Glover, a trained Negro undercover state police officer,
purchased heroin from a seller through the open doorway of an
apartment while standing for two or three minutes within two feet
of the seller in a hallway illuminated by natural light. A few
minutes later, Glover described the seller to another police
officer as being
"a colored man, approximately five feet eleven inches tall, dark
complexion, black hair, short Afro style, and having high
cheekbones, and of heavy build."
The other police officer, suspecting from the description that
respondent might be the seller, left a police photograph of
respondent at the office of Glover, who viewed it two days later
and identified it as the picture of the seller. In a Connecticut
court, respondent was charged with, and convicted of, possession
and sale of heroin, and at his trial, held some eight months after
the crime, the photograph was received in evidence without
objection and Glover testified that there was no doubt that the
person shown in the photograph was respondent and also made a
positive in-court identification without objection. After the
Connecticut Supreme Court affirmed the conviction, respondent filed
a petition for habeas corpus in Federal District Court, alleging
that the admission of the identification testimony at his state
trial deprived him of due process of law in violation of the
Fourteenth Amendment. The District Court dismissed the petition,
but the Court of Appeals reversed, holding that evidence as to the
photograph should have been excluded, regardless of reliability,
because the examination of the single photograph was unnecessary
and suggestive, and that the identification was unreliable in any
event.
Held: The Due Process Clause of the Fourteenth
Amendment does not compel the exclusion of the identification
evidence. Pp.
432 U. S.
109-117.
(a) Reliability is the linchpin in determining the admissibility
of identification testimony for confrontations occurring both prior
to and after
Stovall v. Denno, 388 U.
S. 293, wherein it was held that the determination
depends on the "totality of the circumstances."
Id. at
388 U. S. 302.
The factors to be weighed against the corrupting effect of the
suggestive procedure in assessing reliability are set out in
Neil v. Biggers, 409 U. S. 188, and
include the witness' opportunity to view the criminal
Page 432 U. S. 99
at the time of the crime, the witness' degree of attention, the
accuracy of his prior description of the criminal, the level of
certainty demonstrated at the confrontation, and the time between
the crime and the confrontation. Pp.
432 U. S.
109-114.
(b) Under the totality of the circumstances in this case, there
doe not est "a very substantial likelihood of irreparable
misidentification."
Simmons v. United States, 390 U.
S. 377,
390 U. S. 384.
Glover, no casual observer but a trained police officer, had a
sufficient opportunity to view the suspect, accurately described
him, positively identified respondent's photograph as that of the
suspect, and made the photograph identification only two days after
the crime. Pp.
432 U. S.
114-117.
527 F.2d 363, reversed.
BLACKMUN, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, WHITE, POWELL, REHNQUIST, and STEVENS,
JJ., joined. STEVENS, J., filed a concurring opinion,
post, p.
432 U. S. 117.
MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J.,
joined,
post, p.
432 U. S.
118.
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
This case presents the issue as to whether the Due Process
Clause of the Fourteenth Amendment compels the exclusion, in a
state criminal trial, apart from any consideration of reliability,
of pretrial identification evidence obtained by a police procedure
that was both suggestive and unnecessary. This Court's decisions in
Stovall v. Denno, 388 U. S. 293
(1967), and
Neil v. Biggers, 409 U.
S. 188 (1972), are particularly implicated.
I
Jimmy D. Glover, a full-time trooper of the Connecticut State
Police, in 1970 was assigned to the Narcotics Division in an
undercover capacity. On May 5 of that year, about
Page 432 U. S. 100
7:45 p.m., e.d.t., and while there was still daylight, Glover
and Henry Alton Brown, an informant, went to an apartment building
at 201 Westland, in Hartford, for the purpose of purchasing
narcotics from "Dickie Boy" Cicero, a known narcotics dealer.
Cicero, it was thought, lived on the third floor of that apartment
building. Tr. 45-46, 68. [
Footnote
1] Glover and Brown entered the building, observed by backup
Officers D'Onofrio and Gaffey, and proceeded by stairs to the third
floor. Glover knocked at the door of one of the two apartments
served by the stairway. [
Footnote
2] The area was illuminated by natural light from a window in
the third floor hallway.
Id. at 27-28. The door was opened
12 to 18 inches in response to the knock. Glover observed a man
standing at the door and, behind him, a woman. Brown identified
himself. Glover then asked for "two things" of narcotics.
Id. at 29. The man at the door held out his hand, and
Glover gave him two $10 bills. The door closed. Soon the man
returned and handed Glover two glassine bags. [
Footnote 3] While the door was open, Glover stood
within two feet of the person from whom he made the purchase and
observed his face. Five to seven minutes elapsed from the
Page 432 U. S. 101
time the door first opened until it closed the second time.
Id. at 30-33.
Glover and Brown then left the building. This was about eight
minutes after their arrival. Glover drove to headquarters, where he
described the seller to D'Onofrio and Gaffey. Glover at that time
did not know the identity of the seller.
Id. at 36. He
described him as being
"a colored man, approximately five feet eleven inches tall, dark
complexion, black hair, short Afro style, and having high
cheekbones, and of heavy build. He was wearing at the time blue
pants and a plaid shirt."
Id. at 36-37. D'Onofrio, suspecting from this
description that respondent might be the seller, obtained a
photograph of respondent from the Records Division of the Hartford
Police Department. He left it at Glover's office. D'Onofrio was not
acquainted with respondent personally, but did know him by sight
and had seen him "[s]everal times" prior to May 5.
Id. at
63-65. Glover, when alone, viewed the photograph for the first time
upon his return to headquarters on May 7; he identified the person
shown as the one from whom he had purchased the narcotics.
Id. at 36-38.
The toxicological report on the contents of the glassine bags
revealed the presence of heroin. The report was dated July 16,
1970.
Id. at 75-76.
Respondent was arrested on July 27 while visiting at the
apartment of a Mrs. Ramsey on the third floor of 201 Westland. This
was the apartment at which the narcotics sale had taken place on
May 5. [
Footnote 4]
Respondent was charged, in a two-count information, with
possession and sale of heroin, in violation of Conn.Gen.Stat. (Rev.
of 1958, as amended in 1969), §§ 19-481a and 19-480a
Page 432 U. S. 102
(1977). [
Footnote 5] At his
trial in January, 1971, the photograph from which Glover had
identified respondent was received in evidence without objection on
the part of the defense. Tr. 38. Glover also testified that,
although he had not seen respondent in the eight months that had
elapsed since the sale, "there [was] no doubt whatsoever" in his
mind that the person shown on the photograph was respondent.
Id. at 41-42. Glover also made a positive in-court
identification without objection.
Id. at 37-38.
No explanation was offered by the prosecution for the failure to
utilize a photographic array or to conduct a lineup.
Respondent, who took the stand in his own defense, testified
that, on May 5, the day in question, he had been ill at his Albany
Avenue apartment ("a lot of back pains, muscle spasms . . . a bad
heart . . . high blood pressure . . . neuralgia in my face, and
sinus,"
id. at 106), and that at no time on that
particular day had he been at 201 Westland.
Id. at 106,
113-114. His wife testified that she recalled, after her husband
had refreshed her memory, that he was home all day on May 5.
Id. at 164-165. Doctor Wesley M. Vietzke, an internist and
assistant professor of medicine at the University of Connecticut,
testified that respondent had consulted him on April 15, 1970, and
that he took a medical history from him, heard his complaints about
his back and facial pain, and discovered that he had high blood
pressure.
Id. at 129-131. The physician found respondent,
subjectively, "in great discomfort."
Id. at 135.
Respondent in fact underwent surgery for a herniated disc at L5 and
S1 on August 17.
Id. at 157.
The jury found respondent guilty on both counts of the
information. He received a sentence of not less than six nor
Page 432 U. S. 103
more than nine years. His conviction was affirmed per curiam by
the Supreme Court of Connecticut.
State v. Brathwaite, 164
Conn. 617, 325 A.2d 284 (1973). That court noted the absence of an
objection to Glover's in-court identification and concluded that
respondent "has not shown that substantial injustice resulted from
the admission of this evidence."
Id. at 619, 325 A.2d at
285. Under Connecticut law, substantial injustice must be shown
before a claim of error not made or passed on by the trial court
will be considered on appeal.
Ibid.
Fourteen months later, respondent filed a petition for habeas
corpus in the United States District Court for the District of
Connecticut. He alleged that the admission of the identification
testimony at his state trial deprived him of due process of law to
which he was entitled under the Fourteenth Amendment. The District
Court, by an unreported written opinion based on the court's review
of the state trial transcript, [
Footnote 6] dismissed respondent's petition. On appeal,
the United States Court of Appeals for the Second Circuit reversed,
with instructions to issue the writ unless the State gave notice of
a desire to retry respondent and the new trial occurred within a
reasonable time to be fixed by the District Judge. [
Footnote 7] 527 F.2d 363 (1975).
In brief summary, the court felt that evidence as to the
photograph should have been excluded, regardless of
reliability,
Page 432 U. S. 104
because the examination of the single photograph was unnecessary
and suggestive. And, in the court's view, the evidence was
unreliable in any event. We granted certiorari. 425 U.S. 957
(1976).
