Petitioner was convicted of robbery of a Western Union office.
The office manager viewed a police station lineup of three men,
petitioner (who is almost six feet tall and who was wearing a
leather jacket similar to one worn by the robber) and two much
shorter men. The manager could not positively identify petitioner
as the robber, and asked for and was given a chance to speak to
him. Petitioner was brought into an office alone and seated across
from the manager at a table. The manager was still uncertain. About
a week later, he viewed another lineup, of petitioner and four
different men. This time the manager was "convinced" petitioner was
the robber. He testified to the lineup identifications at the trial
and repeated his identification in the courtroom.
Held:
1. Although the rule that an accused must be given the
opportunity to be represented by counsel at a lineup does not apply
to lineups conducted prior to June 12, 1967,
Stovall v.
Denno, 388 U. S. 293, the
conduct of identification procedures must not be "so unnecessarily
suggestive and conducive to irreparable mistaken identification" as
to be a denial of due process of law.
Id. at
388 U. S. 302.
P.442.
2. The suggestive elements in the repeated confrontations the
police arranged between the manager and petitioner so undermined
the reliability of the eyewitness identification as to violate due
process. Pp.
394 U. S.
442-443.
3. The question of whether the error was harmless under
Chapman v. California, 386 U. S. 18,
should be determined in the first instance by the California
courts. P.
394 U. S.
444.
Reversed and remanded.
Page 394 U. S. 441
MR. JUSTICE FORTAS delivered the opinion of the Court.
Petitioner was charged by information with the armed robbery of
a Western Union office in violation of California Penal Code §
211a. 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. 390 U.S. 994 (1968).
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
Page 394 U. S. 442
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. [
Footnote
1]
In
United States v. Wade, 388 U.
S. 218 (1967), and
Gilbert v. California,
388 U. S. 263
(1967), this Court held that, because of the possibility of
unfairness to the accused in the way a lineup is conducted, a
lineup is a "critical stage" in the prosecution, at which the
accused must be given the opportunity to be represented by counsel.
That holding does not, however, apply to petitioner's case, for the
lineups in which he appeared occurred before June 12, 1967.
Stovall v. Denno, 388 U. S. 293
(1967). But in declaring the rule of
Wade and
Gilbert to be applicable only to lineups conducted after
those cases were decided, we recognized that, Judged by the
"totality of the circumstances," the conduct of identification
procedures may be "so unnecessarily suggestive and conducive to
irreparable mistaken identification" as to be a denial of due
process of law.
Id. at
388 U. S. 302.
See Simmons v. United States, 390 U.
S. 377,
390 U. S. 383
(1968);
cf. P. Wall, Eye-Witness Identification in
Criminal Cases; J. Frank & B. Frank, Not Guilty; 3 J. Wigmore,
Evidence § 786a (3d ed.1940); 4,
id. § 1130.
Judged by that standard, this case presents a compelling example
of unfair lineup procedures. [
Footnote 2] In the
Page 394 U. S. 443
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.
See United States v. Wade, supra, at
388 U. S. 233.
When this did not lead to positive identification, the police
permitted a one-to-one confrontation between petitioner and the
witness. This Court pointed out in
Stovall that
"[t]he practice of showing suspects singly to persons for the
purpose of identification, and not as part of a lineup, has been
widely condemned."
388 U.S. at
388 U. S. 302.
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.
See Wall,
supra, at 64. 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."
See Biggers v.
Tennessee, 390 U. S. 404,
390 U. S. 407
(dissenting opinion). This procedure so undermined the reliability
of the eyewitness identification as to violate due process.
In a decision handed down since the Supreme Court of California
declined to consider petitioner's case, it reversed a conviction
because of the unfair makeup of a lineup. In that case, the
California court said:
"[W]e do no more than recognize . . . that unfairly constituted
lineups have in the past too often brought about the conviction of
the innocent."
People v. Caruso, 68 Cal. 2d
183, 188, 436 P.2d 336, 340 (1968). In the present case, the
pretrial confrontations clearly were so arranged as to make the
resulting identifications virtually inevitable.
