432 U.S. 98 (1977)
Jimmy Glover, a full-time undercover state police officer, and Henry Alton, an informant, went to an apartment building in Hartford, Connecticut, on May 5, 1970, for the purpose of purchasing narcotics. Glover and Alton entered the building and walked up to the third floor. Glover knocked at the door of one of the two apartments and a man opened the door about 12 to 18 inches. Glover observed the man for two to three minutes from a distance of two feet. The area was illuminated by natural light from a window in the third floor hallway. Glover asked for two things of narcotics and gave the man $20. The man closed the door. Soon the man returned and gave Glover two glassine bags containing what later proved to be heroin. During this entire transaction, which lasted approximately seven to eight minutes, the man stood within two feet of Glover, and was directly in front of him.1
At about 7:45 p.m. on May 7, 1970, Detective D'Onofrio and Officer Alton drove to the scene of the crime. D'Onofrio left Alton in the car and returned with a picture of respondent that he had obtained from the Records Division of the Hartford Police Department. The picture was a black and white police mug shot of respondent taken in April 1970. D'Onofrio showed the picture to Glover and asked if he was the man who had sold him the narcotics. Glover said that he was.2 Glover, when alone, viewed the photograph for the first time upon his return to headquarters on May 7 and identified the person shown as the one from whom he had purchased the narcotics.3
At the trial in January 1971, Glover testified that there was no doubt that the person shown in the picture was the same person who had sold him the narcotics.4 He also made a positive in-court identification of respondent.5 No objection was made by respondent to either the out-of-court or the in-court identification.6 The jury found respondent guilty of the offenses of possession and sale of heroin.7 He was sentenced to terms of not less than six nor more than nine years on each count, the terms to run concurrently.8 On appeal, the Supreme Court of Connecticut affirmed the convictions.9
Fourteen months later, respondent filed a petition for habeas corpus in the United States District Court for the District of Connecticut.10 The District Court dismissed respondent's petition.11 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.12 The Supreme Court granted certiorari.13
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?14
The Due Process Clause of the Fourteenth Amendment does not compel per se exclusion of pretrial identification evidence obtained through suggestive and unnecessary police procedures.15 Instead, the admissibility of such evidence turns on the totality of the circumstances, with reliability serving as the linchpin that determines whether the identification evidence may reach the jury.16 This standard, drawn from Stovall v. Denno and refined in Neil v. Biggers, requires weighing the corrupting effect of any suggestiveness against five specific factors: the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of any prior description, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.17 A per se rule of automatic exclusion would impose unnecessary societal costs by barring reliable evidence without regard to its probative value.18
No. The Supreme Court rejected the per se exclusionary approach advanced by the Court of Appeals and instead reaffirmed that reliability under the totality of the circumstances governs admissibility for both pre- and post-Stovall identifications.19 The single-photograph display to Glover was concededly suggestive because it presented only one image and unnecessary because no emergency prevented use of a lineup or array.20 Nevertheless, the Court held that these procedural flaws did not require automatic suppression.21 Application of the Biggers factors to the established facts showed that the identification remained reliable.22
Glover, a trained undercover officer, stood two feet from the seller for two to three minutes in natural hallway light during a seven-to-eight-minute transaction.23 He immediately provided a detailed description that enabled D'Onofrio to select the correct mug shot.24 Glover viewed the photograph alone only two days later and expressed absolute certainty both then and at trial.25 These indicators of reliability substantially outweighed the limited corrupting effect of the single photograph, which Glover examined without pressure from other officers present.26
The evidence was therefore properly admitted, and the jury was left to assess its weight.27
The Due Process Clause does not compel exclusion of the identification evidence apart from considerations of reliability.28
Related opinions on this issue
Justice Stevens joined the majority opinion but stressed that reliability remains the central inquiry and that the single-photograph procedure, though suggestive, did not create a substantial likelihood of misidentification.29 He noted that the factual question was close yet concluded that the Court had resolved it correctly by focusing solely on indicia of reliability rather than other evidence of guilt.30 Stevens also observed that any new rules minimizing risks of mistaken identification are better developed through legislation than through judicial imposition of inflexible constitutional mandates.31
Joined by Justice Brennan
Justice Marshall dissented, joined by Justice Brennan, and argued that the Court should have adopted a per se rule excluding evidence from unnecessarily suggestive identifications.32 He maintained that Stovall established an independent due-process right to be free from such confrontations regardless of later reliability.33 He further argued that the totality test adopted here would permit seriously unreliable evidence to reach juries while allowing dangerous criminals to remain at large.34
Marshall emphasized that the single-photograph display was both extraordinarily suggestive and avoidable. He criticized the majority for effectively reinterpreting due process to turn on probable guilt rather than fundamental fairness in the identification procedure itself.
Whether the identification evidence in this case was reliable under the totality of the circumstances, including the opportunity of the witness to view the criminal, the witness' degree of attention, the accuracy of his prior description, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation?35
Reliability is determined by applying the five Biggers factors to the facts of the identification and then weighing those factors against the corrupting effect of any suggestive procedure.36 The factors are the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of the prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.37 When these indicators demonstrate that the identification is reliable, the evidence is admissible even if the confrontation procedure was suggestive and unnecessary.38
Yes. The established facts satisfy each Biggers factor and demonstrate that Glover's identification of Brathwaite was reliable.39 Glover had an ample opportunity to view the seller: he stood two feet away while the door was open twice, observed the man's face directly during the conversation and exchange of money and drugs, and the hallway was illuminated by natural light from a window.40 As a trained narcotics officer on duty, Glover paid a high degree of attention, knowing he would later have to locate and arrest the seller.41
His description, given minutes after the transaction, accurately captured the seller's race, height, build, hair style, and high cheekbones, and it immediately enabled D'Onofrio to retrieve the correct photograph.42 Glover displayed absolute certainty, testifying that there was no doubt whatsoever that the man in the photograph was the seller.43 Only two days elapsed between the May 5 transaction and the May 7 photographic identification, a short interval that preserved the freshness of Glover's memory.44 These strong reliability indicators were not outweighed by the corrupting effect of the single photograph, which Glover viewed alone without any officer present to exert pressure.45
The identification was therefore properly admitted at trial.46
The identification evidence was reliable under the totality of the circumstances and was properly admitted.47
Related opinions on this issue
Justice Stevens joined the majority but added two points of emphasis. He acknowledged that arguments for new rules to minimize the danger of convicting the innocent on unreliable eyewitness testimony carry substantial force.48 Nevertheless, he concluded that this rulemaking function can be performed more effectively by the legislative process than by judicial fiat and that the Constitution does not foreclose state experimentation.49
On the facts, Stevens found the reliability question extremely close yet agreed that the Court had resolved it properly by focusing solely on indicia of reliability rather than extraneous evidence of guilt.50 He stressed that the single-photograph procedure did not create a substantial likelihood of misidentification.51
Joined by Justice Brennan
Justice Marshall concluded that even under the totality test the identification was unreliable.52 He argued that Glover's opportunity to view the seller was limited to perhaps fifteen or twenty seconds while attention was divided among the transaction details, the woman in the room, and the partially opened door.53 The description Glover provided was only a vague summary of general features that could apply to many Hartford black males, and the two-day interval, while better than months, still allowed significant memory decay.54
Marshall further stressed that the single-photograph display was so powerfully suggestive that it likely supplanted any independent recollection Glover may have had.55