defendant to meet
such requirements should not be admissible against him at trial on
the question of guilt or innocence. We agree.
Under the standing rules set out in Jones,
be occasions, even in prosecutions for nonpossessory offenses, when
a defendant's testimony will be needed to establish standing. This
case serves as an example.
Page 390 U. S. 391
Garrett evidently was not in Mrs. Mahon's house at the time his
suitcase was seized from her basement. The only, or at least the
most natural, way in which he could found standing to object to the
admission of the suitcase was to testify that he was its owner.
] Thus, his
testimony is to be regarded as an integral part of his Fourth
Amendment exclusion claim. Under the rule laid down by the courts
below, he could give that testimony only by assuming the risk that
the testimony would later be admitted against him at trial.
Testimony of this kind, which links a defendant to evidence which
the Government considers important enough to seize and to seek to
have admitted at trial, must often be highly prejudicial to a
defendant. This case again serves as an example, for Garrett's
admitted ownership of a suitcase which only a few hours after the
robbery was found to contain money wrappers taken from the
victimized bank was undoubtedly a strong piece of evidence against
him. Without his testimony, the Government might have found it hard
to prove that he was the owner of the suitcase. [Footnote 14
The dilemma faced by defendants like Garrett is most extreme in
prosecutions for possessory crimes, for then the testimony required
for standing itself proves an element of the offense. We eliminated
that Hobson's choice in Jones v. United States, supra,
relaxing the standing requirements. This Court has never considered
squarely the question whether defendants charged with nonpossessory
crimes, like Garrett, are entitled to be relieved
Page 390 U. S. 392
of their dilemma entirely. [Footnote 15
] The lower courts which have considered the
matter, both before and after Jones,
have, with two
exceptions, agreed with the holdings of the courts below that the
defendant's testimony may be admitted when, as here, the motion to
suppress has failed. [Footnote
] The reasoning of some of these courts would seem to suggest
that the testimony would be admissible even if the motion to
suppress had succeeded, [Footnote 17
] but the only court which has actually
decided that question held that, when the motion to suppress
succeeds, the testimony given in support of it is excludable as a
"fruit" of the unlawful search. [Footnote 18
] The rationale for admitting the testimony
when the motion fails has been that the testimony is voluntarily
given and relevant, and that it is therefore entitled to admission
on the same basis as any other prior testimony or admission of a
party. [Footnote 19
It seems obvious that a defendant who knows that his testimony
may be admissible against him at trial will sometimes be deterred
from presenting the testimonial proof of standing necessary to
assert a Fourth Amendment
Page 390 U. S. 393
claim. The likelihood of inhibition is greatest when the
testimony is known to be admissible regardless of the outcome of
the motion to suppress. But even in jurisdictions where the
admissibility of the testimony depends upon the outcome of the
motion, there will be a deterrent effect in those marginal cases in
which it cannot be estimated with confidence whether the motion
will succeed. Since search and seizure claims depend heavily upon
their individual facts, [Footnote 20
] and since the law of search and seizure is
in a state of flux, [Footnote
] the incidence of such marginal cases cannot be said to be
negligible. In such circumstances, a defendant with a substantial
claim for the exclusion of evidence may conclude that the admission
of the evidence, together with the Government's proof linking it to
him, is preferable to risking the admission of his own testimony
connecting himself with the seized evidence.
