# Manson v. Brathwaite

> Supreme Court of the United States · June 16, 1977 · 432 U.S. 98

URL: https://www.frixlaw.com/law-library/cases/9426870

## Case

- **Full name:** Manson, Correction Commissioner v. Brathwaite
- **Court:** Supreme Court of the United States
- **Decided:** June 16, 1977
- **Citations:** 432 U.S. 98; 97 S. Ct. 2243; 53 L. Ed. 2d 140; 1977 U.S. LEXIS 116
- **Precedential status:** Published
- **Opinion:** Dissent by Marshall
- **Judges:** Blackmun, Burger, Stewart, White, Powell, Rehnquist, Stevens, Marshall, Brennan
- **Cited by:** 4,694 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Declined to follow by Commonwealth v. Johnson, 420 Mass. 458 (1995).
- Negative treatments: 1
- Distinguished by: 8
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9426870

## How later opinions describe it (automated extraction)

- holding that a determination regarding the reliability, i.e., correctness, of an identification procedure turns on whether the process was imper-missibly suggestive and therefore created a substantial likelihood of irreparable misiden-tification
- finding that the indicators of the witness’s ability to make an accurate identification, including correct identification of race, height, hair, and facial structure, were not outweighed by the corrupting effect of the challenged identification
- holding identification reliable where the identifying police officer was “not a casual or passing observer” but rather “knew that his claimed observations would be subject later to close scrutiny and examination at any trial”
- finding that the first factor favored a reliability finding where the witness had two to three minutes to view assailant and opened the door for him twice, looking him directly in the eyes and having a short conversation
- finding no due process violation because, among other reasons, the witness was more than a casual observer whose attentiveness to the defendant’s appearance suggested that the challenged identification was reliable

## Opinion text

Mb. Justice Marshall, with whom Mb. Justice Brennan joins,
dissenting.
Today’s decision can come as no surprise to those who have been watching the Court dismantle the protections against mistaken eyewitness testimony erected a decade ago in United States v. Wade, 388 U. S. 218 (1967); Gilbert v. California, 388 U. S. 263 (1967); and Stovall v. Denno, 388 U. S. 293 (1967). But it is still distressing to see the Court virtually ignore the teaching of experience embodied in those decisions and blindly uphold the conviction of a defendant who may well be innocent.
*119 I
The magnitude of the Court’s error can be seen by analyzing the cases in the Wade trilogy and the decisions following it. The foundation of the Wade trilogy was the Court’s recognition of the “high incidence of miscarriage of justice” resulting from the admission of mistaken eyewitness identification evidence at criminal trials. United States v. Wade, supra, at 228 . Relying on numerous studies made over many years by such scholars as Professor Wigmore and Mr. Justice Frankfurter, the Court concluded that “[t]he vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.” Ibid. It is, of course, impossible to control one source of such errors — the faulty perceptions and unreliable memories of witnesses — except through vigorously contested trials conducted by diligent counsel and judges. The Court in the Wade cases acted, however, to minimize the more preventable threat posed to accurate identification by “the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification.” Ibid.
The Court did so in Wade and Gilbert v. California by prohibiting the admission at trial of evidence of pretrial confrontations at which an accused was not represented by counsel. Further protection was afforded by holding that an in-court identification following an uncounseled lineup was allowable only if the prosecution could clearly and convincingly demonstrate that it was not tainted by the constitutional violation. Only in this way, the Court held, could confrontations fraught with the danger of misidentification be made fairer, and could Sixth Amendment rights to assistance of counsel and confrontation of witnesses at trial be effectively preserved. The crux of the Wade decisions, however, was the unusual threat to the truth-seeking process posed by the frequent untrustworthiness of eyewitness identification *120 testimony. This, combined with the fact that juries unfortunately are often unduly receptive to such evidence, 1 is the fundamental fact of judicial experience ignored by the Court today.
