Due Process as a Backstop

Due Process as a Backstop

The Sixth Amendment limits covered earlier in this chapter leave a gap. Before adversary proceedings begin, and whenever the accused is absent from the procedure, as with a photographic array, the guarantee supplies no lawyer, even though a witness's memory can be bent by suggestion in either setting. In Kirby v. Illinois, police arrested a suspect and showed the suspect alone to the victim at the station before any charge, and no right to counsel attached to that confrontation.¹ Due process fills the gap. Whether or not counsel was entitled to be present, the results of an identification procedure can be challenged on due process grounds, so the suspect in that station-house show-up could still argue that the procedure was unduly suggestive and the identification unreliable.²

The due process challenge traces to Stovall v. Denno, which the Court decided the same day as Wade.³ A stabbing victim awaiting major surgery was asked in a hospital room whether the handcuffed defendant, the only Black person among seven law enforcement officials in the room, was the attacker, and the victim said yes.⁴ Because the Court held the Wade and Gilbert rules prospective only, it did not decide the case on the right to counsel, but it observed that any accused remains free to allege and prove that a confrontation was so unfair that it denied due process.⁵ The inquiry looks at the totality of the circumstances and asks whether the confrontation was so unnecessarily suggestive and conducive to irreparable mistaken identification that due process was denied.⁶ Stovall's own claim failed, and the reason shows what the word unnecessarily does. The show-up was suggestive, but given the victim's precarious condition it was necessary, so it was not unnecessarily suggestive.⁷ The qualifier keeps suggestion that officers could not reasonably avoid from costing the prosecution an identification, while suggestion that the police could have avoided counts against it.

A successful challenge needs more than suggestion. The procedure must have been unnecessarily suggestive and must also have created a substantial likelihood of irreparable misidentification, so a court can find the first element and still admit the identification.⁸ Suggestion creates a risk of error, and the test asks whether that risk produced an untrustworthy identification, because the Clause guards against convictions resting on mistaken identifications. For that reason suggestiveness is an important factor that does not by itself require exclusion, since the Court principally focuses on reliability, and an identification that follows a suggestive procedure may nonetheless be reliable.⁹ The factors bearing on reliability are the witness's opportunity to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of the witness's earlier description, the witness's certainty at the confrontation, and the time between the crime and the confrontation.¹⁰ Those factors trace to Neil v. Biggers, and Manson v. Brathwaite is another due process authority on suggestive pretrial identifications. Their full analysis belongs to a separate reading on due process in identifications.¹¹

The reliability analysis has one stated boundary. It does not apply to identifications arranged by private individuals, which fits a doctrine aimed at confrontations that the government stages.¹² Officers who run a procedure are in a different position, because the principal problem with eyewitness identifications is suggestiveness, which can be created both intentionally and unintentionally by whoever runs the confrontation.¹³

Exam stems that describe a suspect arrested, shown alone to the victim at the station, and identified call for an answer on two levels. On the Sixth Amendment, no counsel right existed, because no adversary proceeding had begun. On due process, the challenge survives but is hard to win: the question is whether the show-up was unnecessarily suggestive and created a substantial likelihood of misidentification, judged mainly by reliability. An answer that stops at the Sixth Amendment misses the remaining claim, and an answer that treats suggestiveness alone as requiring exclusion overstates it.