Identification Limits

Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In criminal trials, the reliability and weight to be accorded an eyewitness identification ordinarily are for the jury to decide, guided by instructions by the trial judge and subject to judicial prerogatives under the rules of evidence to exclude otherwise relevant evidence whose probative value is substantially outweighed by its prejudicial impact or potential to mislead. At times, however, a defendant alleges an out-of-court identification in the presence of police is so flawed that it is inadmissible as a matter of fundamental justice under due process.1 These cases most commonly challenge such police-arranged procedures as lineups, showups, photographic displays, and the like.2 But not all cases have alleged careful police orchestration.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 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

Footnotes

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 v. New Hampshire, 565 U.S. 228, 237–38, 245–47 (2012).

5

“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 v. Biggers, 409 U.S. 188, 198 (1972). An identification process can be found to be suggestive regardless of police intent. Perry v. New Hampshire, 565 U.S. 228, 232 & n.1 (2012) (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 v. Denno, 388 U.S. 293 (1967) (suspect brought handcuffed to sole witness's hospital room where it was uncertain whether witness would survive her wounds).

6

Neil v. Biggers, 409 U.S. 188, 196–201 (1972); Manson v. Brathwaite, 432 U.S. 98, 114–17 (1977). 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 v. Denno, 388 U.S. 293 (1967).

7

The Court eschewed a per se exclusionary rule in due process cases at least as early as Stovall. 388 U.S. 293, 302 (1967). In Manson v. Brathwaite, 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. 98, 111–14 (1977). 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) (5-4) ( “[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 discussion of Assistance of Counsel under Amend. VI, “Lineups and Other Identification Situations.”