Stovall v. Denno , while holding that the Wade prophylactic rules were not retroactive, was decided at the same time and reflects the same concerns about the reliability of identification testimony. Stovall recognized that, regardless of Sixth Amendment principles, “the conduct of a confrontation” may be “so unnecessarily suggestive and conducive to irreparable mistaken identification” as to deny due process of law. 388 U. S., at 301-302. The pretrial confrontation in Stovall was plainly suggestive, 2 and evidence of it was introduced at trial along with the witness’ in-court identification. The Court ruled that there had been no violation of due process, however, because the unusual necessity for the procedure 3 outweighed the danger of suggestion.
Stovall thus established a due proceess right of criminal suspects to be free from confrontations that, under all the circumstances, are unnecessarily suggestive. The right was enforceable by exclusion at trial of evidence of the constitutionally invalid identification. Comparison with Wade and Gilbert confirms this interpretation. Where their Sixth *121 Amendment holding did not apply, Stovall found an analogous Fourteenth Amendment right to a lineup conducted in a fundamentally fair manner. This interpretation is reinforced by the Court’s statement that “a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it.” 388 U. S., at 302 (emphasis added). Significantly, several years later, Stovall was viewed in precisely the same way, even as the Court limited Wade and Gilbert to post-indictment confrontations: “The Due Process Clause . . . 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 .” Kirby v. Illinois, 406 U. S. 682, 691 (1972) (emphasis added). 4
The development of due process protections against mistaken identification evidence, begun in Stovall , was continued in Simmons v. United States, 390 U. S. 377 (1968). There, the Court developed a different rule to deal with the admission of in-court identification testimony that the accused claimed had been fatally tainted by a previous suggestive confrontation. In Simmons , the exclusionary effect of Stovall had already been accomplished, since the prosecution made no use of the suggestive confrontation. Simmons , therefore, did not deal with the constitutionality of the pretrial identification procedure. The only question was the impact of the *122 Due Process Clause on an in-court identification that was not itself unnecessarily suggestive. Simmons held that due process was violated by the later identification if the pretrial procedure had been “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentifi-cation.” 390 U. S., at 384 . This test focused, not on the necessity for the challenged pretrial procedure, but on the degree of suggestiveness that it entailed. In applying this test, the Court understandably considered' the circumstances surrounding the witnesses’ initial opportunity to view the crime. Finding that any suggestion in the pretrial confrontation had not affected the fairness of the in-court identification, Simmons rejected petitioner’s due process attack on his conviction.
Again, comparison with the Wade cases is instructive. The inquiry mandated by Simmons is similar to the independent-source test used in Wade where an in-court identification is sought following an uncounseled lineup. In both cases, the issue is whether the witness is identifying the defendant solely on the basis of his memory of events at the time of the crime, or whether he is merely remembering the person he picked out in a pretrial procedure. Accordingly, in both situations, the relevant inquiry includes factors bearing on the accuracy of the witness’ identification, including his opportunity to view the crime.
Thus, Stovall and Simmons established two different due process tests for two very different situations. Where the prosecution sought to use evidence of a questionable pretrial identification, Stovall required its exclusion, because due process had been violated by the confrontation, unless the necessity for the unduly suggestive procedure outweighed its potential for generating an irreparably mistaken identification. The Simmons test, on the other hand, was directed to ascertaining due process violations in the introduction of in-court identification testimony that the defendant claimed was tainted by pretrial procedures. In the latter situation, a *123 court could consider the reliability of the identification under all the circumstances. 5
This distinction between Stovall and Simmons was preserved in two succeeding cases. Foster v. California, 394 U. S. 440 (1969), like Stovall , involved both unduly suggestive pretrial procedures, evidence of which was introduced at trial, and a tainted in-court identification. Accordingly, Foster applied the Stovall test, 394 U. S., at 442 , and held that the police “procedure so undermined the reliability of the eyewitness identification as to violate due process.” Id., at 443 (emphasis added). In contrast, in Coleman v. Alabama, 399 U. S. 1 (1970), where the witness’ pretrial identification was not used to bolster his in-court identification, the plurality opinion applied the test enunciated in Simmons . It concluded that an in-court identification did not violate due process because it did not stem from an allegedly suggestive lineup.
