substantial likelihood of irreparable misidentification
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Also known as:likelihood of irreparable misidentification · irreparable misidentification
Written by attorneys · grounded in primary & secondary sources — see below
A due process standard that bars admission of an eyewitness identification obtained through an unnecessarily suggestive procedure. The standard requires courts to determine whether the procedure created a very substantial likelihood that the witness will misidentify the defendant at trial and that the resulting error cannot be corrected through other means such as cross-examination.
Sources & Authorities
How it applies
Common Examples
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Photo Array After Indictment
Federal agents showed branch manager Maria Ortiz a binder of employee photos after Raj Patel had been indicted. Patel's photo carried a sticky tab. Ortiz identified Patel as the person who altered records. Patel moved to suppress on Sixth Amendment grounds. The court denied the motion because photographic identifications are not a critical stage requiring counsel, though Patel could still raise a due process claim if the tab rendered the procedure unnecessarily suggestive and created a substantial likelihood of irreparable misidentification.
Suggestive Showup in Dim Light
Witness Maria viewed a single suspect under poor lighting two days after a brief encounter. She identified Leon as the person dumping hazardous materials. Leon challenged the identification. The court applied the totality-of-circumstances test and found no substantial likelihood of irreparable misidentification because Maria's opportunity to view and her certainty outweighed the suggestiveness.
Select any source to read its text and confirm it supports the definition.
Cases
Casebooks
Neil v. Biggers409 U.S. 188 (1972)
Spontaneous Identification at Station
Witness saw a man breaking into a car and later identified him at the police station without any arranged procedure. The defendant argued the setting was suggestive. The court held that due process scrutiny applies only to police-arranged identifications and found no substantial likelihood of irreparable misidentification on these facts.
Perry v. New Hampshire132 S. Ct. 716, 738-739 (2012)
Lineup After Formal Charges
After indictment, police conducted a live lineup without counsel present. Witness Reynolds identified Coleman as one of his attackers. Coleman moved to suppress. The court denied relief because the lineup was not so impermissibly suggestive as to create a substantial likelihood of irreparable misidentification and Reynolds's identification rested on his original observation.
Coleman v. Alabama399 U.S. 1 (1970)
Single Photo Display to Officer
An undercover officer viewed a single photo of Brathwaite after purchasing drugs. The officer identified Brathwaite at trial. Brathwaite sought suppression. The court upheld admission because the officer's prolonged close-range observation and accurate description made the risk of irreparable misidentification insubstantial despite the suggestive single-photo procedure.
Manson v. Brathwaite432 U.S. 98 (1977)
Color Photo in Array
Officers showed Maria a sheet of driver photos after she witnessed illegal dumping. Leon's booking photo was the only one in color. Maria selected it. Leon moved to suppress. The court found the color distinction suggestive but concluded that Maria's opportunity to observe and her certainty left no substantial likelihood of irreparable misidentification.
Harris v. United States375 A.2d 505, 508 (D.C. 1977)
Common questions
Frequently Asked
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Does the substantial likelihood standard apply to all identification procedures?+
No. The standard applies only when police arrange an identification procedure that is unnecessarily suggestive. Spontaneous identifications not arranged by law enforcement fall outside the due process inquiry.
Supporting sources
What factors determine whether a suggestive procedure creates a substantial likelihood of irreparable misidentification?+
Courts examine the totality of the circumstances, including the witness's opportunity to view the perpetrator, degree of attention, accuracy of any prior description, level of certainty at the identification, and the time between the crime and the identification.
Supporting sources
Can a photo array ever violate the Sixth Amendment right to counsel?+
No. Photographic identifications are not considered a critical stage of the prosecution, so the right to counsel does not attach even after indictment. Any challenge must proceed under the due process substantial-likelihood standard instead.
Supporting sources
If an identification procedure is suggestive, must the court automatically exclude the evidence?+
No. Even when suggestiveness is shown, the court must still assess reliability under the totality of the circumstances. Strong indicia of reliability can overcome suggestiveness and permit admission of the identification.
Supporting sources
413 U.S. 300 (1973)Criminal Procedure
…Due Process Clause of the Fifth Amendment still applies. If a photographic identification is so suggestive as to create a very substantial likelihood of irreparable misidentification, it may violate due process. See Simmons v. United States , 390 U. S. 377 (1968); Foster v. California , 394 U. S. 440 (1969); Coleman v. Alabama , 399 U. S. 1 (1970). In this case,…