II
Stovall v. Denno, supra, decided in 1967, concerned a
petitioner who had been convicted in a New York court of murder. He
was arrested the day following the crime and was taken by the
police to a hospital where the victim's wife, also wounded in the
assault, was a patient. After observing Stovall and hearing him
speak, she identified him as the murderer. She later made an
in-court identification. On federal habeas, Stovall claimed the
identification testimony violated his Fifth, Sixth, and Fourteenth
Amendment rights. The District Court dismissed the petition, and
the Court of Appeals, en banc, affirmed. This Court also affirmed.
On the identification issue, the Court reviewed the practice of
showing a suspect singly for purposes of identification, and the
claim that this was so unnecessarily suggestive and conducive to
irreparable mistaken identification that it constituted a denial of
due process of law. The Court noted that the practice "has been
widely condemned," 388 U.S. at
388 U. S. 302,
but it concluded that "a claimed violation of due process of law in
the conduct of a confrontation depends on the totality of the
circumstances surrounding it."
Ibid. In that case, showing
Stovall to the victim's spouse "was imperative." The Court then
quoted the observations of the Court of Appeals, 355 F.2d 731, 735
(CA2 1966), to the effect that the spouse was the only person who
could possibly exonerate the accused; that the hospital was not far
from the courthouse and jail; that no one knew how long she might
live; that she was not able to visit the jail; and that taking
Stovall to the hospital room was the only feasible procedure, and,
under the circumstances, "
the usual police station line-up . .
. was out of the question.'" 388 U.S. at 388 U. S.
302.
Page 432 U. S.
105
Neil v. Biers, supra, decided in 1972, concerned a
respondent who had been convicted in a Tennessee court of rape, on
evidence consisting in part of the victim's visual and voice
identification of Biggers at a stationhouse showup seven months
after the crime. The victim had been in her assailant's presence
for some time, and had directly observed him indoors and under a
full moon outdoors. She testified that she had "no doubt" that
Biggers was her assailant. She previously had given the police a
description of the assailant. She had made no identification of
others presented at previous showups, lineups, or through
photographs. On federal habeas, the District Court held that the
confrontation was so suggestive as to violate due process. The
Court of Appeals affirmed. This Court reversed on that issue, and
held that the evidence properly had been allowed to go to the jury.
The Court reviewed
Stovall and certain later cases where
it had considered the scope of due process protection against the
admission of evidence derived from suggestive identification
procedures, namely,
Simmons v. United States, 390 U.
S. 377 (1968);
Foster v. California,
394 U. S. 440
(1969); and
Coleman v. Alabama, 399 U. S.
1 (1970). [
Footnote
8] The Court concluded that
Page 432 U. S. 106
general guidelines emerged from these cases "as to the
relationship between suggestiveness and misidentification." The
"admission of evidence of a showup, without more, does not violate
due process." 409 U.S. at.
409 U. S. 198. The Court expressed concern about the
lapse of seven months between the crime and the confrontation, and
observed that this "would be a seriously negative factor in most
cases."
Id. at
409 U. S. 201.
The "central question," however, was
"whether, under the 'totality of the circumstances,' the
identification was reliable even though the confrontation procedure
was suggestive."
Id. at
409 U. S. 199.
Applying that test, the Court found "no substantial likelihood of
misidentification. The evidence was properly allowed to go to the
jury."
Id. at
409 U. S.
201.
Biggers well might be seen to provide an unambiguous
answer to the question before us: the admission of testimony
concerning a suggestive and unnecessary identification procedure
does not violate due process so long as the identification
possesses sufficient aspects of reliability. [
Footnote 9] In one passage,
Page 432 U. S. 107
however, the Court observed that the challenged procedure
occurred pre-
Stovall, and that a strict rule would make
little sense with regard to a confrontation that preceded the
Court's first indication that a suggestive procedure might lead to
the exclusion of evidence.
Id. at
409 U. S. 199.
One perhaps might argue that, by implication, the Court suggested
that a different rule could apply post-
Stovall. The
question before us, then, is simply whether the
Biggers
analysis applies to post-
Stovall confrontations as well to
those pre-
Stovall.
III
In the present case, the District Court observed that the
"sole evidence tying Brathwaite to the possession and sale of
the heroin consisted in his identifications by the police
undercover agent, Jimmy Glover."
App. to Pet. for Cert. 6a. On the constitutional issue, the
court stated that the first inquiry was whether the police used an
impermissibly suggestive procedure in obtaining the out-of-court
identification. If so, the second inquiry is whether, under all the
circumstances, that suggestive procedure gave rise to a substantial
likelihood of irreparable misidentification.
Id. at 9a.
Biggers and
Simmons were cited. The court noted
that, in the Second Circuit, its controlling court, it was clear
that "this type of identification procedure [display of a single
photograph] is impermissibly
Page 432 U. S. 108
suggestive," and turned to the second inquiry. App. to Pet. for
Cert. 9a. The factors
Biggers specified for consideration
were recited and applied. The court concluded that there was no
substantial likelihood of irreparable misidentification. It
referred to the facts: Glover was within two feet of the seller.
The duration of the confrontation was at least a "couple of
minutes." There was natural light from a window or skylight, and
there was adequate light to see clearly in the hall. Glover
"certainly was paying attention to identify the seller."
Id. at 10a. He was a trained police officer who realized
that later he would have to find and arrest the person with whom he
was dealing. He gave a detailed description to D'Onofrio. The
reliability of this description was supported by the fact that it
enabled D'Onofrio to pick out a single photograph that was
thereafter positively identified by Glover. Only two days elapsed
between the crime and the photographic identification. Despite the
fact that another eight months passed before the in-court
identification, Glover had "no doubt" that Brathwaite was the
person who had sold him heroin.
The Court of Appeals confirmed that the exhibition of the single
photograph to Glover was "impermissibly suggestive," 527 F.2d at
366, and felt that, in addition, "it was unnecessarily so."
Id. at 367. There was no emergency and little urgency. The
court said that, prior to the decision in
Biggers, except
in cases of harmless error,
"a conviction secured as the result of admitting an
identification obtained by impermissibly suggestive and unnecessary
measures could not stand."
Ibid. It noted what it felt might be opposing
inferences to be drawn from passages in
Biggers, but
concluded that the case preserved the principle "requiring the
exclusion of identifications resulting from
unnecessarily
suggestive confrontation'" in post-Stovall situations. 527
F.2d at 368. The court also concluded that, for
post-
Stovall identifications,
Biggers had not
changed the existing rule. Thus:
"Evidence of an identification unnecessarily obtained by
impermissibly
Page 432 U. S. 109
suggestive means must be excluded under
Stovall. . . .
No rules less stringent than these can force police administrators
and prosecutors to adopt procedures that will give fair assurance
against the awful risks of misidentification."
527 F.2d at 371. Finally, the court said, even if this
conclusion were wrong, the writ, nevertheless, should issue. It
took judicial notice that, on May 5, 1970, sunset at Hartford was
at 7:53 p.m. It characterized Glover's duty as an undercover agent
as one "to cause arrests to be made," and his description of the
suspect as one that "could have applied to hundreds of Hartford
black males."
Ibid. The in-court identification had
"little meaning," for Brathwaite was at the counsel table. The fact
that respondent was arrested in the very apartment where the sale
was made was subject to a "not implausible" explanation from the
respondent, "although evidently not credited by the jury." And the
court was troubled by "the long and unexplained delay" in the
arrest. It was too great a danger that the respondent was convicted
because he was a man D'Onofrio had previously observed near the
scene, was thought to be a likely offender, and was arrested when
he was known to be in Mrs. Ramsey's apartment, rather than because
Glover "really remembered him as the seller."
Id. at
371-372.
IV
Petitioner, at the outset, acknowledges that "the procedure in
the instant case was suggestive [because only one photograph was
used] and unnecessary" [because there was no emergency or exigent
circumstance]. Brief for Petitioner 10; Tr. of Oral Arg. 7. The
respondent, in agreement with the Court of Appeals, proposes a
per se rule of exclusion that he claims is dictated by the
demands of the Fourteenth Amendment's guarantee of due process. He
rightly observes that this is the first case in which this Court
has had occasion to rule upon strictly post-
Stovall
out-of-court identification evidence of the challenged kind.
Page 432 U. S. 110
Since the decision in
Biggers, the Courts of Appeals
appear to have developed at least two approaches to such evidence.
See Pulaski,
Neil v. Biggers: The Supreme Court
Dismantles the
Wade Trilogy's Due Process Protection, 26
Stan.L.Rev. 1097, 1111-1114 (1974). The first, or
per se
approach, employed by the Second Circuit in the present case,
focuses on the procedures employed and requires exclusion of the
out-of-court identification evidence, without regard to
reliability, whenever it has been obtained through unnecessarily
suggested confrontation procedures. [
Footnote 10] The justifications advanced are the
elimination of evidence of uncertain reliability, deterrence of the
police and prosecutors, and the stated "fair assurance against the
awful risks of misidentification." 527 F.2d at 371.