The Court inexplicably seemed to erase the distinction between Stovall and Simmons situations in Neil v. Biggers, 409 U. S. 188 (1972). In Biggers there was a pretrial confrontation that was clearly both suggestive and unnecessary. 6 Evidence of this, together with an in-court identification, was admitted at trial. Biggers was, in short, a case plainly cast in the Stovall mold. Yet the Court, without explanation or apparent recognition of the distinction, applied the Simmons *124 test. The Court stated: “[T]he primary evil to be avoided is 'a very substantial likelihood of irreparable misidentification.' Simmons v. United States, 390 U. S., at 384 . ... It is the likelihood of misidentification which violates a defendant's right to due process . . . 409 U. S., at 198 . While this statement accurately describes the lesson of Simmons , it plainly ignores the teaching of Stovall and Foster that an unnecessarily suggestive pretrial confrontation itself violates due process.
But the Court did not simply disregard the due process analysis of Stovall . It went on to take the Simmons standard for assessing the constitutionality of an in-court identification— “ 'a very substantial likelihood of irreparable misidentification' ” — and transform it into the “standard for the admissibility of testimony concerning [an] out-of-court identification.” 409 U. S., at 198 . It did so by déleting the word “irreparable” from the Simmons formulation. This metamorphosis could be accomplished, however, only by ignoring the fact that Stovall , fortified only months earlier by Kirby v. Illinois , see supra, at 121, had established a test for precisely the same situation that focused on the need for the suggestive procedure. It is not surprising that commentators almost unanimously mourned the demise of Stovall in the Biggers decision. 7
II
Apparently, the Court does not consider Biggers controlling in this case. I entirely agree, since I believe that Biggers *125 was wrongly decided. The Court, however, concludes that Biggers is distinguishable because it, like the identification decisions that preceded it, involved a pre-Stovall confrontation, and because a paragraph in Biggers itself, 409 U. S., at 198-199 , seems to distinguish between pre- and post-Stovall confrontations. Accordingly, in determining the admissibility of the post-Stovall identification in this case, the Court considers two alternatives, a per se exclusionary rule and a totality-of-the-circumstances approach. Ante, at 110-111. The Court weighs three factors in deciding that the totality approach, which is essentially the test used in Biggers , should be applied. Ante, at 111-113. In my view, the Court wrongly evaluates the impact of these factors.
First, the Court acknowledges that one of the factors, deterrence of police use of unnecessarily suggestive identification procedures, favors the per se rule. Indeed, it does so heavily, for such a rule would make it unquestionably clear to the police they must never use a suggestive procedure when a fairer alternative is available. I have no doubt that conduct would quickly conform to the rule.
Second, the Court gives passing consideration to the dangers of eyewitness identification recognized in the Wade trilogy. It concludes, however, that the grave risk of error does not justify adoption of the per se approach because that would too often result in exclusion of relevant evidence. In my view, this conclusion totally ignores the lessons of Wade . The dangers of mistaken identification are, as Stovall held, simply too great to permit unnecessarily suggestive identifications. Neither Biggers nor the Court’s opinion today points to any contrary empirical evidence. Studies since Wade have only reinforced the validity of its assessment of the dangers of identification testimony. 8 While the Court is “content to *126 rely on the good sense and judgment of American juries,” ante, at 116, the impetus for Stovall and Wade was repeated miscarriages of justice resulting from juries’ willingness to credit inaccurate eyewitness testimony.
Finally, the Court errs in its assessment of the relative impact of the two approaches on the administration of justice. The Court relies most heavily on this factor, finding that “reversal is a Draconian sanction” in cases where the identification is reliable despite an unnecessarily suggestive procedure used to obtain it. Relying on little more than a strong distaste for “inflexible rules of exclusion,” the Court rejects the per se test. Ante, at 113. In so doing, the Court disregards two significant distinctions between the per se rule advocated in this case and the exclusionary remedies for certain other constitutional violations.
