Unnecessary Suggestiveness

Unnecessary Suggestiveness

When the defense moves to bar testimony about an identification, the trial court does not begin by asking whether the witness can be trusted. It first works through three gatekeeping questions, ordinarily at a hearing held outside the jury's presence, although the Constitution does not require the jury's exclusion. The court asks whether the procedure was suggestive, whether it was unnecessarily suggestive, and whether law enforcement arranged it.¹ Only a procedure that clears all three gates leads to the reliability analysis taught later in this chapter, and even then suppression does not follow automatically.²

Each gate is a separate way for the prosecution to prevail without any inquiry into reliability. If the procedure was not suggestive, proof of the out-of-court identification is admissible, and the in-court identification stands with it.³ Suggestiveness by itself never requires suppression, even when it raises the risk of a mistaken identification.⁴ The questions therefore work as a filter, and because a no at any gate ends the due process challenge, the sequence is best run in order and stopped the moment an answer goes against the defense.

The cases show where the sequence ends in each direction. In Manson v. Brathwaite the State conceded at the outset that the procedure was suggestive, because the undercover officer was shown only one photograph, and that it was unnecessary, because no emergency or exigent circumstance justified it.⁹ The defendant therefore cleared the first two gates, yet the identification was admitted, because the Court declined to adopt a per se rule of exclusion and found the identification reliable enough to outweigh the suggestion.¹⁰ Stovall, discussed above, fails at the second gate for the opposite reason: the hospital showup was suggestive, but the suggestion was necessary because the only eyewitness was dying.¹¹ The three gates decide whether the court must examine reliability at all, and the examination itself decides whether the evidence comes out.

The third gate is illustrated by Perry v. New Hampshire. A witness watched a man break into a car from her kitchen window, and when an officer asked for a more specific description, she pointed out the window to a man standing in the parking lot next to a police officer.¹² The trial court denied Perry's motion to suppress at the first step of its inquiry, reasoning that the suggestive circumstance had not been manufactured by the police, since the witness pointed spontaneously and without inducement from them.¹³ The Supreme Court held that the Due Process Clause does not require a judge to make a preliminary reliability assessment of an identification made under suggestive circumstances that the police did not arrange.¹⁴ A suggestive scene that nobody in law enforcement created thus never reaches the reliability stage, however suggestive it looks in hindsight.

The sequence is shaped this way because each gate answers a different question about why the court should intervene. The first gate asks whether any risk exists. The second asks whether the risk was avoidable, which is the point of the word unnecessarily: a rule that excluded identifications produced by an unavoidable procedure would punish the police for a cost the situation imposed and could throw out the only identification available. The third asks whether the police were responsible, and this gate carries the incentive reasoning. Police choose the display, so a rule that costs them an identification when they choose an unnecessarily suggestive one gives them a reason to use a fairer one, and the Court in Brathwaite relied on that deterrent effect in preferring the totality approach.¹⁵ Where the police used no unnecessarily suggestive procedure, there is no improper police conduct to deter, so the reliability inquiry has no purpose beyond what the trial's ordinary safeguards already serve.¹⁶

The burden of proof at this stage sits with the accused. The defendant must show that the identification was derived through impermissibly suggestive means, and the defendant must prove the alleged due process violation generally.¹⁷ This allocation differs from the right-to-counsel context, where the government must prove a waiver or an independent source, so the defendant carries the burden on every gate here. The next subsection takes up the first gate and what makes a procedure suggestive.

Suggestive Procedures

A procedure is suggestive when it singles out the suspect, so that the witness's selection may reflect the way the police arranged the display and not the witness's memory of the crime. The reason traces to how identification works. A fair lineup or photographic array places the suspect among people who resemble one another and fit the witness's description, so memory has to do the discriminating, and a wrong choice among the fillers remains possible, which exposes the error. A display that offers one candidate, or lets one candidate stand out, removes that check and supplies the answer that memory was supposed to give. The danger is serious because a witness's recollection of a stranger, formed under stress, can be distorted easily by the circumstances or by later actions of the police.¹⁹ A finding of suggestiveness is therefore the first gate in the due process inquiry, and the cases supply several recurring markers of a display that singles out the suspect.