Page 394 U. S. 444
The respondent invites us to hold that any error was harmless
under
Chapman v. California, 386 U. S.
18 (1967). We decline to rule upon this question in the
first instance. Accordingly, the judgment is reversed and the case
remanded for further proceedings not inconsistent with this
opinion.
Reversed and remanded.
MR. JUSTICE WHITE, with whom MR. JUSTICE HARLAN and MR. JUSTICE
STEWART concur, being unwilling in this case to disagree with the
jury on the weight of the evidence, would affirm the judgment.
[
Footnote 1]
California law requires that an accomplice's testimony be
corroborated. California Penal Code § 1111. There was also evidence
that Foster had been convicted for a similar robbery committed six
years before.
[
Footnote 2]
The reliability of properly admitted eyewitness identification,
like the credibility of the other parts of the prosecution's case,
is a matter for the jury. But it is the teaching of
Wade,
Gilbert, and
Stovall, supra, that, in some cases the
procedures leading to an eyewitness identification may be so
defective as to male the identification constitutionally
inadmissible as a matter of law.
MR. JUSTICE BLACK, dissenting.
The Court here directs the California courts to set aside
petitioner Foster's conviction for armed robbery of the Western
Union Telegraph Co. at Fresno, California. The night manager of the
telegraph company testified before the court and jury that two men
came into the office just after midnight, January 25, 1966, wrote a
note telling him it was a holdup, put it under his face, and
demanded money, flashed guns, took $531 and fled. The night manager
identified Foster in the courtroom as one of the men, and he also
related his identification of Foster in a lineup a week or so after
the crime. The manager's evidence, which no witness disputed, was
corroborated by the testimony of a man named Clay, who was Foster's
accomplice in the robbery and who testified for the State. The
testimony of these two eyewitnesses was also corroborated by proof
that Foster and another person had committed a prior armed robbery
of a Western Union office in another city six years before, when
they appeared at the company's office, presented a note to an
employee announcing their holdup, flashed a gun, and fled with
company money. In this case, Foster's attorney admitted
conviction
Page 394 U. S. 445
for the prior Western Union armed robbery. [
Footnote 2/1] The circumstances of the two
robberies appear to have been practically indistinguishable. Such
evidence that a particular person committed a prior crime has been
almost universally accepted as relevant and admissible to prove
that the same person was responsible for a later crime of the same
nature. [
Footnote 2/2] A narration
of these facts, falling from the lips of eyewitnesses, and not
denied by other eyewitnesses, would be enough, I am convinced, to
persuade nearly all lawyers and judges, unhesitatingly to say,
"There was clearly enough evidence of guilt here for a jury to
convict the defendant, since, according to practice, and indeed
constitutional command, the weight of evidence is for a jury, and
not for judges."
Nevertheless the Court in this case looks behind the evidence
given by witnesses on the stand and decides that, because of the
circumstances under which one witness first identified the
defendant as the criminal, the United States Constitution requires
that the conviction be reversed. The Court, however, fails to spell
out exactly what should happen to this defendant if there must be a
retrial, and thus avoids the apparently distasteful task of
specifying whether (1) at the new trial, the jury would again be
permitted to hear the eyewitness' testimony and the in-court
identification, so long as he does not refer to the previous
lineups, or (2) the eyewitness' "tainted" identification testimony
must be entirely excluded, thus compelling Foster's acquittal.
Objection to this ambiguity is the first of my reasons for
dissent.
Page 394 U. S. 446
I
The Court declares the judgment of conviction is reversed and
the case remanded for further proceedings not inconsistent with
this opinion. I am compelled to say that, if I were the trial judge
in this case, I would not know how to proceed or how to decide
whether the "error" in this case was harmless. Of course, when a
confession is held to have been compelled, that confession must not
be admitted to convict the defendant at all. But the situation in
this case is not that simple. For the Court has, in effect, decided
here that the officers of the law have so "arranged" lineups that
the eyewitness to the robbery has been led to make an "irreparable
mistaken identification." In other words, no one now or hereafter
can believe his identification of Foster as the robber. Since he
and the accomplice are the only eyewitnesses, and since, in order
to convict, California law requires evidence of an accomplice to be
corroborated, the Court's direction means, I suppose, that the
trial judge here should dismiss the case. [
Footnote 2/3] The Court's dilemma, which leads to its
ambiguous judgment as to the further disposition of this case,
points, I think, to the irreparable harm done to the cause of
justice by the Court's holding in this case.