First, the per se rule here is not “inflexible.” Where -evidence is suppressed, for example, as the fruit of an unlawful search, it may well be forever lost to the prosecution. Identification evidence, however, can by its very nature be readily and effectively reproduced. The in-court identification, permitted under Wade and Simmons if it has a source independent of an uncounseled or suggestive procedure, is one example. Similarly, when a prosecuting attorney learns that there has been a suggestive confrontation, he can easily arrange another *127 lineup conducted under scrupulously fair conditions. Since the same factors are evaluated in applying both the Court’s totality test and the Wade-Simmons independent-source inquiry, any identification which is “reliable” under the Court’s test will support admission of evidence concerning such a fairly conducted lineup. The evidence of an additional, properly conducted confrontation will be more persuasive to a jury, thereby increasing the chance of a justified conviction where a reliable identification was tainted by a suggestive confrontation. At the same time, however, the effect of an unnecessarily suggestive identification — which has no value whatsoever in the law enforcement process — will be completely eliminated.
Second, other exclusionary rules have been criticized for preventing jury consideration of relevant and usually reliable evidence in order to serve interests unrelated to guilt or innocence, such as discouraging illegal searches or denial of counsel. Suggestively obtained eyewitness testimony is excluded, in contrast, precisely because of its unreliability and concomitant irrelevance. Its exclusion both protects the integrity of the truth-seeking function of the trial and discourages police use of needlessly inaccurate and ineffective investigatory methods.
Indeed, impermissibly suggestive identifications are not merely worthless law enforcement tools. They pose a grave threat to society at large in a more direct way than most governmental disobedience of the law, see Olmstead v. United States, 277 U. S. 438, 471 ; 485 (1928) (Brandéis, J., dissenting). For if the police and the public erroneously conclude, on the basis of an unnecessarily suggestive confrontation, that the right man has been caught and convicted, the real outlaw must still remain at large. Law enforcement has failed in its primary function and has left society unprotected from the depredations of an active criminal.
*128 For these reasons, I conclude that adoption of the per se rule would enhance, rather than detract from, the effective administration of justice. In my view, the Court’s totality test will allow seriously unreliable and misleading evidence to be put before juries. Equally important, it will allow dangerous criminals to remain on the streets while citizens assume that police action has given them protection. According to my calculus, all three of the factors upon which the Court relies point to acceptance of the per se approach.
Even more disturbing than the Court’s reliance on the totality test, however, is the analysis it uses, which suggests a reinterpretation of the concept of due process of law in criminal cases. The decision suggests that due process violations in identification procedures may not be measured by whether the government employed procedures violating standards of fundamental fairness. By relying on the probable accuracy of a challenged identification, instead of the necessity for its use, the Court seems to be ascertaining whether the defendant was probably guilty. Until today, I had thought that “Equal justice under law” meant that the existence of constitutional violations did not depend on the race, sex, religion, nationality, or likely guilt of the accused. The Due Process Clause requires adherence to the same high standard of fundamental fairness in dealing with every criminal defendant, whatever his personal characteristics and irrespective of the strength of the State’s case against him. Strong evidence that the defendant is guilty should be relevant only to the determination whether an error of constitutional magnitude was nevertheless harmless beyond a reasonable doubt. See Chapman v. California, 386 U. S. 18 (1967). By importing the question of guilt into the initial determination of whether there was a constitutional violation, the apparent effect of the Court’s decision is to undermine the protection afforded by the Due Process Clause. “It is therefore important to note that the state courts remain free, in interpreting state constitutions, to *129 guard against the evil clearly identified by this case.” Oregon v. Mathiason, 429 U. S. 492, 499 (1977) (Marshall, J., dissenting) . 9
III
Despite my strong disagreement with the Court over the proper standards to be applied in this case, I am pleased that its application of the totality test does recognize the continuing vitality of Stovall . In assessing the reliability of the identification, the Court mandates weighing “the corrupting effect of the suggestive identification itself” against the “indicators of [a witness'] ability to make an accurate identification.” Ante, at 114, 116. The Court holds, as Neil v. Biggers failed to, that a due process identification inquiry must take account of the suggestiveness of a confrontation and the likelihood that it led to misidentification, as recognized in Stovall and Wade . Thus, even if a witness did have an otherwise adequate opportunity to view a criminal, the later use of a highly suggestive identification procedure can render his testimony inadmissible. Indeed, it is my view that, assuming applicability of the totality test enunciated by the Court, the facts of the present case require that result.
