Identification in Pre-Trial Process

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All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In criminal trials, the jury usually decides the reliability and weight to be accorded an eyewitness identification, guided by instructions from the trial judge and subject to judicial authority under the rules of evidence to exclude overly prejudicial or misleading evidence. At times, however, a defendant alleges that an out-of-court identification in the presence of police is so flawed that it is inadmissible as a matter of fundamental justice under the Due Process Clause.1 These cases most commonly challenge police-arranged procedures such as lineups, showups, and photographic displays,2 but some challenge identifications with less police involvement.3

The Court generally disfavors judicial suppression of eyewitness identifications on due process grounds in lieu of having identification testimony tested in the normal course of the adversarial process.4 Two elements are required for due process-based suppression. First, law enforcement officers must have participated in an identification process that was both suggestive and unnecessary.5 Second, the identification procedures must have created a substantial prospect for misidentification. Determination of these elements is made by examining the “totality of the circumstances” of a case.6 The Court has not recognized any per se rule for excluding an eyewitness identification on due process grounds.7 Defendants have had difficulty meeting the Court’s standards: Only one challenge has been successful.8

1: A hearing by the trial judge on whether an eyewitness identification should be barred from admission is not constitutionally required to be conducted out of the presence of the jury. Watkins v. Sowders, 449 U.S. 341 (1981).
2: E.g., Manson v. Brathwaite, 432 U.S. 98, 114–17 (1977) (only one photograph provided to witness); Neil v. Biggers, 409 U.S. 188, 196–201 (1972) (showup in which police walked defendant past victim and ordered him to speak); Coleman v. Alabama, 399 U.S. 1 (1970) (lineup); Foster v. California, 394 U.S. 440 (1969) (two lineups, in one of which the suspect was sole participant above average height, and arranged one-on-one meeting between eyewitness and suspect); Simmons v. United States, 390 U.S. 377 (1968) (series of group photographs each of which contained suspect); Stovall v. Denno, 388 U.S. 293 (1967) (suspect brought to witness’s hospital room).
3: Perry v. New Hampshire, 565 U.S. 228 (2012) (prior to being approached by police for questioning, witness by chance happened to see suspect standing in parking lot near police officer; no manipulation by police alleged).
4: See Perry, 565 U.S. at 237–38, 245–47.
5: The Court stated; “Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous.” Neil, 409 U.S. at 198. An identification process can be found to be suggestive regardless of police intent. Perry, 565 U.S. at 232 & n.1 (circumstances of identification found to be suggestive but not contrived; no due process relief). The necessity of using a particular procedure depends on the circumstances. E.g., Stovall, 388 U.S. 293 (suspect brought handcuffed to sole witness’s hospital room where it was uncertain whether witness would survive her wounds).
6: Neil, 409 U.S. at 196–201; Manson, 432 U.S. at 114–17. The factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the suspect at the time of the crime, the witness’s degree of attention, the accuracy of the witness’s prior description of the suspect, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. See also Stovall, 388 U.S. 293.
7: The Court eschewed a per se exclusionary rule in due process cases at least as early as Stovall, 388 U.S. at 302. In Manson, the Court evaluated application of a per se rule versus the more flexible, ad hoc “totality of the circumstances” rule, and found the latter to be preferable in the interests of deterrence and the administration of justice. 432 U.S. at 111–14. The rule in due process cases differs from the per se exclusionary rule adopted in the Wade-Gilbert line of cases on denial of the right to counsel under the Sixth Amendment in post-indictment lineups. Cases refining the Wade-Gilbert holdings include Kirby v. Illinois, 406 U.S. 682 (1972) (right to counsel inapplicable to post-arrest police station identification made before formal initiation of criminal proceedings; due process protections remain available) and United States v. Ash, 413 U.S. 300 (1973) (right to counsel inapplicable at post-indictment display of photographs to prosecution witnesses out of defendant’s presence; record insufficient to assess possible due process claim).
8: Foster v. California, 394 U.S. 440 (1969) ( “[T]he pretrial confrontations [between the witness and the defendant] clearly were so arranged as to make the resulting identifications virtually inevitable.” ). In a limited class of cases, pretrial identifications have been found to be constitutionally objectionable on a basis other than due process. See Amdt6.6.3.4 Lineups and Other Identification Situations and Right to Counsel.