See Smith
v. Coiner, 473 F.2d 877, 882 (CA4),
cert. denied sub nom.
Wallace v. Smith, 414 U.S. 1115 (1973).
The second, or more lenient, approach is one that continues to
rely on the totality of the circumstances. It permits the admission
of the confrontation evidence if, despite the suggestive aspect,
the out-of-court identification possesses certain features of
reliability. Its adherents feel that the
per se approach
is not mandated by the Due Process Clause of the Fourteenth
Amendment. This second approach, in contrast to the other, is
ad hoc, and serves to limit the societal costs imposed by
a sanction that excludes relevant evidence from consideration and
evaluation by the trier of fact.
See United States ex rel.
Kirby v. Sturges, 510 F.2d 397, 407-408 (CA7) (opinion by
Judge, now MR. JUSTICE, STEVENS),
cert. denied, 421 U.S.
1016 (1975);
Stanley v. Cox, 486 F.2d 48
Page 432 U. S. 111
(CA4 1973),
cert. denied sub nom. Stanley v. Slayton,
416 U.S. 958 (1974). [
Footnote
11]
MR. JUSTICE STEVENS, in writing for the Seventh Circuit in
Kirby, supra, observed:
"There is surprising unanimity among scholars in regarding such
a rule [the
per se approach] as essential to avoid serious
risk of miscarriage of justice."
510 F.2d at 405. He pointed out that well known federal judges
have taken the position that
"evidence of, or derived from, a showup identification should be
inadmissible unless the prosecutor can justify his failure to use a
more reliable identification procedure."
Id. at 406. Indeed, the ALI Model Code of
Pre-Arraignment Procedure §§ 160.1 and 160.2 (1975) (hereafter
Model Code) frowns upon the use of a showup or the display of only
a single photograph.
The respondent here stresses the same theme and the need for
deterrence of improper identification practice, a factor he regards
as preeminent. Photographic identification, it is said, continues
to be needlessly employed. He notes that the legislative regulation
"the Court had hoped [
United States v.] Wade[,
388 U. S. 218,
388 U. S. 239
(1967),] would engender," Brief for Respondent 15, has not been
forthcoming. He argues that a totality rule cannot be expected to
have a significant deterrent impact; only a strict rule of
exclusion will have direct and immediate impact on law enforcement
agents. Identification evidence is so convincing to the jury that
sweeping exclusionary rules are required. Fairness of the trial is
threatened by suggestive confrontation evidence, and thus, it is
said, an exclusionary rule has an established constitutional
predicate.
There are, of course, several interests to be considered and
taken into account. The driving force behind
United States v.
Wade, 388 U. S. 218
(1967),
Gilbert v.
California, 388
Page 432 U. S. 112
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. Thus,
Wade and its companion cases reflect the concern that the
jury not hear eyewitness testimony unless that evidence has aspects
of reliability. It must be observed that both approaches before us
are responsive to this concern. The
per se rule, however,
goes too far, since its application automatically and peremptorily,
and without consideration of alleviating factors, keeps evidence
from the jury that is reliable and relevant.
The second factor is deterrence. Although the
per se
approach has the more significant deterrent effect, the totality
approach also has an influence on police behavior. The police will
guard against unnecessarily suggestive procedures under the
totality rule, as well as the
per se one, for fear that
their actions will lead to the exclusion of identifications as
unreliable. [
Footnote
12]
The third factor is the effect on the administration of justice.
Here, the
per se approach suffers serious drawbacks. Since
it denies the trier reliable evidence, it may result, on occasion,
in the guilty going free. Also, because of its rigidity, the
per se approach may make error by the trial judge more
likely than the totality approach. And in those cases in which the
admission of identification evidence is error under the
per
se approach but not under the totality approach --
Page 432 U. S. 113
cases in which the identification is reliable despite an
unnecessarily suggestive identification procedure -- reversal is a
Draconian sanction. [
Footnote
13] Certainly, inflexible rules of exclusion that may
frustrate, rather than promote, justice have not been viewed
recently by this Court with unlimited enthusiasm.
See, for
example, the several opinions in
Brewer v. Williams,
430 U. S. 387
(1977).
See also United States v. Janis, 428 U.
S. 433 (1976).
It is true, as has been noted, that the Court in
Biggers referred to the pre-
Stovall character of
the confrontation in that case. 409 U.S. at
409 U. S. 199.
But that observation was only one factor in the judgmental process.
It does not translate into a holding that post-
Stovall
confrontation evidence automatically is to be excluded.
The standard, after all, is that of fairness as required by the
Due Process Clause of the Fourteenth Amendment.
See United
States v. Lovasco, 431 U. S. 783,
431 U. S. 790
(1977);
Rochin v. California, 342 U.
S. 165,
342 U. S.
170-172 (1952).
Stovall, with its reference to
"the totality of the circumstances," 388 U.S. at
388 U. S.
302,.and
Biggers, with its continuing stress on
the same totality, 409 U.S. at
409 U. S. 199,
did not, singly or together, establish a strict exclusionary rule
or new standard of due process Judge Leventhal, although speaking
pre-
Biggers and of a pre-
Wade situation,
correctly has described
Stovall as protecting an
evidentiary interest and, at the same time, as recognizing
the limited extent of that interest in our adversary system.
[
Footnote 14]
Page 432 U. S. 114
We therefore conclude that reliability is the linchpin in
determining the admissibility of identification testimony for both
pre- and post-
Stovall confrontations. The factors to be
considered are set out in
Biggers. 409 U.S. at
409 U. S.
199-200. These include the opportunity of the witness to
view the criminal at the time of the crime, the witness' degree of
attention, the accuracy of his prior description of the criminal,
the level of certainty demonstrated at the confrontation, and the
time between the crime and the confrontation. Against these factors
is to be weighed the corrupting effect of the suggestive
identification itself.
V
We turn, then, to the facts of this case and apply the
analysis:
1. The opportunity to view. Glover testified that, for two to
three minutes, he stood at the apartment door, within two feet of
the respondent. The door opened twice, and each time the man stood
at the door. The moments passed, the conversation took place, and
payment was made. Glover looked directly at his vendor. It was near
sunset, to be sure, but the sun had not yet set, so it was not dark
or even dusk or twilight. Natural light from outside entered the
hallway through a window. There was natural light, as well, from
inside the apartment.
Page 432 U. S. 115
2. The degree of attention. Glover was not a casual or passing
observer, as is so often the case with eyewitness identification.
Trooper Glover was a trained police officer on duty -- and
specialized and dangerous duty -- when he called at the third floor
of 201 Westland in Hartford on May 5, 1970. Glover himself was a
Negro, and unlikely to perceive only general features of "hundreds
of Hartford black males," as the Court of Appeals stated. 527 F.2d
at 371. It is true that Glover's duty was that of ferreting out
narcotics offenders, and that he would be expected in his work to
produce results. But it is also true that, as a specially trained,
assigned, and experienced officer, he could be expected to pay
scrupulous attention to detail, for he knew that subsequently he
would have to find and arrest his vendor. In addition, he knew that
his claimed observations would be subject later to close scrutiny
and examination at any trial.
3. The accuracy of the description. Glover's description was
given to D'Onofrio within minutes after the transaction. It
included the vendor's race, his height, his build, the color and
style of his hair, and the high cheekbone facial feature. It also
included clothing the vendor wore. No claim has been made that
respondent did not possess the physical characteristics so
described. D'Onofrio reacted positively at once. Two days later,
when Glover was alone, he viewed the photograph D'Onofrio produced
and identified its subject as the narcotics seller.
4. The witness' level of certainty. There is no dispute that the
photograph in question was that of respondent. Glover, in response
to a question whether the photograph was that of the person from
whom he made the purchase, testified: "There is no question
whatsoever." Tr. 38. This positive assurance was repeated.
Id. at 41-42.
5. The time between the crime and the confrontation. Glover's
description of his vendor was given to D'Onofrio
Page 432 U. S. 116
within minutes of the crime. The photographic identification
took place only two days later. We do not have here the passage of
weeks or months between the crime and the viewing of the
photograph.
These indicators of Glover's ability to make an accurate
identification are hardly outweighed by the corrupting effect of
the challenged identification itself. Although identifications
arising from single-photograph displays may be viewed in general
with suspicion,
see Simmons v. United States, 390 U.S. at
390 U. S. 383,
we find in the instant case little pressure on the witness to
acquiesce in the suggestion that such a display entails. D'Onofrio
had left the photograph at Glover's office, and was not present
when Glover first viewed it two days after the event. There thus
was little urgency, and Glover could view the photograph at his
leisure. And since Glover examined the photograph alone, there was
no coercive pressure to make an identification arising from the
presence of another. The identification was made in circumstances
allowing care and reflection.
Although it plays no part in our analysis, all this assurance as
to the reliability of the identification is hardly undermined by
the facts that respondent was arrested in the very apartment where
the sale had taken place, and that he acknowledged his frequent
visits to that apartment. [
Footnote 15]
Surely, we cannot say that, under all the circumstances of this
case, there is "a very substantial likelihood of irreparable
misidentification."