I consider first the opportunity that Officer Glover had to view the suspect. Careful review of the record shows that he could see the heroin seller only for the time it took to speak three sentences of four or five short words, to hand over some money, Tr. 29-30, and later after the door reopened, to receive the drugs in return, id., at 30, 31-32. The entire face-to-face transaction could have taken as little as 15 or 20 seconds. But during this time, Glover’s attention was not focused exclusively on the seller’s face. He observed that the door *130 was opened 12 to 18 inches, id., at 29, that there was a window in the room behind the door, id., at 33, and, most importantly, that there was a woman standing behind the man, id., at 29, 30. Glover was, of course, also concentrating on the details of the transaction — he must have looked away from the seller’s face to hand him the money and receive the drugs. The observation during the conversation thus may have been as brief as 5 or 10 seconds.
As the Court notes, Glover was a police officer trained in and attentive to the need for making accurate identifications. Nevertheless, both common sense and scholarly study indicate that while a trained observer such as a police officer “is somewhat less likely to make an erroneous identification than the average untrained observer, the mere fact that he has been so trained is no guarantee that he is correct in a specific case. His identification testimony should be scrutinized just as carefully as that of the normal witness.” Wall, supra, n. 1, at 14; see also Levine & Tapp, supra, n. 8, at 1088. Moreover, “identifications made by policemen in highly competitive activities, such as undercover narcotic agents . . . , should be scrutinized with special care.” Wall, supra, n. 1, at 14. Yet it is just such a searching inquiry that the Court fails to make here.
Another factor on which the Court relies — the witness’ degree of certainty in making the identification — is worthless as an indicator that he is correct. 10 Even if Glover had been unsure initially about his identification of respondent’s picture, by the time he was called at trial to present a key piece of evidence for the State that paid his salary, it is impossible to imagine his responding negatively to such questions as “is there any doubt in your mind whatsoever” that the identification was correct. Tr. 34, 41-42. As the Court noted in Wade: “ 'It is a matter of common experience that, once a *131 witness has picked out the accused at the [pretrial confrontar tion], he is not likely to go back on his word later on.’ ” 388 U. S., at 229, quoting Williams & Hammelmann, Identification Parades — I, Crim. L. Rev. 479, 482 (1963).
Next, the Court finds that because the identification procedure took place two days after the crime, its reliability is enhanced. While such temporal proximity makes the identification more reliable than one occurring months later, the fact is that the greatest memory loss occurs within hours after an event. After that, the dropoff continues much more slowly. 11 Thus, the reliability of an identification is increased only if it was made within several hours of the crime. If the time gap is any greater, reliability necessarily decreases.
Finally, the Court makes much of the fact that Glover gave a description of the seller to D’Onofrio shortly after the incident. Despite the Court’s assertion that because “Glover himself was a Negro and unlikely to perceive only general features of ‘hundreds of Hartford black males/ as the Court of Appeals stated,” ante, at 115, the description given by Glover was actually no more than a general summary of the seller’s appearance. See ante, at 101. We may discount entirely the seller’s clothing, for that was of no significance later in the proceeding. Indeed, to the extent that Glover noticed clothes, his attention was diverted from the seller’s face. Otherwise, Glover merely described vaguely the seller’s height, skin color, hairstyle, and build. He did say that the *132 seller had “high cheekbones,” but there is no other mention of facial features, nor even an estimate of age. Conspicuously absent is any indication that the seller was a native of the West Indies, certainly something which a member of the black community could immediately recognize from both appearance and accent. 12
From all of this, I must conclude that the evidence of Glover’s ability to make an accurate identification is far weaker than the Court finds it. In contrast, the procedure used to identify respondent was both extraordinarily suggestive and strongly conducive to error. In dismissing “the corrupting effect of the suggestive identification” procedure here, ante, at 116, the Court virtually grants the police license to convict the innocent. By displaying a single photograph of respondent to the witness Glover under the circumstances in this record almost everything that could have been done wrong was done wrong.
