Also known as: unnecessary suggestiveness · impermissibly suggestive
Written by attorneys · grounded in primary & secondary sources — see below
A feature of a pretrial identification procedure that singles out one suspect in a manner likely to produce a mistaken identification. The procedure violates due process when police arrange the suggestiveness and the totality of the circumstances shows a substantial likelihood of irreparable misidentification.
Ulysses Usher was shown a set of booking photographs after his arrest on robbery charges. Officers displayed only his image repeatedly while the witness viewed the array alone. The witness selected Usher. Because the procedure occurred before formal charges, no Sixth Amendment violation arose even though the repeated display of one photograph created unnecessary suggestiveness.
Ulf Ulfsson was brought to a hospital room in handcuffs for a one-on-one viewing by the victim of a stabbing. No lineup was attempted even though other suspects were available. The victim identified Ulfsson. The showup was unnecessarily suggestive, yet because it occurred before formal proceedings the due-process totality test governed admissibility.
Select any source to read its text and confirm it supports the definition.
Uri Underwood was taken in handcuffs to a victim's hospital room shortly after a home invasion. Officers presented him alone for identification while the victim was sedated and recovering from multiple stab wounds. The victim identified Underwood. The unnecessarily suggestive showup required courts to weigh reliability factors under the due-process totality test.
Una Ueda viewed a single highlighted photograph extracted from security footage two days after a shoplifting incident. The image was presented without fillers or an array by store security. She identified the person in the photo. The display was suggestive, yet reliability factors under the totality test determined whether due process required exclusion.
Una Unger was placed in a post-arraignment lineup at the station after counsel had been appointed. Officers did not notify her lawyer of the procedure. The witness identified Unger. The unnecessarily suggestive lineup still required separate due-process reliability analysis even though counsel absence supplied an independent suppression ground.
Ulysses Ulrich stood in a lineup wearing the reflective safety vest described by the witness while the other participants wore ordinary clothing. Three months had passed since the theft. The witness identified Ulrich with certainty. The distinctive clothing singled him out, creating unnecessary suggestiveness that required reliability analysis under due-process standards.
The defendant must show that the identification procedure was unnecessarily suggestive and that the suggestiveness created a substantial likelihood of irreparable misidentification under the totality of the circumstances. Both elements are required.
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No. The Sixth Amendment right to counsel attaches only after formal adversary proceedings begin. Photo arrays are not critical stages even after charges are filed because the defendant is not present.
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It does not. Even an unnecessarily suggestive procedure arranged by police requires a further showing of substantial likelihood of misidentification under the totality of the circumstances before exclusion is required.
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Courts weigh the witness's opportunity to view the perpetrator, degree of attention, accuracy of any prior description, level of certainty at the confrontation, and the time between the crime and the identification.
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…confrontation . . . ." 388 U. S., at 227. The Due Process Clause of the Fifth and Fourteenth Amendments forbids a lineup that is unnecessarily suggestive and conducive to irreparable mistaken identification. Stovall v. Denno , 388 U. S. 293; Foster v. California , 394 U. S. 440.[^maj-8] When a person has not been formally charged with a…