Also known as: substantial likelihood of irreparable misidentification · irreparable misidentification · suggestive identification due process
Written by attorneys — see sources below.
A due process standard requiring exclusion of an eyewitness identification when the pretrial procedure was so impermissibly suggestive as to create a very substantial likelihood of irreparable misidentification.
Transit officer Ruiz showed passenger Dana a printed array of eight rideshare driver photos that prominently featured Leo. Dana identified Leo as her assailant. The court applied the due process standard and denied suppression because the array did not create a very substantial likelihood of irreparable misidentification.
After a bank robbery, police brought witness Violet Vidal to a stationhouse where she viewed only Virgil Volpe standing alone under bright lights. The court applied the due process standard and excluded the identification because the procedure created a very substantial likelihood of irreparable misidentification.
In 1965, after a jury trial in a Tennessee court, respondent was convicted of rape and was sentenced to 20 years’ imprisonment. The State’s evidence consisted in part of testimony concerning a station-house identification of respondent by the victim. The Tennessee Supreme Court affirmed. On certiorari, the judgment of the Tennessee Supreme Court was affirmed by an equally divided Court. Respondent then brought a federal habeas corpus action raising several claims. The District Court held that the claims were not barred and, after a hearing, held in an unreported opinion that the station-house identification procedure was so suggestive as to violate due process. The Court of Appeals affirmed. The Supreme Court granted certiorari to decide whether an affirmance by an equally divided Court is an actual adjudication barring subsequent consideration on habeas corpus, and, if not, whether the identification procedure violated due process. On the evening of January 22, 1965, a youth with a butcher knife grabbed the victim in the doorway to her kitchen. When the victim screamed, her 12-year-old daughter came out of her bedroom and also began to scream. The assailant directed the victim to tell her daughter to shut up or he would kill them both. She did so, and was then walked at knifepoint about two blocks along a railroad track, taken into a woods, and raped there. The whole incident took between 15 minutes and half an hour under a full moon. The victim gave the police a description of the assailant as being fat and flabby with smooth skin, bushy hair, a youthful voice, between 16 and 18 years old, between five feet ten inches and six feet tall, weighing between 180 and 200 pounds, and having a dark brown complexion. Over the course of the next seven months, she viewed suspects in her home or at the police station, some in lineups and others in showups, and was shown between 30 and 40 photographs but identified none of the suspects. On August 17, the police called her to the station to view respondent, who was being detained on another charge. Finding no one fitting respondent’s unusual physical description, they conducted a showup instead consisting of two detectives walking respondent past the victim. At the victim’s request, the police directed respondent to say shut up or I’ll kill you. The victim testified that she had no doubt about her identification. At trial the victim testified that she could see the assailant because there was enough light from the bedroom shining through. At the habeas corpus hearing, she stated that when she first laid eyes on him at the identification, she knew it was the individual because there was something about his face she did not think she could ever forget.
View caseA witness saw the suspect from her apartment window and later identified him in court without any police procedure. The court applied the due process standard and admitted the identification because no suggestive procedure created a very substantial likelihood of irreparable misidentification.