Id. at
390 U. S. 384.
Short of that point, such evidence is for the jury to weigh. We are
content to rely upon the good sense and judgment of American
juries, for evidence with some element of untrustworthiness is
customary grist for the jury mill. Juries are not so susceptible
that they cannot measure intelligently the weight of identification
testimony that has some questionable feature.
Page 432 U. S. 117
Of course, it would have been better had D'Onofrio presented
Glover with a photographic array including "so far as practicable .
. . a reasonable number of persons similar to any person then
suspected whose likeness is included in the array." Model Code §
160.2(2). The use of that procedure would have enhanced the force
of the identification at trial, and would have avoided the risk
that the evidence would be excluded as unreliable. But we are not
disposed to view D'Onofrio's failure as one of constitutional
dimension to be enforced by a rigorous and unbending exclusionary
rule. The defect, if there be one, goes to weight, and not to
substance. [
Footnote 16]
We conclude that the criteria laid down in
Biggers are
to be applied in determining the admissibility of evidence offered
by the prosecution concerning a post-
Stovall
identification, and that those criteria are satisfactorily met and
complied with here.
The judgment of the Court of Appeals is reversed.
It is so ordered.
[
Footnote 1]
The references are to the transcript of the trial in the
Superior Court of Hartford County, Conn. The United States District
Court, on federal habeas, pursuant to agreement of the parties, Tr.
of Oral Arg. 23, conducted no evidentiary hearing.
[
Footnote 2]
It appears that the door on which Glover knocked may not have
been that of the Cicero apartment. Petitioner concedes, in any
event, that the transaction effected "was with some other person
than had been intended."
Id. at 4.
[
Footnote 3]
This was Glover's testimony. Brown later was called as a witness
for the prosecution. He testified on direct examination that, due
to his then use of heroin, he had no clear recollection of the
details of the incident. Tr. 81-82. On cross-examination, as in an
interview with defense counsel the preceding day, he said that it
was a woman who opened the door, received the money, and thereafter
produced the narcotics.
Id. at 84, 86-87. On redirect, he
acknowledged that he was using heroin daily at the time, that he
had had some that day, and that there was "an inability to recall
and remember events."
Id. at 88-89.
[
Footnote 4]
Respondent testified: "Lots of times I have been there before in
that building." He also testified that Mrs. Ramsey was a friend of
his wife, that her apartment was the only one in the building he
ever visited, and that he and his family, consisting of his wife
and five children, did not live there, but at 453 Albany Avenue,
Hartford.
Id. at 111-113.
[
Footnote 5]
These statutes have since been amended in ways that do not
affect the present litigation.
See 1971 Conn.Pub.Acts 812,
§ 1; 1972 Conn.Pub.Acts 278, §§ 25 and 26; Conn.Pub.Acts 73-137, §
10; Conn.Pub.Acts 7332, §§ 1 and 3; Conn.Pub.Acts 75-567, § 65.
[
Footnote 6]
Neither party submitted a request to the District Court for an
independent factual hearing on respondent's claims.
See
n 1,
supra.
[
Footnote 7]
Although no objection was made in the state trial to the
admission of the identification testimony and the photograph, the
issue of their propriety as evidence was raised on the appeal to
the Supreme Court of Connecticut. Petitioner has asserted no claims
related to the failure of the respondent either to exhaust state
remedies or to make contemporaneous objections. The District Court
and the Court of Appeals, each for a somewhat different reason,
App. to Pet. for Cert. 7a-8a; 527 F.2d at 366, concluded that the
merits were properly before them. We are not inclined now to rule
otherwise.
[
Footnote 8]
Simmons involved photographs, mostly group ones, shown
to bank teller victims who made in-court identifications. The Court
discussed the "chance of misidentification," 390 U.S. at
390 U. S. 383;
declined to prohibit the procedure "either in the exercise of our
supervisory power or, still less, as a matter of constitutional
requirement,"
id. at
390 U. S. 384;
and held that each case must be considered on its facts and that a
conviction would be set aside only if the identification procedure
"was so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification."
Ibid. The out-of-court identification was not offered. Mr.
Justice Black would have denied Simmons' due process claim as
frivolous.
Id. at
390 U. S. 395-396.
Foster concerned repeated confrontations between a
suspect and the manager of an office that had been robbed. At a
second lineup, but not at the first and not at a personal
one-to-one confrontation, the manager identified the suspect. At
trial, he testified as to this and made an in-court identification.
The Court reaffirmed the
Stovall standard and then
concluded that the repeated confrontations were so suggestive as to
violate due process. The case was remanded for the state courts to
consider the question of harmless error.
In
Coleman, a plurality of the Court was of the view
that the trial court did not err when it found that the victim's
in-court identifications did not stem from a lineup procedure so
impermissibly suggestive as to give rise to a substantial
likelihood of misidentification. 399 U.S. at
399 U. S. 6.
[
Footnote 9]
MR. JUSTICE MARSHALL argues in dissent that our cases have
"established two different due process tests for two very different
situations."
Post at
432 U. S. 122.
Pretrial identifications are to be covered by
Stovall,
which is said to require exclusion of evidence concerning
unnecessarily suggestive pretrial identifications without regard to
reliability. In-court identifications, on the other hand, are to be
governed by
Simmons, and admissibility turns on
reliability. The Court's cases are sorted into one category or the
other.
Biggers, which clearly adopts the reliability of
the identification as the guiding factor in the admissibility of
both pretrial and in-court identifications, is condemned for mixing
the two lines and for adopting a uniform rule.
Although it must be acknowledged that our cases are not uniform
in their emphasis, they hardly suggest the formal structure the
dissent would impose on them. If our cases truly established two
different rules, one might expect at some point at least passing
reference to the fact. There is none. And if
Biggers
departed so grievously from the past cases, it is surprising that
there was not at least some mention of the point in MR. JUSTICE
BRENNAN's dissent. In fact, the cases are not so readily sorted as
the dissent suggests. Although
Foster involved both in
court and out-of-court identifications, the Court seemed to apply
only a single standard for both. And although
Coleman
involved only an in-court identification, the plurality cited
Stovall for the guiding rule that the claim was to be
assessed on the "totality of the surrounding circumstances." 399
U.S. at
399 U. S. 4. Thus,
Biggers is not properly seen as a departure from the past
cases, but as a synthesis of them.
[
Footnote 10]
Although the
per se approach demands the exclusion of
testimony concerning unnecessarily suggestive identifications, it
does permit the admission of testimony concerning a subsequent
identification, including an in-court identification, if the
subsequent identification is determined to be reliable. 527 F.2d at
367. The totality approach, in contrast, is simpler: if the
challenged identification is reliable, then testimony as to it and
any identification in its wake is admissible.
[
Footnote 11]
The Fourth Circuit's then very recent decision in
Smith v.
Coiner, 473 F.2d 877 (1973), was described as one applying the
second, or totality, test. 486 F.2d at 55.
[
Footnote 12]
The interest in obtaining convictions of the guilty also urges
the police to adopt procedures that show the resulting
identification to be accurate. Suggestive procedures often will
vitiate the weight of the evidence at trial, and the jury may tend
to discount such evidence.
Cf. McGowan, Constitutional
Interpretation and Criminal Identification, 12 Wm. & Mary
L.Rev. 235, 241 (1970).
[
Footnote 13]
Unlike a warrantless search, a suggestive preindictment
identification procedure does not, in itself, intrude upon a
constitutionally protected interest. Thus, considerations urging
the exclusion of evidence deriving from a constitutional violation
do not bear on the instant problem.
See United States ex rel.
Kirby v. Sturges, 510 F.2d 397, 406 (CA7 1975).
[
Footnote 14]
"In essence what the
Stovall due process right protects
is an evidentiary interest. . . ."
"It is part of our adversary system that we accept at trial much
evidence that has strong elements of untrustworthiness -- an
obvious example being the testimony of witnesses with a bias. While
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."
Clemons v. United States, 133 U.S.App.D.C. 27, 48, 408
F.2d 1230, 1251 (1968) (concurring opinion) (footnote omitted),
cert. denied, 394 U.S. 964 (1969).
[
Footnote 15]
Mrs. Ramsey was not a witness at the trial.
[
Footnote 16]
We are not troubled, as was the Court of Appeals, by the "long
and unexplained delay" in respondent's arrest. 527 F.2d at 372.
That arrest took place on July 27. The toxicological report
verifying the substance sold as heroin had issued only 11 days
earlier, on July 16. Those 11 days after verification of the
contents of the glassine bags do not constitute, for us, a "long"
period. And with the positive toxicological report having been
received within a fortnight, the arrest's delay perhaps is not
"unexplained."
MR JUSTICE STEVENS, concurring.
While I join the Court's opinion, I would emphasize two
points.
First, as I indicated in my opinion in
United States ex rel.
