Manson Rejects Per Se Exclusion

Manson Rejects Per Se Exclusion

Biggers supplied the reliability factors, but its confrontation took place before Stovall. That left open what a court should do with an identification obtained after Stovall by a procedure that was both suggestive and unnecessary. The obvious candidate was a per se rule, meaning one that applies automatically whatever the surrounding circumstances, and under it the identification would be kept from the jury as soon as the court found the procedure suggestive and unnecessary. Manson v. Brathwaite was the first case in which the Court ruled on strictly post-Stovall identification evidence of that kind, and the Court chose reliability over automatic exclusion.¹

The facts explain why the question mattered. An undercover state police officer named Glover bought heroin at an apartment door in Hartford, standing within two feet of the seller for two to three minutes in natural light, and he described the seller to another officer within minutes of the sale.² Two days later Glover, by himself, looked at a lone photograph of Brathwaite and identified him as the seller, and at trial he repeated the identification in court.³ The State conceded that the procedure was suggestive, because only one photograph was used, and unnecessary, because no emergency existed, and it offered no explanation for skipping a photographic array or a lineup.⁴ With those points conceded, the only live issue was the remedy, and Brathwaite, with the court of appeals agreeing, urged a per se rule of exclusion.⁵

The Court framed the question as whether the Due Process Clause compels the exclusion, apart from any consideration of reliability, of pretrial identification evidence obtained by a police procedure that was both suggestive and unnecessary, and it answered no.⁶ It held that reliability is the "linchpin" in determining the admissibility of identification testimony, for confrontations before and after Stovall alike, and that courts measure reliability with the Biggers factors, weighing against them the corrupting effect of the suggestive identification itself.⁷ Suggestiveness and lack of necessity therefore open the inquiry, but they do not decide it. The Court read Stovall and Biggers as applying a fairness standard keyed to the totality of the circumstances, and it denied that those cases, singly or together, had created a strict exclusionary rule.⁸ On the facts, the Court found no substantial likelihood of misidentification and affirmed.⁹

The Court gave three reasons for refusing automatic exclusion, and the first comes from the purpose of the identification cases themselves.¹⁰ Wade, Gilbert, and Stovall were driven by the concern that a witness usually describes a stranger encountered under stress, and that the witness's memory can be distorted by the circumstances or by later police actions, so the jury should hear eyewitness testimony only if it has aspects of reliability.¹¹ Both the per se rule and the totality approach respond to that concern, but the per se rule goes too far, because it keeps reliable and relevant evidence from the jury automatically and without regard to anything that offsets the suggestion.¹² The mechanism is visible in the facts. A suggestive display raises the risk that a witness will pick the person shown instead of the person remembered, yet a witness whose own observation was long, close, and attentive may have picked the right person with or without the display. Excluding that identification protects the jury from no error and removes some of the best evidence of who committed the crime.

The second reason is deterrence, and here the Court conceded something to the other side: the per se rule has the more significant deterrent effect.¹³ The totality approach still influences police behavior, because officers who use an unnecessarily suggestive procedure risk having the resulting identification found unreliable and excluded.¹⁴ No officer can know in advance whether the witness's record will be strong enough to survive that scrutiny, so an officer who skips a lineup for convenience is gambling with the prosecution's central evidence. That residual deterrence, weighed with the other two interests, did not justify the more drastic rule.

The third reason concerns the administration of justice. A rule that denies the trier of fact reliable evidence may, on occasion, let the guilty go free, and its rigidity makes error by the trial judge more likely than a flexible inquiry would.¹⁵ The remedy compounds the problem, because when an identification was reliable despite an unnecessarily suggestive procedure, reversal is a "Draconian sanction."¹⁶ A conviction resting on trustworthy evidence would be undone to punish police conduct that did not produce a mistaken identification. Perry v. New Hampshire later restated these points: automatic exclusion goes too far, and even when the police use a suggestive and unnecessary procedure, suppression is not the inevitable consequence.¹⁷

The Court's own application of the factors shows the weighing at work, and the next sections take up each factor separately. Glover had a close, unhurried look, was a trained officer on duty and so more than a casual observer, gave a prompt and detailed description, was positive in his identification, and viewed the photograph only two days after the sale.¹⁸ Against those indicators the Court weighed the display itself and found little pressure to accept its suggestion, because Glover examined the photograph alone and at his leisure, with no one present to push him toward an answer.¹⁹ Foster shows the same test producing the opposite result. There the witness failed to identify the defendant at one lineup, identified him at a second, and finally made a positive identification at trial, and the Court held the procedure so suggestive that it violated due process.²⁰ Both cases involved police displays that were suggestive, so suggestiveness cannot be what separates them. The difference lies in where the confidence came from. Glover's certainty rested on a long, close look and a prompt description, so it reflected memory, while the Foster witness had no firm identification until the police put the same man in front of the witness again, so the display supplied the certainty.

Two other voices in the case show what the majority declined to do. Justice Marshall, joined by Justice Brennan, dissented: he regarded a single photograph as inherently suggestive, thought the police should have used a proper lineup, and concluded that the reliability test does not adequately protect against the dangers of suggestion.²¹ The concern has a concrete form, because the certainty factor that the test counts can itself be a product of the display, as the repeated lineups in Foster showed. A concurring Justice agreed with the result and added that fashioning new rules of exclusion is better left to legislatures than to the Court.²² The majority's rule controls, and it is the rule the later cases apply.

Students lose this issue when they treat a suggestive and unnecessary procedure as the end of the analysis. Those two findings open the reliability inquiry and do not decide it, so the court must still run the five factors against the corrupting effect of the display. The opposite error assumes that strong reliability always rescues the evidence, and Foster shows that a record without independent reliability leaves the suggestion unanswered.