II
Far more fundamental, however, is my objection to the Court's
basic holding that evidence can be ruled constitutionally
inadmissible whenever it results from identification
Page 394 U. S. 447
procedures that the Court considers to be "
unnecessarily
suggestive and conducive to irreparable mistaken identification.'"
[Footnote 2/4] One of the proudest
achievements of this country's Founders was that they had eternally
guaranteed a trial by jury in criminal cases, at least until the
Constitution they wrote had been amended in the manner they
prescribed. Only last year, in Duncan v. Louisiana,
391 U. S. 145
(1968), this Court emphatically decided, over strong dissents, that
this constitutional right to trial by jury in criminal cases is
applicable to the States. Of course, it is an incontestable fact in
our judicial history that the jury is the sole tribunal to weigh
and determine facts. That means that the jury must, if we keep
faith with the Constitution, be allowed to hear eyewitnesses and
decide for itself whether it can recognize the truth and whether
they are telling the truth. It means that the jury must be allowed
to decide for itself whether the darkness of the night, the
weakness of a witness' eyesight, or any other factor impaired the
witness' ability to make an accurate identification. To take that
power away from the jury is to rob it of the responsibility to
perform the precise functions the Founders most wanted it to
perform. And certainly a Constitution written to preserve this
indispensable, underodible core of our system for trying criminal
cases would not have included, hidden among its provisions, a
slumbering sleeper granting the judges license to destroy trial by
jury in whole or in part.
This brings me to the constitutional theory relied upon by the
Court to justify its invading the constitutional right of jury
trial. The Court here holds that:
"[J]udged by the 'totality of the circumstances,' the conduct of
identification procedures may be 'so
Page 394 U. S. 448
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."
Ante at
394 U. S. 442.
I do not deny that the "totality of circumstances" can be
considered to determine whether some specific constitutional
prohibitions have been violated, such, for example, as the Fifth
Amendment's command against compelling a witness to incriminate
himself. Whether evidence has been compelled is, of course, a
triable issue of fact. And the constitutional command not to compel
a person to be a witness against himself, like other issues of
fact, must be determined by a resolution of all facts and the
"totality" of them offered in evidence. Consequently were the
Court's legal formula posed for application in a coerced testimony
case, I could agree to it. But it is not. Instead, the 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. As we recently said
in
United States v. Augenblick, 393 U.
S. 348,
393 U. S. 352
(1969): "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
Page 394 U. S. 449
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.
Spencer v. Texas, 385 U.
S. 554 (1967);
Michelson v. United States,
335 U. S. 469
(1948).
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. . . ." [
Footnote 2/5] All of these different general
Page 394 U. S. 450
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
Page 394 U. S. 451
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.
I began my opposition to this fallacious concept of "due
process" even before I became a member of this Court, [
Footnote 2/6] and expressed it formally
soon after my service on the Court began. [
Footnote 2/7] And it was not long before I emphasized
that quite a different belief about the meaning of the phrase "due
process" had long existed in our judicial history in opposition to
the "decency and fairness" doctrine.
See Chambers v.
Florida, 309 U. S. 227,
309 U. S.
235-236, n. 8 (1940).
My experience on the Court has confirmed my early belief that
the "decency and fairness" due process test cannot stand
consistently with our written Constitution.
III
I agree with the Court that we should not undertake to pass on
the question of harmless error for the first time in this Court.
Under the Court's holding, the case should be remanded to the state
courts for decision of this question.