Kirby v. Sturges, 510 F.2d 397, 405-406 (CA7 1975), the
arguments in favor of fashioning new rules to minimize the danger
of convicting the innocent on the basis of unreliable eyewitness
testimony carry substantial force. Nevertheless,
Page 432 U. S. 118
for the reasons stated in that opinion, as well as those stated
by the Court today, I am persuaded that this rulemaking function
can be performed "more effectively by the legislative process than
by a somewhat clumsy judicial fiat,"
id. at 408, and that
the Federal Constitution does not foreclose experimentation by the
States in the development of such rules.
Second, in evaluating the admissibility of particular
identification testimony it is sometimes difficult to put other
evidence of guilt entirely to one side.
* MR. JUSTICE
BLACKMUN's opinion for the Court carefully avoids this pitfall and
correctly relies only on appropriate indicia of the reliability of
the identification itself. Although I consider the factual question
in this case extremely close, I am persuaded that the Court has
resolved it properly.
* In this case, for example, the fact that the defendant was a
regular visitor to the apartment where the drug transaction
occurred tends to confirm his guilt. In the
Kirby case,
where the conviction was for robbery, the fact that papers from the
victim's wallet were found in the possession of the defendant made
it difficult to question the reliability of the identification.
These facts should not, however, be considered to support the
admissibility of eyewitness testimony when applying the criteria
identified in
Neil v. Biggers, 409 U.
S. 188. Properly analyzed, however, such facts would be
relevant to a question whether error, if any, in admitting
identification testimony was harmless.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins,
dissenting.
Today's decision can come as no surprise to those who have been
watching the Court dismantle the protections against mistaken
eyewitness testimony erected a decade ago in
United States v.
Wade, 388 U. S. 218
(1967);
Gilbert v. California, 388 U.
S. 263 (1967); and
Stovall v. Denno,
388 U. S. 293
(1967). But it is still distressing to see the Court virtually
ignore the teaching of experience embodied in those decisions and
blindly uphold the conviction of a defendant who may well be
innocent.
Page 432 U. S. 119
I
The magnitude of the Court's error can be seen by analyzing the
cases in the
Wade trilogy and the decisions following it.
The foundation of the
Wade trilogy was the Court's
recognition of the "high incidence of miscarriage of justice"
resulting from the admission of mistaken eyewitness identification
evidence at criminal trials.
United States v. Wade, supra
at
388 U. S. 228.
Relying on numerous studies made over many years by such scholars
as Professor Wigmore and Mr. Justice Frankfurter, the Court
concluded that " [t] he vagaries of eyewitness identification are
well known; the annals of criminal law are rife with instances of
mistaken identification."
Ibid. It is, of course,
impossible to control one source of such errors -- the faulty
perceptions and unreliable memories of witnesses -- except through
vigorously contested trials conducted by diligent counsel and
judges. The Court in the
Wade cases acted, however, to
minimize the more preventable threat posed to accurate
identification by "the degree of suggestion inherent in the manner
in which the prosecution presents the suspect to witnesses for
pretrial identification."
Ibid.
The Court did so in
Wade and
Gilbert v.
California by prohibiting the admission at trial of evidence
of pretrial confrontations at which an accused was not represented
by counsel. Further protection was afforded by holding that an
in-court identification following an uncounseled lineup was
allowable only if the prosecution could clearly and convincingly
demonstrate that it was not tainted by the constitutional
violation. Only in this way, the Court held, could confrontations
fraught with the danger of misidentification be made fairer, and
could Sixth Amendment rights to assistance of counsel and
confrontation of witnesses at trial be effectively preserved. The
crux of the
Wade decisions, however, was the unusual
threat to the truth-seeking process posed by the frequent
untrustworthiness of eyewitness identification
Page 432 U. S. 120
testimony. This, combined with the fact that juries
unfortunately are often unduly receptive to such evidence,
[
Footnote 2/1] is the fundamental
fact of Judicial experience ignored by the Court today.
Stovall v. Denno, while holding that the
Wade
prophylactic rules were not retroactive, was decided at the same
time and reflects the same concerns about the reliability of
identification testimony.
Stovall recognized that,
regardless of Sixth Amendment principles, "the conduct of a
confrontation" may be "so unnecessarily suggestive and conducive to
irreparable mistaken identification" as to deny due process of law.
388 U.S. at
388 U. S.
301-302. The pretrial confrontation in
Stovall
was plainly suggestive, [
Footnote
2/2] and evidence of it was introduced at trial along with the
witness' in-court identification. The Court ruled that there had
been no violation of due process, however, because the unusual
necessity for the procedure [
Footnote
2/3] outweighed the danger of suggestion.
Stovall thus established a due process right of
criminal suspects to be free from confrontations that, under all
the circumstances, are unnecessarily suggestive. The right was
enforceable by exclusion at trial of evidence of the
constitutionally invalid identification. Comparison with
Wade and
Gilbert confirms this interpretation.
Where their Sixth
Page 432 U. S. 121
Amendment holding did not apply,
Stovall found an
analogous Fourteenth Amendment right to a lineup conducted in a
fundamentally fair manner. This interpretation is reinforced by the
Court's statement that "a claimed violation of due process of law
in the conduct of a confrontation depends on the totality
of the circumstances surrounding it." 388 U.S. at
388 U. S. 302
(emphasis added). Significantly, several years later,
Stovall was viewed in precisely the same way, even as the
Court limited
Wade and
Gilbert to post-indictment
confrontations:
"The Due Process Clause . . .
forbids a lineup that is
unnecessarily suggestive and conducive to irreparable mistaken
identification.
Stovall v. Denno, 388 U. S.
293;
Foster v. California, 394 U. S.
440."
Kirby v. Illinois, 406 U. S. 682,
406 U. S. 691
(1972) (emphasis added). [
Footnote
2/4]
The development of due process protections against mistaken
identification evidence, begun in
Stovall, was continued
in
Simmons v. United States, 390 U.
S. 377 (1968). There, the Court developed a different
rule to deal with the admission of in-court identification
testimony that the accused claimed had been fatally tainted by a
previous suggestive confrontation. In
Simmons, the
exclusionary effect of
Stovall had already been
accomplished, since the prosecution made no use of the suggestive
confrontation.
Simmons, therefore, did not deal with the
constitutionality of the pretrial identification procedure. The
only question was the impact of the
Page 432 U. S. 122
Due Process Clause on an in-court identification that was not
itself unnecessarily suggestive.
Simmons held that due
process was violated by the later identification if the pretrial
procedure had been "so impermissibly suggestive as to give rise to
a very substantial likelihood of irreparable misidentification."
390 U.S. at
390 U. S. 384.
This test focused, not on the necessity for the challenged pretrial
procedure, but on the degree of suggestiveness that it entailed. In
applying this test, the Court understandably considered the
circumstances surrounding the witnesses' initial opportunity to
view the crime. Finding that any suggestion in the pretrial
confrontation had not affected the fairness of the in-court
identification,
Simmons rejected petitioner's due process
attack on his conviction.
Again, comparison with the
Wade cases is instructive.
The inquiry mandated by
Simmons is similar to the
independent source test used in
Wade where an in-court
identification is sought following an uncounseled lineup. In both
cases, the issue is whether the witness is identifying the
defendant solely on the basis of his memory of events at the time
of the crime, or whether he is merely remembering the person he
picked out in a pretrial procedure. Accordingly, in both
situations, the relevant inquiry includes factors bearing on the
accuracy of the witness' identification, including his opportunity
to view the crime.
Thus,
Stovall and
Simmons established two
different due process tests for two very different situations.
Where the prosecution sought to use evidence of a questionable
pretrial identification,
Stovall required its exclusion,
because due process had been violated by the confrontation, unless
the necessity for the unduly suggestive procedure outweighed its
potential for generating an irreparably mistaken identification.
The
Simmons test, on the other hand, was directed to
ascertaining due process violations in the introduction of in-court
identification testimony that the defendant claimed was tainted by
pretrial procedures. In the latter situation, a
Page 432 U. S. 123
court could consider the reliability of the identification under
all the circumstances. [
Footnote
2/5]
This distinction between
Stovall and
Simmons
was preserved in two succeeding cases.
Foster v.
California, 394 U. S. 440
(1969), like
Stovall, involved both unduly suggestive
pretrial procedures, evidence of which was introduced at trial, and
a tainted in-court identification. Accordingly,
Foster
applied the
Stovall test, 394 U.S. at
394 U. S. 442,
and held that the police "
procedure so undermined the
reliability of the eyewitness identification as to violate due
process."
Id. at 443 (emphasis added). In contrast, in
Coleman v. Alabama, 399 U. S. 1 (1970),
where the witness' pretrial identification was not used to bolster
his in-court identification, the plurality opinion applied the test
enunciated in
Simmons. It concluded that an in-court
identification did not violate due process because it did not stem
from an allegedly suggestive lineup.
The Court inexplicably seemed to erase the distinction between
Stovall and
Simmons situations in
Neil v.
Biggers, 409 U. S. 188
(1972). In
Biggers, there was a pretrial confrontation
that was clearly both suggestive and unnecessary. [
Footnote 2/6] Evidence of this, together with an
in-court identification, was admitted at trial. Biggers was, in
short, a case plainly cast in the
Stovall mold. Yet the
Court, without explanation or apparent recognition of the
distinction, applied the
Simmons
Page 432 U. S. 124
test. The Court stated:
"[T]he primary evil to be avoided is 'a very substantial
likelihood of irreparable misidentification.'