On August 15, 2008, around 3 a.m., Joffre Ullon reported to the Nashua, New Hampshire, Police Department that an African-American male was attempting to break into cars in the parking lot of his apartment building. Officer Nicole Clay responded and observed petitioner Barion Perry standing between two cars holding two car-stereo amplifiers, with a metal bat on the ground nearby. Perry stated that he had found the amplifiers on the ground. Nubia Blandón, Ullon's wife, had woken her neighbor Alex Clavijo and informed him that she had seen someone break into his car. Clavijo inspected his vehicle and found a shattered rear window along with missing speakers, amplifiers, a bat, and a wrench. Blandón later described to Clay and Clavijo from her fourth-floor apartment hallway that she had seen from her kitchen window a tall African-American man roaming the parking lot, circling Clavijo's car, opening the trunk, and removing a large box. When asked for a more specific description, Blandón pointed out the window to Perry, who was standing in the parking lot next to a police officer. Perry's arrest followed this identification. Approximately one month later, police presented Blandón with a photographic array including Perry's picture, but she was unable to identify him. Perry was charged in New Hampshire state court with one count of theft by unauthorized taking and one count of criminal mischief. Before trial, he moved to suppress Blandón’s identification on the ground that admitting it at trial would violate due process. Blandón witnessed what amounted to a one-person showup in the parking lot, Perry asserted, which all but guaranteed that she would identify him as the culprit. The New Hampshire Superior Court denied the motion after finding that the identification did not stem from an unnecessarily suggestive procedure manufactured by the police, as Blandón pointed to Perry spontaneously without inducement. At trial, Blandón and Clay testified regarding the out-of-court identification, and the jury convicted Perry of theft while acquitting him of criminal mischief. On appeal, the New Hampshire Supreme Court affirmed the conviction, holding that the Due Process Clause requires a trial court to assess the reliability of identification evidence before permitting a jury to consider it only where the police employ suggestive identification techniques. The United States Supreme Court granted certiorari. The question presented was whether the Due Process Clause requires a trial judge to conduct a preliminary assessment of the reliability of an eyewitness identification made under suggestive circumstances not arranged by the police.
View caseAfter an assault, police conducted a lineup where witness Vivian Velez identified Coleman. The court applied the due process standard and admitted the identification because the lineup was not so impermissibly suggestive as to create a very substantial likelihood of irreparable misidentification.
In July 1966, Casey Reynolds and his wife stopped their car on Green Springs Highway in Birmingham, Alabama, to change a flat tire. Three men approached from across the highway. One of them shot Reynolds from a short distance away. The three then ran up to within three or four feet. Reynolds arose from his stooped position and held on to his wife. Some two months later the petitioners were arrested, and later identified by Reynolds as two of the three men who had assaulted him and his wife. Reynolds testified at trial that he saw Coleman face to face during the assault and got a real good look at him. Reynolds identified petitioner Stephens as the gunman, stating that he saw him in the car lights while looking straight at him. The lineup of which petitioners complain was conducted on October 1, 1966, about two months after the assault and seven months before petitioners' trial. Reynolds identified petitioner Stephens spontaneously before the formal lineup even began. Petitioners were granted a preliminary hearing before a county judge a few days after their arrest. Alabama failed to provide them with appointed counsel at the hearing. At the conclusion of the hearing the petitioners were bound over to the grand jury, and their bond was set at $10,000. No record or transcript of any kind was made of the hearing. Less than a month later the grand jury returned an indictment against the petitioners, charging them with assault to commit murder. Petitioners were convicted in an Alabama Circuit Court of assault with intent to murder in the shooting of one Reynolds after he and his wife parked their car on an Alabama highway to change a flat tire. The Alabama Court of Appeals affirmed, 44 Ala. App. 429, 211 So. 2d 917 (1968), and the Alabama Supreme Court denied review, 282 Ala. 725, 211 So. 2d 927 (1968). We granted certiorari, 394 U. S. 916 (1969).
View caseAn undercover officer viewed a single photo of the suspect shown by a detective. The court applied the due process standard and admitted the identification because the procedure did not create a very substantial likelihood of irreparable misidentification under the totality of circumstances.