In the first place, there was no need to use a photograph at all. Because photos are static, two-dimensional, and often outdated, they are “clearly inferior in reliability” to corporeal procedures. Wall, supra, n. 1, at 70; People v. Gould, 54 Cal. 2d 621, 631 , 354 P. 2d 865, 870 (1960). While the use of photographs is justifiable and often essential where the police have no knowledge of an offender’s identity, the poor reliability of photos makes their use inexcusable where any other means of identification is available. Here, since Detective D’Onofrio believed that he knew the seller’s identity, see ante, at 101,115, further investigation without resort to a photographic showup was easily possible. With little inconvenience, a corporeal *133 lineup including Brathwaite might have been arranged. 13 Properly conducted, such a procedure would have gone far to remove any doubt about the fairness and accuracy of the identification. 14
Worse still than the failure to use an easily available corporeal identification was the display to Glover of only a single picture, rather than a photo array. With good reason, such single-suspect procedures have “been widely condemned.” Stovall v. Denno, 388 U. S., at 302 . They give no assurance that the witness can identify the criminal from'among a number of persons of similar appearance, surely the strongest evidence that there was no misidentification. In Simmons v. United States, our first decision involving photographic identification, we recognized the danger that a witness seeing a suggestively displayed picture will “retain in his memory the image of the photograph rather than of the person actually seen.” 390 U. .S., at 383-384. “Subsequent identification of the accused then shows nothing except that the picture was a good likeness.” Williams & Hammelmann, supra, n. 1, at 484. As Simmons warned, the danger of error is at its greatest when “the police display to the witness only the picture of a single individual . . . [and] is also heightened if the police indicate to the witness that they have other evidence that . . . the perso[n] pictured committed the crime.” 390 U. S., at 383 . *134 See also ALI, Model Code' of Pre-Arraignment Procedure §§ 160.2 (2), (5) (1975).
The use of a single picture (or the display of a single live suspect, for that matter) is a grave error, of course, because it dramatically suggests to the witness that the person shown must be the culprit. Why else would the police choose the person? And it is deeply ingrained in human nature to agree with the expressed opinions of others — particularly others who should be more knowledgeable — when making a difficult decision. 15 In this case, moreover, the pressure was not limited to that inherent in the display of a single photograph. Glover, the identifying witness, was a state police officer on special assignment. He knew that D’Onofrio, an experienced Hartford narcotics detective, presumably familiar with local drug operations, believed respondent to be the seller. There was at work, then, both loyalty to another police officer and deference to a better-informed colleague. 16 Finally, of course, there was Glover’s knowledge that without an identifi *135 cation and arrest, government funds used to buy heroin had been wasted.
The Court discounts this overwhelming evidence of suggestiveness, however. It reasons that because D’Onofrio was not present when Glover viewed the photograph, there was “little pressure on the witness to acquiesce in the suggestion.” Ante, at 116. That conclusion blinks psychological reality. 17 There is no doubt in my mind that even in D’Onofrio’s absence, a clear and powerful message was telegraphed to Glover as he looked at respondent’s photograph. He was emphatically told that “this is the man,” and he responded by identifying respondent then and at trial “whether or not he was in fact 'the man.’ ” Foster v. California, 394 U. S., at 443 . 18
I must conclude that this record presents compelling evidence that there was “a very substantial likelihood of mis-identification” of respondent Brathwaite. The suggestive *136 display of respondent’s photograph to the witness Glover likely erased any independent memory that Glover had retained of the seller from his barely adequate opportunity to observe the criminal.