Simmons v. United
States, 390 U.S. at
390 U. S. 384. . . . It is
the likelihood of misidentification which violates a defendant's
right to due process. . . ."
409 U.S. at
409 U. S. 198.
While this statement accurately describes the lesson of Simmons, it
plainly ignores the teaching of
Stovall and
Foster that an unnecessarily suggestive pretrial
confrontation itself violates due process.
But the Court did not simply disregard the due process analysis
of
Stovall. It went on to take the
Simmons
standard for assessing the constitutionality of an in-court
identification -- "
a very substantial likelihood of irreparable
misidentification'" -- and transform it into the "standard for the
admissibility of testimony concerning [an] out-of-court
identification." 409 U.S. at 409 U. S. 198.
It did so by deleting the word "irreparable" from the
Simmons formulation. This metamorphosis could be
accomplished, however, only by ignoring the fact that
Stovall, fortified only months earlier by Kirby v.
Illinois, see supra at 432 U. S. 121,
had established a test for precisely the same situation that
focused on the need for the suggestive procedure. It is not
surprising that commentators almost unanimously mourned the demise
of Stovall in the Biggers decision. [Footnote 2/7]
II
Apparently, the Court does not consider
Biggers
controlling in this case. I entirely agree, since I believe that
Biggers
Page 432 U. S. 125
was wrongly decided. The Court, however, concludes that
Biggers is distinguishable because it, like the
identification decisions that preceded it, involved a
pre-
Stovall confrontation, and because a paragraph in
Biggers itself, 409 U.S. at
409 U. S.
198-199, seems to distinguish between pre- and
post-
Stovall confrontations. Accordingly, in determining
the admissibility of the post-
Stovall identification in
this case, the Court considers two alternatives, a
per se
exclusionary rule and a "totality of the circumstances" approach.
Ante at
432 U. S.
110-111. The Court weighs three factors in deciding that
the totality approach, which is essentially the test used in
Biggers, should be applied.
Ante at
432 U. S.
111-113. In my view, the Court wrongly evaluates the
impact of these factors.
First, the Court acknowledges that one of the factors,
deterrence of police use of unnecessarily suggestive identification
procedures, favors the
per se rule. Indeed, it does so
heavily, for such a rule would make it unquestionably clear to the
police they must never use a suggestive procedure when a fairer
alternative is available. I have no doubt that conduct would
quickly conform to the rule.
Second, the Court gives passing consideration to the dangers of
eyewitness identification recognized in the
Wade trilogy.
It concludes, however, that the grave risk of error does not
justify adoption of the
per se approach because that would
too often result in exclusion of relevant evidence. In my view,
this conclusion totally ignores the lessons of
Wade. The
dangers of mistaken identification are, as
Stovall held,
simply too great to permit unnecessarily suggestive
identifications. Neither
Biggers nor the Court's opinion
today points to any contrary empirical evidence. Studies since
Wade have only reinforced the validity of its assessment
of the dangers of identification testimony. [
Footnote 2/8] While the Court is "content to
Page 432 U. S. 126
rely on the good sense and judgment of American juries,"
ante at
432 U. S. 116,
the impetus for
Stovall and
Wade was repeated
miscarriages of justice resulting from juries' willingness to
credit inaccurate eyewitness testimony.
Finally, the Court errs in its assessment of the relative impact
of the two approaches on the administration of justice. The Court
relies most heavily on this factor, finding that "reversal is a
Draconian sanction" in cases where the identification is reliable
despite an unnecessarily suggestive procedure used to obtain it.
Relying on little more than a strong distaste for "inflexible rules
of exclusion," the Court rejects the
per se test.
Ante at
432 U. S. 113.
In so doing, the Court disregards two significant distinctions
between the
per se rule advocated in this case and the
exclusionary remedies for certain other constitutional
violations.
First, the
per se rule here is not "inflexible." Where
evidence is suppressed, for example, as the fruit of an unlawful
search, it may well be forever lost to the prosecution.
Identification evidence, however, can, by its very nature, be
readily and effectively reproduced. The in-court identification,
permitted under
Wade and
Simmons if it has a
source independent of an uncounseled or suggestive procedure, is
one example. Similarly, when a prosecuting attorney learns that
there has been a suggestive confrontation, he can easily arrange
another
Page 432 U. S. 127
lineup conducted under scrupulously fair conditions. Since the
same factors are evaluated in applying both the Court's totality
test and the
Wade-Simmons independent source inquiry, any
identification which is "reliable" under the Court's test will
support admission of evidence concerning such a fairly conducted
lineup. The evidence of an additional, properly conducted
confrontation will be more persuasive to a jury, thereby increasing
the chance of a justified conviction where a reliable
identification was tainted by a suggestive confrontation. At the
same time, however, the effect of an unnecessarily suggestive
identification -- which has no value whatsoever in the law
enforcement process -- will be completely eliminated.
Second, other exclusionary rules have been criticized for
preventing jury consideration of relevant and usually reliable
evidence in order to serve interests unrelated to guilt or
innocence, such as discouraging illegal searches or denial of
counsel. Suggestively obtained eyewitness testimony is excluded, in
contrast, precisely because of its unreliability and concomitant
irrelevance. Its exclusion both protects the integrity of the
truth-seeking function of the trial and discourages police use of
needlessly inaccurate and ineffective investigatory methods.
Indeed, impermissibly suggestive identifications are not merely
worthless law enforcement tools. They pose a grave threat to
society at large in a more direct way than most governmental
disobedience of the law,
see Olmstead v. United States,
277 U. S. 438,
277 U. S. 471,
277 U. S. 485
(1928) (Brandeis, J., dissenting). For if the police and the public
erroneously conclude, on the basis of an unnecessarily suggestive
confrontation, that the right man has been caught and convicted,
the real outlaw must still remain at large. Law enforcement has
failed in its primary function and has left society unprotected
from the depredations of an active criminal.
Page 432 U. S. 128
For these reasons, I conclude that adoption of the
per
se rule would enhance, rather than detract from, the effective
administration of justice. In my view, the Court's totality test
will allow seriously unreliable and misleading evidence to be put
before juries. Equally important, it will allow dangerous criminals
to remain on the streets while citizens assume that police action
has given them protection. According to my calculus, all three of
the factors upon which the Court relies point to acceptance of the
per se approach.
Even more disturbing than the Court's reliance on the totality
test, however, is the analysis it uses, which suggests a
reinterpretation of the concept of due process of law in criminal
cases. The decision suggests that due process violations in
identification procedures may not be measured by whether the
government employed procedures violating standards of fundamental
fairness. By relying on the probable accuracy of a challenged
identification, instead of the necessity for its use, the Court
seems to be ascertaining whether the defendant was probably guilty.
Until today, I had thought that "Equal justice under law" meant
that the existence of constitutional violations did not depend on
the race, sex, religion, nationality, or likely guilt of the
accused. The Due Process Clause requires adherence to the same high
standard of fundamental fairness in dealing with every criminal
defendant, whatever his personal characteristics and irrespective
of the strength of the State's case against him. Strong evidence
that the defendant is guilty should be relevant only to the
determination whether an error of constitutional magnitude was
nevertheless harmless beyond a reasonable doubt.
See Chapman v.
California, 386 U. S. 18
(1967). By importing the question of guilt into the initial
determination of whether there was a constitutional violation, the
apparent effect of the Court's decision is to undermine the
protection afforded by the Due Process Clause. "It is therefore
important to note that the state courts remain free, in
interpreting state constitutions, to
Page 432 U. S. 129
guard against the evil clearly identified by this case."
Oregon v. Mathiason, 429 U. S. 492,
429 U. S. 499
(1977) (MARSHALL, J., dissenting). [
Footnote 2/9]
III
Despite my strong disagreement with the Court over the proper
standards to be applied in this case, I am pleased that its
application of the totality test does recognize the continuing
vitality of
Stovall. In assessing the reliability of the
identification, the Court mandates weighing "the corrupting effect
of the suggestive identification itself" against the "indicators of
[a witness'] ability to make an accurate identification."
Ante at
432 U. S. 114,
432 U. S. 116.
The Court holds, as
Neil v. Biggers failed to, that a due
process identification inquiry must take account of the
suggestiveness of a confrontation and the likelihood that it led to
misidentification, as recognized in
Stovall and
Wade. Thus, even if a witness did have an otherwise
adequate opportunity to view a criminal, the later use of a highly
suggestive identification procedure can render his testimony
inadmissible. Indeed, it is my view that, assuming applicability of
the totality test enunciated by the Court, the facts of the present
case require that result.
I consider first the opportunity that Officer Glover had to view
the suspect. Careful review of the record shows that he could see
the heroin seller only for the time it took to speak three
sentences of four or five short words, to hand over some money, Tr.
