Due Process Foundations

Due Process Foundations

The due process attack on an identification grew up beside the counsel cases but answers a different question. In June 1967 the Court decided United States v. Wade, Gilbert v. California, and Stovall v. Denno as a trilogy, and the first two gave the accused a right to counsel at certain lineups.¹ Stovall's confrontation had taken place before those decisions, and the Court confined the counsel rule to lineups conducted after Wade and Gilbert were decided.² That left a further question, which the Court took up directly: whether the confrontation had been so unfair that it denied Stovall due process even though no counsel right was available. The Court described that inquiry as “a recognized ground of attack upon a conviction independent of any right to counsel claim.”³

The two grounds come apart because each regulates something different. The counsel right puts a lawyer in the room so that the lawyer can watch for suggestive features and bring them out on cross-examination; it does not entitle the lawyer to redesign the lineup. Due process looks at the display itself, and it rests on the Fourteenth Amendment's command that no State deprive a person of liberty without due process of law.⁴ Because the counsel right turns on when and how the identification occurred, some identifications, photographic displays among them, fall outside it and leave due process as the constitutional check. An analysis that ends once it finds no right to counsel has therefore skipped the question that the rest of this chapter addresses.

Stovall supplied the standard, and Foster v. California repeated it: judged by the totality of the circumstances, the conduct of an identification procedure may be “so unnecessarily suggestive and conducive to irreparable mistaken identification” as to deny due process.⁵ Each phrase carries weight. A suggestive display signals which person the police believe is guilty, so the witness may choose that person because of the signal rather than because of any memory of the crime. The word “unnecessarily” asks whether the suggestion could have been avoided, a point that later sections develop. The word “irreparable” describes how the harm operates: once a witness has seen the suspect singled out, the memory of the display competes with the memory of the crime and may displace it, and neither cross-examination nor a later fair lineup can reliably restore the original. Finally, “totality of the circumstances” means that no single feature of the procedure decides the matter, which Stovall itself demonstrates. The Court there acknowledged that showing a suspect singly to a witness has been widely condemned, and it still found no violation on the record before it.⁶

Photographic displays receive a parallel formulation from Simmons v. United States. A conviction resting on an in-court identification that followed a pretrial photographic identification will be set aside only if the photographic procedure was so impermissibly suggestive as to give rise to “a very substantial likelihood of irreparable misidentification.”⁷ The wording shifts attention from the police's design to the probable effect on the witness, and the words “very substantial” set a demanding threshold, so a photographic array with some suggestive feature does not by itself require reversal. Both formulations point at the same danger, which is a display so loaded that the witness's answer reports the display and not the crime.

Stovall and Foster work best as a matched pair. In Stovall the police brought the suspect to the hospital room of Mrs. Behrendt, the only eyewitness, for a one-on-one confrontation of the kind the Court said had been widely condemned.⁸ The Court nevertheless found no due process violation, because the showing was imperative: she was the only person who could exonerate Stovall, no one knew how long she would live, and she could not come to the jail, so the usual station-house lineup was out of the question.⁹ The suggestion was a cost the situation imposed, and a rule forbidding the showup would have risked losing the only identification, which could have freed Stovall as readily as convicted him. A showup therefore does not violate due process without more.¹⁰

Foster supplies the opposite pole. The only eyewitness to a Western Union robbery, Joseph David, the late-night manager, first viewed a three-man lineup in which Foster stood close to six feet tall, the other two men were five feet five or six inches, and only Foster wore a leather jacket like the one he had seen on the robber.¹¹ David “thought” Foster was the man but was not sure, so the police arranged a one-to-one meeting in an office, and David remained uncertain. A week or ten days later the police held a second lineup of five men in which Foster was the only person who had appeared in the first, and this time David was “convinced.”¹² The Court held that these suggestive elements made it all but inevitable that David would identify Foster whether or not he was the man, since the police had in effect told the witness again and again, “This is the man.”¹³ Because Foster's lineups also predated Wade and Gilbert, due process was his only available ground, and the Court reversed and remanded without deciding whether the error was harmless.¹⁴

Two facts separate the cases. The first is necessity: Stovall's suggestive showup was the only feasible way to obtain any identification from a witness who might die, while nothing in the facts the Court recited in Foster resembles that emergency. The second is how the police built the display. In Stovall a single confrontation was forced by circumstances, whereas in Foster each step was the police's own choice, and each step followed the witness's hesitation with a narrower choice until his certainty rose. When certainty appears only after the police have repeatedly singled out one man, the likelier source of the certainty is the display. Both decisions also reason from the possibility that the witness's answer reflects the procedure, a theme the Court later sharpened by describing the Stovall right as protecting an evidentiary interest.¹⁵

These early cases speak mainly about suggestiveness, and they leave open whether suggestiveness alone requires exclusion. The Court later identified that as the point that was “less clear” from its cases, and it declined to hold that unnecessary suggestiveness by itself compels exclusion, because a strict exclusionary rule would aim at deterring police from using a less reliable procedure when a more reliable one was available and would not rest on the premise that every such confrontation offends due process.¹⁶ The same line of cases explains why the law cares: suggestive confrontations are disapproved because they raise the likelihood of misidentification, and unnecessarily suggestive ones are condemned further because the added risk is gratuitous.¹⁷ The doctrine was contested from the start. Justice Black, dissenting in Stovall, objected that a general claim of unfairness has no footing in the constitutional text,¹⁸ and a dissent in Foster argued that barring eyewitness testimony takes from the jury its task of weighing the witness.¹⁹ Those objections foreshadow why later cases ask whether a suggestive identification can still be trusted before they exclude it, a question that follows the next sections on what makes a procedure unnecessarily suggestive.