The most direct way to single out a suspect is to show the witness no one else. The Court in Stovall noted that showing suspects singly to witnesses for identification, and not as part of a lineup, has been widely condemned.²⁰ In Manson v. Brathwaite the police showed an undercover officer a single photograph of the suspect, and the State conceded from the outset that the procedure was suggestive because only one photograph was used.²¹ Justice Marshall, dissenting, put the point directly: a single photograph is inherently suggestive, and the police should have used a proper lineup.²² Live showups follow the same logic. In Neil v. Biggers the police could find no one matching the suspect's unusual description to fill out a lineup, so two detectives walked the suspect past the victim and, at her request, had him say the words her attacker had used.²³ Stovall's own facts add another marker, since the suspect brought to the hospital room to be asked whether he was the man was the only Black person in the room.²⁴

A lineup can reproduce the same problem when the suspect differs from the fillers in a way the witness will notice. In Foster v. California the witness remembered a robber wearing a leather jacket, and the first lineup held three men: Foster, close to six feet tall and wearing a leather jacket like the one the witness had seen on the robber, and two men about five feet five or six inches tall.²⁵ The Court treated the height contrast and the matching jacket as the features that made Foster stand out from the other two men.²⁶ When the fillers differ from the suspect in the very traits the witness remembers, a pick of the suspect says little about memory, and the lineup works as a one-person display in disguise.

Repeated exposure singles out a suspect by a different route. After the first lineup the witness could not positively identify Foster, so the police arranged a one-to-one meeting, and when the witness remained uncertain they held a second lineup of five men in which Foster was the only person who had appeared in the first.²⁷ By then the witness had seen Foster three times, and his face looked familiar because of the earlier displays whether or not the familiarity came from the robbery. The witness who had only "thought" Foster was the man became "convinced," and the Court said the police had in effect told the witness again and again, "This is the man."²⁸ Photographs can be suggestive in the same way. In United States v. Stevens a federal appeals court examined a "wanted board" and found that the suspect's picture was the only one that appeared twice, that it was significantly larger than the others, and that he was the only suspect shown in color, while most of the other posters carried only composite sketches.²⁹ The court accepted that these features made the board suggestive, yet it went on to hold that the identification did not come from an unnecessarily suggestive procedure, because the board was an assortment of pictures assembled to facilitate chance identifications and was not an array arranged for this crime.³⁰ That second step belongs to the gates taken up in the next subsections. For present purposes, size, color, and duplication each count as ways of singling out a suspect.

Photographic displays open three separate places for suggestion to enter, and a dissenting opinion in United States v. Ash catalogued them. Each source can be checked against a given display on its own terms:

• The photographs themselves, when differences in age, pose, or physical characteristics, or in mounting, background, lighting, or markings, tend to single out the accused.³¹
• The manner of display, as when the pictures of several people are shown but one person's photograph recurs or is emphasized, or when the arrangement or time sequence draws attention to a particular photograph.³²
• The gestures or comments of the person conducting the display, as when a prosecutor says there is other evidence against someone pictured, points to a photograph and asks whether it looks familiar, or communicates through inflection and facial expression.³³

The first two sources make one picture stand out from the set, and the third lets the examiner point the witness toward it. The harm is lasting because a witness who picks the favored photograph tends to retain the image of the photograph in memory rather than the person actually seen.³⁴

A finding of suggestiveness is a threshold and carries no automatic remedy. Stovall itself shows that a showup, without more, does not violate due process.³⁵ The Manson Court refused to adopt a per se rule of exclusion because such a rule would keep reliable and relevant evidence from the jury.³⁶ Biggers confirms the point from the other direction: the showup there was suggestive, and the identification was still upheld because it was reliable under the totality of the circumstances.³⁷ Students lose this issue when they treat suggestiveness as the end of the analysis, since all it does is carry the inquiry to the next gate, which asks whether the police could reasonably have used a fairer method. Where the procedure was not suggestive at all, the gate sequence above ends the due process challenge, and the identification comes in subject to ordinary cross-examination.

Necessity

A display that singles out the suspect clears only the first gate. The second gate asks about necessity: whether the police could reasonably have used a fairer method, or whether the circumstances left them no better choice. The language comes from Stovall v. Denno, which recognized a due process attack on a confrontation that was "so unnecessarily suggestive and conducive to irreparable mistaken identification" that it denied the accused due process.³⁹ Suggestion by itself raises the risk of error, and the unnecessary kind adds a second objection, because the added risk was gratuitous.⁴⁰

That second objection is why necessity matters at all. A rule that disfavors unnecessarily suggestive displays aims to deter the police from using a less reliable procedure where a more reliable one was available.⁴¹ Deterrence has something to work on only when an alternative existed. If no fairer method was feasible, condemning the procedure would change no police behavior and could cost the prosecution the only identification it has. An officer who skipped an easily assembled lineup, by contrast, chose the risk, and the cost of that choice belongs with the police.