2-30, and later after the door reopened, to receive the drugs in
return,
id. at 30, 31-32. The entire face-to-face
transaction could have taken as little as 15 or 20 seconds. But
during this time, Glover's attention was not focused exclusively on
the seller's face. He observed that the door
Page 432 U. S. 130
was opened 12 to 18 inches,
id. at 29, that there was a
window in the room behind the door,
id. at 33, and, most
importantly, that there was a woman standing behind the man,
id. at 29, 30. Glover was, of course, also concentrating
on the details of the transaction -- he must have looked away from
the seller's face to hand him the money and receive the drugs. The
observation during the conversation thus may have been as brief as
5 or 10 seconds.
As the Court notes, Glover was a police officer trained in and
attentive to the need for making accurate identifications.
Nevertheless, both common sense and scholarly study indicate that
while a trained observer such as a police officer
"is somewhat less likely to make an erroneous identification
than the average untrained observer, the mere fact that he has been
so trained is no guarantee that he is correct in a specific case.
His identification testimony should be scrutinized just as
carefully as that of the normal witness."
Wall,
supra, 432 U.S.
98fn2/1|>n. 1, at 14;
see also Levine & Tapp,
supra, 432 U.S.
98fn2/8|>n. 8, at 1088. Moreover,
"identifications made by policemen in highly competitive
activities, such as undercover narcotic agents . . . should be
scrutinized with special care."
Wall,
supra, 432 U.S.
98fn2/1|>n. 1, at 14. Yet it is just such a searching
inquiry that the Court fails to make here.
Another factor on which the Court relies -- the witness' degree
of certainty in making the identification -- is worthless as an
indicator that he is correct. [
Footnote 2/10] Even if Glover had been unsure initially
about his identification of respondent's picture, by the time he
was called at trial to present a key piece of evidence for the
State that paid his salary, it is impossible to imagine his
responding negatively to such questions as "is there any doubt in
your mind whatsoever" that the identification was correct. Tr. 34,
41-42. As the Court noted in
Wade:
"'It is a matter of common experience that, once a
Page 432 U. S. 131
witness has picked out the accused at the [pretrial
confrontation], he is not likely to go back on his word later
on.'"
388 U.S. at
388 U. S. 229,
quoting Williams & Hammelmann, Identification Parades -- I,
Crim.L.Rev. 479, 482 (1963).
Next, the Court finds that, because the identification procedure
took place two days after the crime, its reliability is enhanced.
While such temporal proximity makes the identification more
reliable than one occurring months later, the fact is that the
greatest memory loss occurs within hours after an event. After
that, the drop-off continues much more slowly. [
Footnote 2/11] Thus, the reliability of an
identification is increased only if it was made within several
hours of the crime. If the time gap is any greater, reliability
necessarily decreases.
Finally, the Court makes much of the fact that Glover gave a
description of the seller to D'Onofrio shortly after the incident.
Despite the Court's assertion that, because "Glover himself was a
Negro and unlikely to perceive only general features of
hundreds of Hartford black males,' as the Court of Appeals
stated," ante at 432 U. S. 115,
the description given by Glover was actually no more than a general
summary of the seller's appearance. See ante at
432 U. S. 101.
We may discount entirely the seller's clothing, for that was of no
significance later in the proceeding. Indeed, to the extent that
Glover noticed clothes, his attention was diverted from the
seller's face. Otherwise, Glover merely described vaguely the
seller's height, skin color, hairstyle, and build. He did say that
the
Page 432 U. S. 132
seller had "high cheekbones," but there is no other mention of
facial features, nor even an estimate of age. Conspicuously absent
is any indication that the seller was a native of the West Indies,
certainly something which a member of the black community could
immediately recognize from both appearance and accent. [
Footnote 2/12]
From all of this, I must conclude that the evidence of Glover's
ability to make an accurate identification is far weaker than the
Court finds it. In contrast, the procedure used to identify
respondent was both extraordinarily suggestive and strongly
conducive to error. In dismissing "the corrupting effect of the
suggestive identification" procedure here,
ante at
432 U. S. 116,
the Court virtually grants the police license to convict the
innocent. By displaying a single photograph of respondent to the
witness Glover under the circumstances in this record, almost
everything that could have been done wrong was done wrong.
In the first place, there was no need to use a photograph at
all. Because photos are static, two-dimensional, and often
outdated, they are "clearly inferior in reliability" to corporeal
procedures. Wall,
supra, 432 U.S.
98fn2/1|>n. 1, at 70;
People v.
Gould, 54 Cal. 2d
621, 631, 354 P.2d 865, 870 (1960). While the use of
photographs is justifiable and often essential where the police
have no knowledge of an offender's identity, the poor reliability
of photos makes their use inexcusable where any other means of
identification is available. Here, since Detective D'Onofrio
believed that he knew the seller's identity,
see ante at
432 U. S. 101,
432 U. S. 115,
further investigation without resort to a photographic showup was
easily possible. With little inconvenience, a corporeal
Page 432 U. S. 133
lineup including Brathwaite might have been arranged. [
Footnote 2/13] Properly conducted, such a
procedure would have gone far to remove any doubt about the
fairness and accuracy of the identification. [
Footnote 2/14]
Worse still than the failure to use an easily available
corporeal identification was the display to Glover of only a single
picture, rather than a photo array. With good reason, such
single-suspect procedures have "been widely condemned."
Stovall
v. Denno, 388 U.S. at
388 U. S. 302. They give no assurance that the witness
can identify the criminal from among a number of persons of similar
appearance, surely the strongest evidence that there was no
misidentification. In
Simmons v. United States, our first
decision involving photographic identification, we recognized the
danger that a witness seeing a suggestively displayed picture will
"retain in his memory the image of the photograph, rather than of
the person actually seen." 390 U.S. at
390 U. S.
383-384. "Subsequent identification of the accused then
shows nothing except that the picture was a good likeness."
Williams & Hammelmann,
supra, 432 U.S.
98fn2/1|>n. 1, at 484. As
Simmons warned, the
danger of error is at its greatest when
"the police display to the witness only the picture of a single
individual . . . [and] is also heightened if the police indicate to
the witness that they have other evidence that . . . the perso[n]
pictured committed the crime."
390 U.S. at
390 U. S.
383.
Page 432 U. S. 134
See also ALI, Model Code of Pre-Arraignment Procedure
§§ 160.2(2), (5) (1975).
The use of a single picture (or the display of a single live
suspect, for that matter) is a grave error, of course, because it
dramatically suggests to the witness that the person shown must be
the culprit. Why else would the police choose the person? And it is
deeply ingrained in human nature to agree with the expressed
opinions of others -- particularly others who should be more
knowledgeable -- when making a difficult decision. [
Footnote 2/15] In this case, moreover,
the pressure was not limited to that inherent in the display of a
single photograph. Glover, the identifying witness, was a state
police officer on special assignment. He knew that D'Onofrio, an
experienced Hartford narcotics detective, presumably familiar with
local drug operations, believed respondent to be the seller. There
was at work, then, both loyalty to another police officer and
deference to a better-informed colleague. [
Footnote 2/16] Finally, of course, there was Glover's
knowledge that without an identification
Page 432 U. S. 135
and arrest, government funds used to buy heroin had been
wasted.
The Court discounts this overwhelming evidence of
suggestiveness, however. It reasons that, because D'Onofrio was not
present when Glover viewed the photograph, there was "little
pressure on the witness to acquiesce in the suggestion."
Ante at
432 U. S. 116.
That conclusion blinks psychological reality. [
Footnote 2/17] There is no doubt in my mind that,
even in D'Onofrio's absence, a clear and powerful message was
telegraphed to Glover as he looked at respondent's photograph. He
was emphatically told that "this is the man," and he responded by
identifying respondent then and at trial "whether or not he was in
fact
the man.'" Foster v. California, 394 U.S. at 443.
[Footnote 2/18]
I must conclude that this record presents compelling evidence
that there was "a very substantial likelihood of misidentification"
of respondent Brathwaite. The suggestive
Page 432 U. S. 136
display of respondent's photograph to the witness Glover likely
erased any independent memory that Glover had retained of the
seller from his barely adequate opportunity to observe the
criminal.
IV
Since I agree with the distinguished panel of the Court of
Appeals that the legal standard of
Stovall should govern
this case, but that even if it does not, the facts here reveal a
substantial likelihood of misidentification in violation of
respondent's right to due process of law, I would affirm the grant
of habeas corpus relief. Accordingly, I dissent from the Court's
reinstatement of respondent's conviction.
[
Footnote 2/1]
See, e.g., P. Wall, Eye-Witness Identification in
Criminal Cases 19-23 (1965); N. Sobel, Eye-Witness Identification:
Legal and Practical Problems, §§ 3.01, 3.02, 30 (1972); Hammelmann
& Williams, Identification Parades -- II, Crim.L.Rev. 545, 550
(1963).
[
Footnote 2/2]
The accused, a Negro, was brought handcuffed by seven white
police officers and employees of the District Attorney to the
hospital room of the only witness to a murder. As the Court said of
this encounter:
"It is hard to imagine a situation more clearly conveying the
suggestion to the witness that the one presented is believed to be
guilty by the police.