IV
Since I agree with the distinguished panel of the Court of Appeals that the legal standard of Stovall should govern this case, but that even if it does not, the facts here reveal a substantial likelihood of misidentification in violation of respondent’s right to due process of law, I would affirm the grant of habeas corpus relief. Accordingly, I dissent from the Court’s reinstatement of respondent’s conviction.
See, e. g., P. Wall, Eye-Witness Identification in Criminal Cases 19-23 (1966); N. Sobel, Eye-Witness Identification: Legal and Practical Problems, §§ 3.01, 3.02, 30 (1972); Hammelmann & Williams, Identification Parades — II, Crim. L. Rev. 545, 550 (1963).
The accused, a Negro, was brought handcuffed by seven white police officers and employees of the District Attorney to the hospital room of the only witness to a murder. As the Court said of this encounter: “It is hard to imagine a situation more clearly conveying the suggestion to the witness that the one presented is believed to be guilty by the police. See Frankfurter, The Case of Sacco and Vanzetti 31-32.” United States v. Wade, 388 U. S. 218, 234 (1967).
The police reasonably feared that the witness might die before any less suggestive confrontation could be arranged.
See also, McGowan, Constitutional Interpretation and Criminal Identification, 12 Wm. & Mary L. Rev. 235 , 240 (1970).
If the test enunciated in Stovall permitted any consideration of the witness’ opportunity to observe the offender at the time of the crime, it was only in the narrowly circumscribed context of ascertaining the extent to which the challenged procedure was “conducive to irreparable mistaken identification.” It is noteworthy, however, that in applying its test in Stovall , the Court did not advert to the significant circumstantial evidence of guilt, see United States ex rel. Stovall v. Denno, 355 F. 2d 731, 733-734 (CA2 1966), nor discuss any factors bearing on the witness’ opportunity to view the assailant.
Mr. Justice Harlan, writing for the Court in Simmons , acknowledged that there was a distinction between that case and Stovall . After describing the factual setting and the applicable due process test, he noted that “[t]his standard accords with our resolution of a similar issue in Stovall.” 390 U. S., at 384 . He pointedly did not say that the cases wiere the same, nor did he rely on Stovall to set the standard.
“The showup itself consisted of two detectives walking respondent past the victim.” 409 U. S., at 195 . The police also ordered respondent to repeat the words used by the criminal. Inadequate efforts were made to secure participants for a lineup, and there was no pressing need to use a showup.
See, e. g., N. Sobel, supra, n. 1, §§ 37, 38 (Supp. 1977); Grano, Kirby, Biggers, and Ash: Do Any Constitutional Safeguards Remain Against the Danger of Convicting the Innocent? 72 Mich. L. Rev. 717 (1974); M. Hartman & N. Goldberg, The Death of the Warren Court, The Doctrine of Suggestive Identification, 32 NLADA Briefcase 78 (1974); Pulaski, Neil v. Biggers : The Supreme Court Dismantles the Wade Trilogy’s Due Process Protection, 26 Stan. L. Rev. 1097 (1974); Recent Developments, Identification: Unnecessary Suggestiveness May Not Violate Due Process, 73 Colum. L. Rev. 1168 (1973).
See, e. g., People v. Anderson, 389 Mich. 155, 172-180, 192-220 , 205 N. W. 2d 461, 468-472, 479-494, 485 (1973); Levine & Tapp, The Psychology of Criminal Identification: The Gap From Wade to Kirby , 121 *126 U. Pa. L. Rev. 1079 (1973); O’Connor, “That’s the Man”: A Sobering Study of Eyewitness Identification and the Polygraph, 49 St. John’s L. Rev. 1 (1974); McGowan, supra, n. 4, at 238-239; Grano, supra, n. 7, at 723-724, 768-770; Recent Developments, supra, n. 7, at 1169 n. 11.
Moreover, as the exhaustive opinion of the Michigan Supreme Court in People v. Anderson, supra, noted:
“Por a number of obvious reasons, however, including the fact that there is no on-going systematic study of the problem, the reported cases of misidentification are in every likelihood only the top of the iceberg. The writer of this opinion, for example, was able to turn up three very recent unreported cases right here in Michigan in the course of a few hours’ inquiry.” 389 Mich., at 179-180 , 205 N. W. 2d, at 472 .