Stovall marks the pole where necessity is clear. The only eyewitness to a fatal stabbing lay in a hospital, nobody knew how long she would live, and she could not come to the jail, so the police took the suspect to her bedside.⁴² The Court of Appeals, in language the Supreme Court quoted, reasoned that she was the only person who could exonerate the suspect as well as identify him, that the police had followed the only feasible procedure, and that the usual station-house lineup was not a realistic option.⁴³ That detail shows the emergency served the accused too, since a prompt identification could have cleared him. Urgency can also come from the investigation itself. In Simmons v. United States the Court supported a photographic display in part by the need to use other investigative leads promptly, and in part by the likely reliability of witnesses who had watched the bank robbers for up to five minutes in good light.⁴⁴

Manson v. Brathwaite stands at the other pole. Two days after buying heroin at an apartment door, an undercover state officer was shown a single mug shot by a detective and confirmed it was the seller.⁴⁵ The State acknowledged at the outset that the procedure was suggestive, because only one photograph was used, and unnecessary, because there was no emergency or exigent circumstance, and the prosecution offered no explanation for skipping a photographic array or a lineup.⁴⁶ Justice Marshall's dissent put the necessity point in a sentence: the police should have used a proper lineup.⁴⁷ Both cases showed one person to one witness, so the form of the display cannot explain the different results at this gate. A dying witness left the police one feasible procedure in Stovall, while nothing in Manson prevented them from assembling an array or a lineup.

Between the two poles sits Neil v. Biggers, where necessity was a contested question of degree. Seven months after a rape, the police detained the respondent on another charge, tried to build a lineup, checked the city jail and the city juvenile home, found no one who fit his unusual physical description, and held a showup instead.⁴⁸ A shortage of suitable fillers is a recognizable reason a lineup may be impractical, and the police had made a real effort. Even so, the Court was inclined to agree with the courts below that the police had not exhausted all possibilities in looking for comparable men.⁴⁹ The Court did not need to settle the point, because it held that unnecessary suggestiveness does not by itself require exclusion.⁵⁰

The first version still carries the Biggers caution: a court may judge even a real search incomplete. Necessity can also rest on a limitation built into the display itself. In United States v. Stevens a federal court of appeals accepted that a wanted board had features that singled out the suspect, yet held that wanted boards are often suggestive but not unnecessarily so.⁵¹ The police who assemble such a board must usually choose from a limited supply of pictures and cannot gather uniform photographs of each suspect, and the board was a collection assembled to facilitate chance identifications, not an array arranged for the crime.⁵² The court added that had the police used the same board as a conventional photographic array, it would have been unnecessarily suggestive.⁵³ The same materials can therefore pass or fail at this gate depending on whether a fairer arrangement was reasonably available for the use the police made of them.

Two mistakes recur at this gate. The first treats every suggestive procedure as unconstitutional, which skips the necessity question that the hospital showup in Stovall and the wanted board in Stevens both answered for the government. The second finds the suggestion unnecessary and stops as though exclusion follows automatically. Biggers rejected that step, because a strict rule against unnecessarily suggestive confrontations exists to deter police choices and does not assume that admitting such evidence always offends due process.⁵⁴ Manson shows the same result after the State conceded the procedure was unnecessary: the Court rejected a per se rule of exclusion and adopted the totality approach.⁵⁵ A finding of unnecessariness therefore keeps the challenge alive without deciding it. The next subsection takes up the third gate, which asks whether law enforcement arranged the procedure, and only after that does the court weigh reliability.

Police-Arranged Procedures

A suggestive and unnecessary procedure has one more gate to clear before the reliability analysis begins, and that gate asks who arranged it. The preliminary judicial inquiry asks whether the identification was unnecessarily suggestive and arranged by law enforcement, and a procedure with both features sends the court on to weigh reliability.⁵⁸ The requirement drew little attention for a long time because each decision in the line that began with Stovall involved a display that officers put together themselves.⁵⁹ In Manson, for example, a detective chose to show the undercover officer a single photograph, so no one could doubt that the police had arranged the display.⁶⁰ The element became a live issue only when a defendant asked the Court to extend the reliability screen to a suggestion that no officer had designed.

