Introduction

Suggestive Identifications and Due Process

Introduction

Whether the jury may hear that testimony depends on what the display did to the clerk's memory. A witness shown one face, presented as the likely culprit, may come to remember the face in the photograph in place of the face at the counter, and from then on will point to the photographed man with complete sincerity. Cross-examination cannot undo that substitution, because the witness is not lying and honestly cannot separate the two memories. The Supreme Court voiced a similar worry about lineups in United States v. Wade: the pretrial confrontation may effectively decide the accused's fate, with the witness acting as the sole jury and almost no effective appeal from that verdict.¹ The constitutional text that screens for this danger is the Due Process Clause of the Fourteenth Amendment, which provides that no State shall “deprive any person of life, liberty, or property, without due process of law.”² Through that Amendment the limit binds state prosecutions.

An accused has two separate constitutional grounds for attacking an eyewitness identification, and they must be kept apart. The first is the Sixth Amendment right to have counsel present at certain lineups, which is taught separately. That right attaches to corporeal identifications held at or after the initiation of adversary judicial criminal proceedings, as Kirby v. Illinois explained in applying Wade.³ It does not extend to photographic displays under United States v. Ash.⁴ The second ground is due process, which reaches lineups, showups, and photographic displays whether or not counsel was entitled to be present. Because the two grounds operate independently, a lineup held before adversary proceedings began, or one that defense counsel attended, may leave due process as the only available attack on the identification.⁵

The due process attack poses a two-part question. The first part asks whether the police procedure was “unnecessarily suggestive and conducive to mistaken identification.”⁶ Suggestiveness alone does not end the inquiry, however, because an identification can remain trustworthy even after a flawed display. So when the procedure was unnecessarily suggestive, the court asks a second question: whether the identification is still reliable under the totality of the circumstances. Neil v. Biggers and Manson v. Brathwaite supply the governing approach to that second question.⁷ This chapter follows that sequence, beginning with how the Court first recognized the due process ground. It then examines what makes a procedure unnecessarily suggestive, turns to the reliability factors that Biggers announced and Manson applied, and ends with how a court weighs those factors against the suggestion and what remedy follows. The first step is the origin of the doctrine in Stovall v. Denno, which recognized the due process attack, and Foster v. California, which applied it to find a violation.⁸