The rule adopted by the courts below does not merely impose upon
a defendant a condition which may deter him from asserting a Fourth
Amendment objection -- it imposes a condition of a kind to which
this Court has always been peculiarly sensitive. For a defendant
who wishes to establish standing must do so at the risk that the
words which he utters may later be used to incriminate him. Those
courts which have allowed the admission of testimony given to
establish standing have reasoned that there is no violation of the
Fifth Amendment's Self-Incrimination Clause because the testimony
was voluntary. [Footnote 22
As an abstract matter, this may well be true. A defendant is
"compelled" to testify in support of a motion to suppress only in
the sense that, if he
Page 390 U. S. 394
refrains from testifying, he will have to forgo a benefit, and
testimony is not always involuntary as a matter of law simply
because it is given to obtain a benefit. [Footnote 23
] However, the assumption which underlies
this reasoning is that the defendant has a choice: he may refuse to
testify and give up the benefit. [Footnote 24
] When this assumption is applied to a
situation in which the "benefit" to be gained is that afforded by
another provision of the Bill of Rights, an undeniable tension is
created. Thus, in this case, Garrett was obliged either to give up
what he believed, with advice of counsel, to be a valid Fourth
Amendment claim or, in legal effect, to waive his Fifth Amendment
privilege against self-incrimination. In these circumstances, we
find it intolerable that one constitutional right should have to be
surrendered in order to assert another. We therefore hold that,
when a defendant testifies in support of a motion to suppress
evidence on Fourth Amendment grounds, his testimony may not
thereafter be admitted against him at trial on the issue of guilt
unless he makes no objection.
For the foregoing reasons, we affirm the judgment of the Court
of Appeals so far as it relates to petitioner Simmons. We reverse
the judgment with respect to petitioner Garrett, and as to him
remand the case to the Court of Appeals for further proceedings
consistent with this opinion
It is so ordered.
MR. JUSTICE MARSHALL took no part in the consideration or
decision of this case.
Page 390 U. S. 395
Mrs. Mahon also testified that, at about 3:30 p.m. the same day,
six men with guns forced their way into and ransacked her house.
However, these men were never identified, and they apparently took
P. Wall, Eye-Witness Identification in Criminal
Cases 74-77 (1965).
See, e.g., People v. Evans, 39 Cal. 2d
, 246 P.2d 636.
The reliability of the identification procedure could have been
increased by allowing only one or two of the five eyewitnesses to
view the pictures of Simmons. If thus identified, Simmons could
later have been displayed to the other eyewitnesses in a lineup,
thus permitting the photographic identification to be supplemented
by a corporeal identification, which is normally more accurate.
P. Wall, Eye-Witness Identification in Criminal Cases
83 (1965); Williams, Identification Parades,  Crim.L.Rev.
525, 531. Also, it probably would have been preferable for the
witnesses to have been shown more than six snapshots, for those
snapshots to have pictured a greater number of individuals, and for
there to have been proportionally fewer pictures of Simmons.
at 782; Williams,
In the discussion of the bill on the floor of the Senate,
Senator O'Mahoney, sponsor of the bill in the Senate, stated that
photographs per se
were not required to be produced under
the bill, but that, "[i]f the pictures have anything to do with the
statement of the witness . . . , of course, that would be part of
it. . . ." 103 Cong.Rec. 16489.
P. Wall, Eye-Witness Identification in Criminal
Cases 84 (195); Williams, Identification Parades, 
Crim.L.Rev. 525, 530.
Garrett was also initially identified from photographs, but at a
later date than Simmons. He was identified by fewer witnesses than
was Simmons, and even those witnesses had less opportunity to see
him during the robbery than they did Simmons. The record is opaque
as to the number and type of photographs of Garrett which were
shown to these witnesses, and as to the circumstances of the
showings. However, it is unnecessary to decide whether Garrett was
prejudiced by the District Court's failure to order production of
the pictures at trial, since we are reversing Garrett's conviction
on other grounds.
Although petitioner Simmons objected at trial to the admission
of Garrett's testimony, the claim was not pressed on his behalf
here. Garrett did not mention Simmons in his testimony, and the
District Court instructed the jury to consider the testimony only
with reference to Garrett.
See, e.g., Jones v. United States, 362 U.
, at 362 U. S. 262
Edwards, Standing to Suppress Unreasonably Seized Evidence, 47
Nw.U.L.Rev. 471 (1952).