That request came in Perry v. New Hampshire. A witness who had seen a man breaking into a car pointed to her kitchen window and told the officer, who had asked for a more specific description, that the person she saw was standing in the parking lot next to a police officer, and Perry's arrest followed.⁶¹ Perry moved to suppress the identification on the ground that the scene amounted to a one-person showup, which all but guaranteed that the witness would pick him.⁶² The trial court denied the motion because the identification did not come from a procedure manufactured by the police: the witness pointed to Perry spontaneously, and the officer never asked whether the man in the lot was the man she had seen.⁶³ The state supreme court affirmed, holding that due process calls for a reliability assessment before the jury hears an identification only where the police used suggestive techniques, and the Supreme Court granted review to decide whether the Due Process Clause requires that preliminary assessment for suggestive circumstances the police did not arrange.⁶⁴

The Court refused the extension. Perry conceded that, unlike every case in the Stovall line, law enforcement had not arranged the suggestive circumstances, and he argued that if reliability is the linchpin of admissibility, it should make no difference who created the suggestion.⁶⁵ The Court answered that the approach of Biggers and Manson governs suppression of an identification tainted by police arrangement, and that due process concerns arise only when officers use a procedure that is both suggestive and unnecessary.⁶⁶ Perry therefore holds that the reliability analysis does not reach an identification procedure arranged by a private individual, and that the Due Process Clause does not require a preliminary reliability assessment of an identification made under suggestive circumstances the police did not arrange.⁶⁷ Manson and Perry both put one person before one witness, so the form of the display cannot explain the different results. The detective's choice to show a lone photograph in Manson and the witness's spontaneous pointing in Perry can.

Two separate supports hold this rule up. The first is deterrence. Excluding identifications that look unreliable exists to discourage police from using improper lineups, showups, and photo arrays, and that purpose has nothing to act on when the police did not create the suggestion, so exclusion would change no officer's conduct while keeping from the jury evidence that may well be reliable.⁶⁸ The second support is that questionable reliability does not by itself make a trial fundamentally unfair, because the trial has its own tests for weak evidence. Those tests include the Sixth Amendment right to counsel, compulsory process, confrontation and cross-examination of witnesses, and the trial judge's power to exclude evidence whose probative value is substantially outweighed by its prejudicial impact or its potential to mislead the jury.⁶⁹ Deterrence does the heavier work, because it explains why a police-arrangement element exists at all, while the second support explains why the remaining risk is tolerable. The confession cases follow a similar pattern: in Colorado v. Connelly the Court found no basis for a due process violation absent police conduct causally related to the confession, even where the defendant's mental condition was at issue.⁷⁰

Justice Sotomayor, the lone dissenter in Perry, would not have drawn the line. In her view, eyewitness identifications combine unreliability, susceptibility to suggestion, powerful impact on the jury, and resistance to the ordinary tests of the adversarial process, and that combination can undermine a fair trial whoever created the suggestive circumstances.⁷¹ She would have held that admitting an identification derived from impermissibly suggestive circumstances, where it poses a very substantial likelihood of misidentification, violates due process, and she would not have distinguished between displays arranged by police and those arranged by private individuals.⁷² The two opinions disagree about what the screen is for. The majority treats it as a check on police conduct, so the source of the suggestion decides whether the screen applies. The dissent treats it as a guard on the fairness of the trial, so the danger of a mistaken identification stays the same whatever its source. The majority's view controls, and the dissent shows what the police-arrangement element leaves outside the screen.

Courts decide this element by asking what the police arranged for this investigation. In Stevens, the wanted board that the victims glanced at had suggestive features, yet the court stressed that it was a collection of random sketches and photographs assembled to facilitate chance identifications, and was not an array the police had arranged with this particular crime in mind.⁷³ An officer had offhandedly suggested that the victims look at it without expecting them to find their assailant.⁷⁴ The board was still a police product, and the court resolved the case at the necessity gate, so Stevens does not show a display free of police involvement. It shows that courts look at whether the display was designed for the crime under investigation.

Students lose this issue when they run the reliability factors without first asking who arranged the display. The factors from Biggers matter only after the court finds a procedure that was suggestive, unnecessary, and arranged by law enforcement. The opposite error treats the absence of police arrangement as a green light for the prosecution. That absence removes only the due process screen, and the identification still faces cross-examination and the judge's power to exclude evidence whose prejudice substantially outweighs its probative value.⁷⁵ The last section of this chapter returns to those remaining safeguards.