See Frankfurter, The Case of Sacco
and Vanzetti 31-32."
United States v. Wade, 388 U.
S. 218,
388 U. S. 234
(1967).
[
Footnote 2/3]
The police reasonably feared that the witness might die before
any less suggestive confrontation could be arranged.
[
Footnote 2/4]
See also McGowan, Constitutional Interpretation and
Criminal Identification, 12 Wm. & Mary L.Rev. 235, 240
(1970).
If the test enunciated in
Stovall permitted any
consideration of the witness' opportunity to observe the offender
at the time of the crime, it was only in the narrowly circumscribed
context of ascertaining the extent to which the challenged
procedure was "conducive to irreparable mistaken identification."
It is noteworthy, however, that, in applying its test in
Stovall, the Court did not advert to the significant
circumstantial evidence of guilt,
see United States ex rel.
Stovall v. Denno, 355 F.2d 731, 733-734 (CA2 1966), nor
discuss any factors bearing on the witness' opportunity to view the
assailant.
[
Footnote 2/5]
Mr. Justice Harlan, writing for the Court in
Simmons,
acknowledged that there was a distinction between that case and
Stovall. After describing the factual setting and the
applicable due process test, he noted that "[t]his standard accords
with our resolution of a similar issue in
Stovall." 390
U.S. at
390 U. S. 384.
He pointedly did not say that the cases were the same, nor did he
rely on
Stovall to set the standard.
[
Footnote 2/6]
"The showup itself consisted of two detectives walking
respondent past the victim." 409 U.S. at
409 U. S. 195.
The police also ordered respondent to repeat the words used by the
criminal. Inadequate efforts were made to secure participants for a
lineup, and there was no pressing need to use a showup.
[
Footnote 2/7]
See, e.g., N. Sobel,
supra, 432 U.S.
98fn2/1|>n. 1, §§ 37, 38 (Supp. 1977); Grano,
Kirby,
Biggers, and
Ash: Do Any Constitutional Safeguards
Remain Against the Danger of Convicting the Innocent? 72
Mich.L.Rev. 717 (1974); M. Hartman N. Goldberg, The Death of the
Warren Court, The Doctrine of Suggestive Identification, 32 NLADA
Briefcase 78 (1974); Pulaski,
Neil v. Biggers: The Supreme
Court Dismantles the Wade Trilogy's Due Process Protection, 26
Stan.L.Rev. 1097 (1974); Recent Developments, Identification:
Unnecessary Suggestiveness May Not Violate Due Process, 73
Colum.L.Rev. 1168 (1973).
[
Footnote 2/8]
See, e.g., People v. Anderson, 389 Mich 155, 172-180,
192-220,
205 N.W.2d
461, 468-472, 479-494, 485 (1973); Levine & Tapp, The
Psychology of Criminal Identification: The Gap From
Wade
to
Kirby, 121 U.Pa.L.Rev. 1079 (1973); O'Connor, "That's
the Man": A Sobering Study of Eyewitness Identification and the
Polygraph, 49 St. John's L.Rev. 1 (1974); McGowan,
supra,
432 U.S.
98fn2/4|>n. 4, at 238-239; Grano,
supra, 432 U.S.
98fn2/7|>n. 7, at 723-724, 768-770; Recent Developments,
supra, 432 U.S.
98fn2/7|>n. 7, at 1169 n. 11.
Moreover, as the exhaustive opinion of the Michigan Supreme
Court in
People v. Anderson, supra, noted:
"For a number of obvious reasons, however, including the fact
that there is no on-going systematic study of the problem, the
reported cases of misidentification are in every likelihood only
the top of the iceberg. The writer of this opinion, for example,
was able to turn up three very recent unreported cases right here
in Michigan in the course of a few hours' inquiry."
389 Mich. at 179-180, 205 N.W.2d at 472.
[
Footnote 2/9]
See also 429 U.S. at
429 U. S. 499
n. 6;
United States v. Washington, 431 U.
S. 181,
431 U. S.
193-194 (1977) (BRENNAN, J., dissenting); Brennan, State
Constitutions and the Protection of Individual Rights, 90
Harv.L.Rev. 489 (1977).
Cf. People v. Anderson, supra;
Commonwealth v. Botelho, ___ Mass. ___,
343
N.E.2d 876 (1976).
[
Footnote 2/10]
See, e.g., Wall,
supra, 432 U.S.
98fn2/1|>n. 1, t 15-16; People v. Anderson, 389 Mich., at
217-220, 205 N.W.2d at 493-494; O'Connor,
supra, 432 U.S.
98fn2/8|>n. 8, at 4-6.
[
Footnote 2/11]
See, e.g., Levine & Tapp,
supra, 432 U.S.
98fn2/8|>n. 8, at 1100-1101; Note, Pretrial Identification
Procedures --
Wade to
Gilbert to
Stovall: Lower Courts Bobble the Ball, 55 Minn.L.Rev. 779,
789 (1971);
People v. Anderson, supra at 214-215, 205
N.W.2d at 491. Reviewing a number of its cases, the Court of
Appeals for the District of Columbia Circuit concluded several
years ago that while showups occurring up to perhaps 30 minutes
after a crime are generally permissible, one taking place four
hours later, far removed from the crime scene, was not.
McRae
v. United States, 137 U.S.App.D.C. 80, 87, 420 F.2d 1283, 1290
(1969).
[
Footnote 2/12]
Brathwaite had come to the United States from his native
Barbados as an adult. Tr. 99. It is also noteworthy that the
informant who witnessed the transaction and was described by Glover
as "trustworthy,"
id. at 47, disagreed with Glover's
recollection of the event. The informant testified that it was a
woman in the apartment who took the money from Glover and gave him
the drugs in return.
Id. at 887.
[
Footnote 2/13]
Indeed, the police carefully staged Brathwaite's arrest in the
same apartment that was used for the sale,
see ante at
432 U. S. 101,
116, indicating that they were fully capable of keeping track of
his whereabouts and using this information in their
investigation.
[
Footnote 2/14]
It should be noted that this was not a case where the witness
knew the person whom he saw committing a crime, or had an unusually
long time to observe the criminal, so that the identification
procedure was merely used to confirm the suspect's identity.
Cf. United State v. Wade, 388 U.
S. 218,
388 U. S. 250,
388 U. S. 251
(1867) (WHITE, J., dissenting). For example, had this been an
ongoing narcotics investigation in which Glover had met the seller
a number of times, the procedure would have been less
objectionable.
[
Footnote 2/15]
See, e.g., United States v. Wade, supra at
388 U. S.
228-229;
People v. Anderson, 389 Mich., at
173-177, 215-217, 205 N.W.2d at 468-471, 491-493; Wall,
supra, 432 U.S.
98fn2/1|>n. 1, at 26-40; O'Connor,
supra, 432 U.S.
98fn2/8|>n. 8, at 9-10; Levine & Tapp,
supra,
432 U.S.
98fn2/8|>n. 8.
[
Footnote 2/16]
In fact, the trial record indicates that D'Onofrio was
remarkably ill-informed, although it does not appear that Glover
knew this at the time of the identification. While the Court is
impressed by D'Onofrio's immediate response to Glover's
description,
ante at
432 U. S. 108,
432 U. S. 115,
that cannot alter the fact that the detective, who had not
witnessed the transaction, acted on a wild guess that respondent
was the seller. D'Onofrio's hunch rested solely on Glover's vague
description, yet D'Onofrio had seen respondent only "[s]everal
times, mostly in his vehicle." Tr. 64. There was no evidence that
respondent was even a suspected narcotics dealer, and D'Onofrio
thought that the drugs had been purchased at a different apartment
from the one Glover actually went to.
Id. at 47, 68, 69.
The identification of respondent provides a perfect example of the
investigator and the witness bolstering each other's inadequate
knowledge to produce a seemingly accurate but actually worthless
identification.
See Sobel,
supra, 432 U.S.
98fn2/1|>n. 1, § 3.02, at 12.
[
Footnote 2/17]
That the "identification was made in circumstances allowing care
and reflection,"
ante at
432 U. S. 116,
is hardly an unequivocal sign of accuracy. Time for reflection can
just as easily be time for reconstructing an image only dimly
remembered to coincide with the powerful suggestion before the
viewer.
[
Footnote 2/18]
This discussion does not imply any lack of respect for the
honesty and dedication of the police. We all share the frailties of
human nature that create the problem. Justice Frank O'Connor of the
New York Supreme Court decried the dangers of eyewitness testimony
in a recent article that began with this caveat:
"From the vantage point of ten years as District Attorney of
Queens County (195646) and six years on the trial bench (1969 to
[1974]), the writer holds in high regard the professional
competence and personal integrity of most policemen. Laudable
instances of police efforts to clear a doubtful suspect are legion.
Deliberate, willful efforts to frame or railroad an innocent man
are totally unknown, at least to me. Yet, once the best-intentioned
officer becomes honestly convinced that he has the right man, human
nature being what it is, corners may be cut, some of the niceties
forgotten, and serious error committed."
O'Connor,
supra, 432 U.S.
98fn2/8|>n.8, at n.1.