It has been suggested that the adoption of a "police deterrent"
rationale for the exclusionary rule, see Linkletter v.
Walker, 381 U. S. 618
logically dictates that a defendant should be able to object to the
admission against him of any unconstitutionally seized evidence.
Comment, Standing to Object to an Unreasonable Search
and Seizure, 34 U.Chi.L.Rev. 342 (1967); Note, Standing to Object
to an Unlawful Search and Seizure, 1965 Wash.U.L.Q. 488. However,
that argument is not advanced in this case, and we do not consider
The record shows that Mrs. Mahon, the owner of the premises from
which the suitcase was taken, disclaimed all knowledge of its
presence there and of its ownership.
The Government concedes that there were no identifying marks on
the outside of the suitcase. See
Brief for the United
the only reference to the subject was a
"[The defendant] has been faced . . . with the chance that the
allegations made on the motion to suppress may be used against him
at the trial, although that they may is by no means an inevitable
holding. . . ."
362 U.S. at 362 U. S.
See Heller v. United States,
57 F.2d 627; Kaiser v.
60 F.2d 410; Fowler v. United States,
239 F.2d 93; Monroe v. United States,
320 F.2d 277;
United States v. Taylor,
326 F.2d 277; United States
380 F.2d 103; United States v.
Lindsly, 7 F.2d 247
rev'd on other grounds,
12 F.2d 771. Contra, see
Bailey v. United States,
128 U.S.App.D.C. 354, 389 F.2d 305;
United States v. Lewis, 270 F.
, 810, n. 1 (dictum).
See, e.g., Heller v. United States,
57 F.2d 627;
Monroe v. United States,
320 F.2d 277.
See Safarik v. United States,
62 F.2d 892,
63 F.2d 369. Accord, Fowler v.
239 F.2d 93 (dictum); cf. Fabri v. United
24 F.2d 185.
cases cited in n
See, e.g., United States v. Rabinowitz, 339 U. S.
, 339 U. S.
E.g., compare Warden v. Hayden, 387 U.
, with Gouled v. United States,
255 U. S. 298
compare Camara v. Municipal Court, 387 U.
, with Frank v. Maryland, 359 U.
See, e.g., Heller v. United States,
57 F.2d 627.
For example, testimony given for his own benefit by a plaintiff
in a civil suit is admissible against him in a subsequent criminal
4 Wigmore, Evidence § 1066 (3d ed.1940);
§ 2276 (McNaughton rev.1961).
MR. JUSTICE BLACK, concurring in part and dissenting in
I concur in affirmance of the conviction of Simmons, but dissent
from reversal of Garrett's conviction. I shall first discuss
1. 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
wide-ranging, 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
Page 390 U. S. 396
the "totality of the circumstances." Simmons' due process claim
here should be denied because it is frivolous. *
reasons, I vote to affirm Simmons' conviction.
2. I agree with the Court, in part for reasons it assigns, that
the District Court did not commit error in declining to permit the
photographs used to be turned over to the defense for purposes of
3. The Court makes new law in reversing Garrett's conviction on
the ground that it was error to allow the Government to use against
him testimony he had given upon his unsuccessful motion to suppress
evidence allegedly seized in violation of the Fourth Amendment. The
testimony used was Garrett's statement in the suppression hearing
that he was the owner of a suitcase which contained money wrappers
taken from the bank that was robbed. The Court is certainly guilty
of no overstatement in saying that this "was undoubtedly a strong
piece of evidence against [Garrett]." Ante
at 390 U. S. 391
In fact, one might go further and say that this testimony, along
with the statements of the eyewitnesses against him, showed beyond
all question that Garrett was one of the bank robbers. The question
then is whether the Government is barred from offering a truthful
statement made by a defendant at a suppression hearing in order to
prevent the defendant from winning an acquittal on the false
premise that he is not the owner of the property he has already
sworn that he owns. My answer to this question is "No." The Court's
answer is "Yes" on the premise that
"a defendant who knows that his testimony may be admissible
against him at trial will sometimes
Page 390 U. S. 397
be deterred from presenting the testimonial proof of standing
necessary to assert a Fourth Amendment claim."
