Reliability Despite Suggestiveness

Reliability Despite Suggestiveness

A procedure that is suggestive, unnecessary, and arranged by the police has passed the three gates just covered, and that shows the identification came out of a flawed display. It does not yet show a due process violation, because the Court changed what the last question asks. In Neil v. Biggers the inquiry moved away from how suggestive the display was and toward whether the identification can still be trusted, so the central question became whether, under the “totality of the circumstances,” the identification was reliable even though the confrontation procedure was suggestive.¹ Stovall had placed its emphasis on the suggestiveness of the confrontation, and Biggers shifted that emphasis to the reliability of the identification itself.² The facts of the case show how that shift can change a result, and the reasoning behind it explains why the Court made it.

The victim in Biggers had unusual grounds for confidence. She spent up to half an hour with her assailant, saw him under adequate artificial light in her house and under a full moon outdoors, and faced him directly at least twice.³ She gave the police a more than ordinarily thorough description, and over the next seven months she viewed suspects in lineups and showups and was shown between 30 and 40 photographs without identifying anyone.⁴ When the police later called her to the station to view the respondent, who was being detained on another charge, they could find no one at the city jail or the juvenile home who fit his unusual description, so two detectives walked him past her, and at her request he was directed to say “shut up or I’ll kill you.”⁵ She testified that she had “no doubt” about the identification.⁶ The courts below held that the identification failed to meet due process requirements, but the Court found their conclusions on the critical facts clearly erroneous, found no substantial likelihood of misidentification, and held that the evidence properly went to the jury.⁷

What Biggers decided about suggestiveness is easy to misstate. The Court was inclined to agree with the courts below that the police had not exhausted all possibilities in looking for physically comparable men, yet it refused to exclude the evidence on that ground.⁸ A strict rule of exclusion would aim to deter the police from using a less reliable procedure where a more reliable one may be available, and it would not rest on any assumption that admitting evidence of every such confrontation offends due process.⁹ The harm due process addresses is the likelihood of misidentification, so suggestive confrontations are disapproved because they raise that likelihood, and unnecessarily suggestive ones are condemned for the added reason that the increase is gratuitous.¹⁰ A suggestive display raises the risk that the witness picks the person shown rather than the person remembered, but a raised risk is not a guaranteed error. When the witness's own memory independently supports the choice, the display did not produce the identification, so excluding it would penalize the police while keeping from the jury evidence that is reliable and relevant.¹¹ What Biggers rejected is automatic exclusion on suggestiveness alone.¹² Suggestiveness stays in the analysis as the corrupting force against which the reliability factors are weighed.¹³

Against these factors the court weighs the corrupting effect of the suggestive procedure itself.¹⁵ In Biggers nearly every factor favored reliability, and the one that did not shows the weighing at work. The seven-month gap would be a seriously negative factor in most cases, but the victim had passed over every earlier suspect and photograph, so her record for reliability was a good one and she had already resisted whatever suggestiveness a showup carries.¹⁶

One feature of the Biggers record should not be over-read. Both the confrontation and the trial took place before Stovall, so the Court said a strict rule of exclusion would have no place in that case, because Stovall was the decision that first gave notice that suggestiveness was more than a matter to argue to the jury.¹⁷ For the same reason the parties had little incentive to make a record at trial on facts corroborating or undermining the identification, which left the Court with a state record that itself corroborated the identification.¹⁸ Those pre-Stovall facts explain why Biggers could not have excluded the evidence under a per se rule, yet they do not confine the totality test to old confrontations, because the Court later held that the test announced in Biggers governs even when the identification took place after Stovall.¹⁹ The next section takes up that decision.

The case on the other side of the line shows suggestion doing the work that memory should have done. In Foster v. California the night manager of a Western Union office viewed a lineup in which the defendant, a man of six feet, stood beside two men of about five feet five or six, and only the defendant wore a leather jacket like the robber's, yet the witness could not positively identify him.²⁰ A private conversation with the defendant left the witness still unsure, so the police arranged a second lineup seven to ten days later in which the defendant was the only person who had also appeared in the first, and this time the witness was “convinced.”²¹ The Court called the case a compelling example of unfair lineup procedures and held that the procedure so undermined the reliability of the identification that it violated due process.²² What separates the two cases is where the certainty came from. The Biggers victim brought a long, close view, a thorough description, and a record of refusing earlier suspects to the showup, so her certainty reflected memory. The Foster witness had no firm identification before the repeated displays, and the confidence arrived only after the police had put the same man in front of the witness again, so the display supplied the certainty that memory had not.

A fact pattern that already shows a suggestive, unnecessary, police-arranged display therefore calls for a search of the stem for facts on each of the five factors: how long and how closely the witness saw the culprit, how closely the witness was paying attention, what description the witness gave before the display, how sure the witness was at the display, and how much time had passed. Strong answers on most of those points move the case toward Biggers, and weak answers move it toward Foster, with the corrupting effect of the display weighed against whatever strength the factors show. The next section turns to the decision that settled the test, and the factor-by-factor treatment follows it.