Jimmy Glover, a full-time undercover state police officer, and Henry Alton, an informant, went to an apartment building in Hartford, Connecticut, on May 5, 1970, for the purpose of purchasing narcotics. Glover and Alton entered the building and walked up to the third floor. Glover knocked at the door of one of the two apartments and a man opened the door about 12 to 18 inches. Glover observed the man for two to three minutes from a distance of two feet. The area was illuminated by natural light from a window in the third floor hallway. Glover asked for two things of narcotics and gave the man $20. The man closed the door. Soon the man returned and gave Glover two glassine bags containing what later proved to be heroin. During this entire transaction, which lasted approximately seven to eight minutes, the man stood within two feet of Glover, and was directly in front of him. At about 7:45 p.m. on May 7, 1970, Detective D'Onofrio and Officer Alton drove to the scene of the crime. D'Onofrio left Alton in the car and returned with a picture of respondent that he had obtained from the Records Division of the Hartford Police Department. The picture was a black and white police mug shot of respondent taken in April 1970. D'Onofrio showed the picture to Glover and asked if he was the man who had sold him the narcotics. Glover said that he was. Glover, when alone, viewed the photograph for the first time upon his return to headquarters on May 7 and identified the person shown as the one from whom he had purchased the narcotics. At the trial in January 1971, Glover testified that there was no doubt that the person shown in the picture was the same person who had sold him the narcotics. He also made a positive in-court identification of respondent. No objection was made by respondent to either the out-of-court or the in-court identification. The jury found respondent guilty of the offenses of possession and sale of heroin. He was sentenced to terms of not less than six nor more than nine years on each count, the terms to run concurrently. On appeal, the Supreme Court of Connecticut affirmed the convictions. Fourteen months later, respondent filed a petition for habeas corpus in the United States District Court for the District of Connecticut. The District Court dismissed respondent's petition. On appeal, the United States Court of Appeals for the Second Circuit reversed, with instructions to issue the writ unless the State gave notice of a desire to retry respondent and the new trial occurred within a reasonable time to be fixed by the District Judge. The Supreme Court granted certiorari.
View caseSecurity officer Harris showed store clerk Lena a computerized array and lingered on Diego's image. The court applied the due process standard and admitted the identification because the procedure did not rise to a very substantial likelihood of irreparable misidentification.
Appellants Harris and Hart were jointly tried and convicted by a jury of first-degree murder. The government's evidence rested principally on the testimony of an eyewitness to the homicide who stated that he was inside the Federal City Liquor Store at 943 Ninth Street, N.W., at approximately 2:30 on the afternoon of January 21, 1975, when appellants and two other men, one of whom became the murder victim, entered the store. They appeared to the witness to be somewhat intoxicated. An argument ensued between Hart and the victim regarding a gun, and Hart pulled an ice pick out of his coat pocket and held it in his hands towards the victim's face. Hart then told the victim you are going to get my gun or else I am gonna kill you. According to the eyewitness, Harris then stated let's kill the victim. When the manager of the liquor store insisted they take the argument outside, Hart, the victim, and an unidentified third man left the premises, crossed the street and turned into a nearby alley. Harris followed shortly thereafter but he did not enter the alley until after the unidentified third man exited the alley and proceeded down Ninth Street. The witness then left the liquor store and walked down the street to get a direct view of the alley. A scuffle had started between the three men. Harris grabbed the victim from the back. The man was wrestled to the ground by both defendants and Harris struck him on top of the head. Hart then proceeded to stab the victim repeatedly with the ice pick. A second government witness was outside the liquor store during the time in which the homicide was committed. He testified that as Hart crossed the street he was holding the victim behind his neck. He also recalled that as Harris walked past him he said he stole his pistol and he is going to kill him. On January 22, 1975, the day after the homicide, the witness was shown an array of 10 photographs and he positively identified appellant Hart as the man who had been holding the victim behind the neck. Before his grand jury testimony on February 21, 1975, the witness was shown the exact same array of photographs with the exception that appellant Hart's photograph had been removed and replaced by a picture of Harris, and on that occasion the witness made a positive identification of Harris. Harris challenged his conviction on the ground that the court at a pretrial suppression hearing erroneously denied his motion to suppress identification evidence, and both appellants challenged the denial of their motions for judgment of acquittal.
View caseAn identification must be excluded if the procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. The defense bears the initial burden of showing unnecessary suggestiveness. The prosecution then must demonstrate reliability under the totality of circumstances.
No. The Sixth Amendment right to counsel does not attach to photo identifications because they are not critical stages. The due process standard remains available to challenge unnecessarily suggestive arrays that create a very substantial likelihood of irreparable misidentification.
Courts consider the opportunity to view, degree of attention, accuracy of prior description, level of certainty, and time between crime and identification. If these factors show reliability despite some suggestiveness, the identification is admitted.
Yes. An in-court identification is admissible if the prosecution shows it rests on an independent source and is not the product of a procedure creating a very substantial likelihood of irreparable misidentification.