admitting identification where witness was shown lightly complected suspect with two darkly complected persons; witness originally described the age of the criminal to be significantly greater than that of the suspect; and at the time of the line up witness was not completely sure that he chose the right person
How later courts described this case
- admitting identification where witness was shown lightly complected suspect with two darkly complected persons; witness originally described the age of the criminal to be significantly greater than that of the suspect; and at the time of the line up witness was not completely sure that he chose the right person
- “Even where the right to counsel is not applicable, . . . ‘due process protects the accused against the introduction of evidence of, or tainted by, unreliable . . . identifications obtained through unnecessarily suggestive procedures.’”
- “[a] defendant is denied due process only when [] evidence is so unreliable that its introduction renders a trial unfair.”
Written by the judges who cited it.
The opinion
MERRITT, Circuit Judge,
dissenting.
In each of these habeas corpus cases from Kentucky, there is a serious question concerning the reliability of the courtroom *254 identification of the defendant as the perpetrator of the crime. In both, the identification testimony constitutes the only substantial evidence linking the defendant with the crime. In both, the state trial judge denied the request of defense counsel for a hearing on the question out of the presence of the jury. In such circumstances, I would follow Judge Aldisert’s opinion for the Third Circuit in United States v. Driber, 546 F.2d 18 (1976), holding that due process requires a hearing out of the presence of the jury where serious identification questions are present. Otherwise, defense counsel is paralyzed in his efforts to defend his client. He is in the untenable position, as the Supreme Court noted in United States v. Wade, 388 U.S. 218, 241 , 87 S.Ct. 1926, 1939 , 18 L.Ed.2d 1149 (1967), of trying by cross-examination of the identification witness “to discover and reveal unfairness, while bolstering the . courtroom identification by bringing out and dwelling upon his prior identification.”