at 390 U. S. 392
For the Court, though not for me, the question seems to be
whether the disadvantages associated with deterring a defendant
from testifying on a motion to suppress are significant enough to
offset the advantages of permitting the Government to use such
testimony when relevant and probative to help convict the defendant
of a crime. The Court itself concedes, however, that the deterrent
effect on which it relies comes into play, at most, only in
"marginal cases" in which the defendant cannot estimate whether the
motion to suppress will succeed. Ante
at 390 U. S. 393
The value of permitting the Government to use such testimony is, of
course, so obvious that it is usually left unstated, but it should
not for that reason be ignored. The standard of proof necessary to
convict in a criminal case is high, and quite properly so, but, for
this reason, highly probative evidence such as that involved here
should not lightly be held inadmissible. For me, the importance of
bringing guilty criminals to book is a far more crucial
consideration than the desirability of giving defendants every
possible assistance in their attempts to invoke an evidentiary rule
which itself can result in the exclusion of highly relevant
This leaves for me only the possible contention that Garrett's
testimony was inadmissible under the Fifth Amendment because it was
compelled. Of course, I could never accept the Court's statement
that "testimony is not always involuntary as a matter of law simply
because it is given to obtain a benefit." Ante
390 U. S. 394
No matter what Professor Wigmore may have thought about the
subject, it has always been clear to me that any threat of harm or
promise of benefit is sufficient to render a defendant's statement
involuntary. See Shotwell
Page 390 U. S. 398
Mfg. Co. v. United States, 371 U.
, 371 U. S. 367
(1963) (dissenting opinion). The reason why the Fifth Amendment
poses no bar to acceptance of Garrett's testimony is not,
therefore, that a promise of benefit is not generally fatal.
Rather, the answer is that the privilege against self-incrimination
has always been considered a privilege that can be waived, and the
validity of the waiver is, of course, not undermined by the
inevitable fact that, by testifying, a defendant can obtain the
"benefit" of a chance to help his own case by the testimony he
gives. When Garrett took the stand at the suppression hearing, he
validly surrendered his privilege with respect to the statements he
actually made at that time, and, since these statements were
therefore not "compelled," they could be used against him for any
The consequence of the Court's holding, it seems to me, is that
defendants are encouraged to come into court, either in person or
through other witnesses, and swear falsely that they do not own
property, knowing at the very moment they do so that they have
already sworn precisely the opposite in a prior court proceeding.
This is but to permit lawless people to play ducks and drakes with
the basic principles of the administration of criminal law.
There is certainly no language in the Fourth Amendment which
gives support to any such device to hobble law enforcement in this
country. While our Constitution does provide procedural safeguards
to protect defendants from arbitrary convictions, that governmental
charter holds out no promises to stultify justice by erecting
barriers to the admissibility of relevant evidence voluntarily
given in a court of Justice. Under the first principles of ethics
and morality, a defendant who secures a court order by telling the
truth should not be allowed to seek a court advantage later based
on a premise
Page 390 U. S. 399
directly opposite to his prior solemn judicial oath. This Court
should not lend the prestige of its high name to such a
justice-defeating stratagem. I would affirm Garrett's
* Although Simmons' "questions presented" raise no such
contention, the Court declines to use its "supervisory power" to
hold Simmons' rights were violated by the identification methods.
One must look to the Constitution in vain, I think, to find a
"supervisory power" in this Court to reverse cases like this on
such a ground.
MR. JUSTICE WHITE, concurring in part and dissenting in
I concur in Parts I and II of the Court's opinion, but dissent
from the reversal of Garrett's conviction substantially for the
reasons given by MR. JUSTICE BLACK in his separate opinion.