Also known as: unnecessarily suggestive · suggestive and conducive to misidentification · impermissibly suggestive identification · suggestive lineup · Brathwaite test
Written by attorneys · grounded in primary & secondary sources — see below
A due process standard that renders an eyewitness identification inadmissible when police procedures create a substantial likelihood of misidentification. The inquiry examines the totality of the circumstances to determine whether the identification nevertheless rests on an independent and reliable source.
Ursula Ureña was arrested for robbery. Police showed the victim a six-photo array that included only Ureña's picture with a distinctive scar matching the description. The victim identified her immediately. At trial the defense challenged the array on due process grounds. The court examined whether the procedure created a substantial likelihood of misidentification under the totality of the circumstances.
Uri Underwood was detained on suspicion of theft. Before any charges were filed, officers brought the store clerk to the station and presented Underwood alone in handcuffs. The clerk identified him. The defense moved to suppress the identification. The court assessed whether the show-up procedure created a substantial likelihood of misidentification under the totality of the circumstances.
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Uma Underwood, a data-center guard, glimpsed an intruder for a few seconds in dim light. Detectives later showed her only one company photo of the suspect. She said she was pretty sure it was him. The defense argued the display was unnecessarily suggestive. The court weighed the reliability factors to decide whether the identification remained admissible despite the procedure.
Umeko Uchida confronted a thief removing wiring at a construction site. Three months later police placed the suspect in a lineup wearing the exact reflective vest the witness had described. She identified him with certainty. The defense moved to suppress the identification. The court determined whether the suggestive lineup created a substantial likelihood of misidentification under the totality test.
Unity Underhill saw a man flee a burglary. While officers stood nearby, she spontaneously identified the suspect through her apartment window without any police prompting. The defense sought to exclude the identification. The court held that because police did not arrange the suggestive circumstances, no preliminary reliability screening was required.
Ursula Ung was arraigned on burglary charges and entered a plea. The next day police conducted a lineup without notifying her lawyer. A witness identified her. The defense moved to suppress the identification. The court assessed whether the lineup procedure created a substantial likelihood of misidentification under the totality of the circumstances.
Suppression is required only when the procedure creates a substantial likelihood of misidentification under the totality of the circumstances.
Supporting sources
No. Photo arrays are not critical stages requiring counsel under the Sixth Amendment. A due process challenge remains available if the array is unnecessarily suggestive and conducive to mistaken identification.
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The in-court identification is admissible if it has an independent source. Courts examine the witness's opportunity to view, degree of attention, accuracy of description, level of certainty, and time lapse to determine whether the taint is purged.
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No. Even an unnecessarily suggestive procedure may be admitted if the totality of the circumstances shows the identification is reliable. The focus remains on whether there is a substantial likelihood of misidentification.
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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…