In recent years this Court has, in a series of cases, held that
most of the Bill of Rights is now applicable against the States, as
well as against the Federal Government. This has brought about a
tremendous increase in the number of state criminal cases involving
federal questions, some of which depend on the particular facts and
circumstances of the case. In Fifth Amendment
Page 394 U. S. 452
confession cases, for example, courts must, under prevailing
practice, hear evidence to determine whether confessions were
compelled. This Court has power in cases of that kind to review
evidence before the trial courts. No one can now predict with
accuracy how great a number of such cases are destined to come
before us, but all know it will be many. Should we not make it an
almost invariable practice to accept lower court findings of fact
on such issues, our Supreme Court is likely to find itself
preoccupied with the business of a state court of criminal appeals,
a condition not devoutly to be wished in the Court's interest or in
the interest of the administration of justice in general. This
problem is magnified many times over when account is taken of the
harmless error rules that many States have now adopted, since these
rules also raise factual issues involving a federal question
whenever the error itself is federal.
See Chapman v.
California, 386 U. S. 18
(1967). If trial errors are found, some courts along the line must
determine whether the error was harmless. That question has,
because of this Court's judgment, now arisen in this case. I agree
with the Court that we should not decide this question here. In the
present posture of criminal law, there are simply too many federal
questions in the state cases before us to defend a practice of our
deciding in the first instance that there was no harmless error.
There are many reasons for this other than the necessity of saving
our time for the vastly more important issues we must decide. To
say the least, the question whether an error in a particular case
is harmless is an issue peculiarly for lower, not for the highest,
appellate courts. Then, too, this issue can usually be tried more
efficiently, and just as fairly, by the local court that tried the
case or by the local appellate court that heard the first appeal.
This Court was not established to try such minor issues of fact for
the first time. Of course, I do not mean to suggest that
Page 394 U. S. 453
there should be an iron-clad rule always barring the Court from
deciding an issue in cases if it plainly and manifestly appears
that it would be egregiously unjust and undoubtedly wrong to leave
an issue undecided. But I do not think this even distantly
approaches being such a case. Even though I steadfastly believe the
Court's basic holding is error, I do agree that we should not
establish a precedent of passing on harmless error for the first
time in this Court before the courts below have had an opportunity
to consider the question.
For the above reasons I dissent from the reversal and remand of
this case.
[
Footnote 2/1]
Counsel also admitted a prior felony conviction of assault with
intent to commit rape, a circumstance relevant in California in
connection with punishment.
[
Footnote 2/2]
See Spencer v. Texas, 385 U. S. 554,
385 U. S.
560-561 and n. 7 (1967);
State v. Chance, 92
Ariz. 351,
377 P.2d 197
(1962);
Nester v. State, 75 Nev. 41,
334 P.2d 524
(1959);
Mosley v. State, 211 Ga. 611,
87 S.E.2d 314
(1955); 2 J. Wigmore, Evidence § 416 (3d ed.1940 and 1964
Supp.).
[
Footnote 2/3]
The Court apparently means that the only other evidence against
Foster in this case -- his prior conviction for involvement in a
crime of a similar type -- is constitutionally admissible.
See
Spencer v. Texas, supra. But it may be doubtful whether this
past conviction, although highly relevant to the question of guilt,
could constitute corroboration of the accomplice's testimony within
the meaning of the California requirement.
[
Footnote 2/4]
Ante at
394 U. S. 442,
quoting from
Stovall v. Denno, 388 U.
S. 293,
388 U. S. 302
(1967).
[
Footnote 2/5]
Malinski v. New York, 324 U. S. 401,
324 U. S. 417
(opinion of Frankfurter, J.) (1945);
see also Rochin v.
California, 342 U. S. 165
(1952);
Irvine v. California, 347 U.
S. 128 (1954).
[
Footnote 2/6]
See, e.g., 81 Cong.Rec. App. pt. 9, pp. 638-639;
id. at 307.
[
Footnote 2/7]
See, e.g., McCart v. Indianapolis Water Co.,
302 U. S. 419,
302 U. S. 423
(1938) (dissenting opinion).