See also 429 U. S., at 499 n. 6; United States v. Washington, 431 U. S. 181, 193-194 (1977) (Brennan, J., dissenting); Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977). Cf. People v. Anderson, supra; Commonwealth v. Botelho, - Mass. -, 343 N. E. 2d 876 (1976).
See, e. g., Wall, swpra, n. 1, at 15-16; People v. Anderson, 389 Mich., at 217-220 , 205 N. W. 2d, at 493-494 ; O’Connor, supra, n. 8, at 4-6.
See, e .g., Levine & Tapp, supra, n. 8, at 1100-1101; Note, Pretrial Identification Procedures — Wade to Gilbert to Stovall: Lower Courts Bobble the Ball, 55 Minn. L. Rev. 779 , 789 (1971); People v. Anderson, supra, at 214-215 , 205 N. W. 2d, at 491 . Reviewing a number of its cases, the Court of Appeals for the District of Columbia Circuit concluded several years ago that while showups occurring up to perhaps 30 minutes after a crime are generally permissible, one taking place four hours later, far removed from the crime scene, was not. McRae v. United States, 137 U. S. App. D. C. 80, 87, 420 F. 2d 1283, 1290 (1969).
Brathwaite had come to the United States from his native Barbados as an adult. Tr. 99. It is also noteworthy that the informant who witnessed the transaction and was described by Glover as “trustworthy,” id., at 47, disagreed with Glover’s recollection of the event. The informant testified that it was a woman in the apartment who took the money from Glover and gave him the drugs in return. Id., at 86-87.
Indeed, the police carefully staged Brathwaite’s arrest in the same apartment that was used for the sale, see ante, at 101, 116, indicating that they were fully capable of keeping track of his whereabouts and using this information in their investigation.
It should be noted that this was not a case where the witness knew the person whom he saw committing a crime, or had an unusually long time to. observe the criminal, so “that the identification procedure was merely used to confirm the suspect’s identity. Cf. United States v. Wade, 388 U. S. 218, 250, 251 (1967) (White, J., dissenting). For example, had this been an ongoing narcotics investigation in which Glover had met the seller a number of times, the procedure would have been less objectionable.
See, e. g., United States v. Wade, supra, at 228-229 ; People v. Anderson, 389 Mich., at 173-177, 215-217 , 205 N. W. 2d, at 468-471, 491-493 ; Wall, supra, n. 1, at 26-40; O’Connor, supra, n. 8, at 9-10; Levine & Tapp, supra, n. 8.
In fact, the trial record indicates that D’Onofrio was remarkably ill-informed, although it does not appear that Glover knew this at the time of the identification. While the Court is impressed by D’Onofrio’s immediate response to Glover’s description, ante, at 108, 115, that cannot alter the fact that the detective, who had not witnessed the transaction, acted on a wild guess that respondent was the seller. D’Onofrio’s hunch rested solely on Glover’s vague description, yet D’Onofrio had seen respondent only “[s]everal times, mostly in his vehicle.” Tr. 64. There was no evidence that respondent was even a suspected narcotics dealer, and D’Onofrio thought that the drugs had been purchased at a different apartment from the one Glover actually went to. Id., at 47, 68, 69. The identification of respondent provides a perfect example of the investigator and the witness bolstering each other’s inadequate knowledge to produce a seemingly accurate but actually worthless identification. See Sobel, supra, n. 1, § 3.02, at 12.
That the “identification was made in circumstances allowing care and reflection,” ante, at 116, is hardly an unequivocal sign of accuracy. Time for reflection can just as easily be time for reconstructing an image only dimly remembered to coincide with the powerful suggestion before the viewer.
This discussion does not imply any lack of respect for the honesty and dedication of the police. We all share the frailties of human nature that create the problem. Justice Frank O’Connor of the New York Supreme Court decried the dangers of eyewitness testimony in a recent article that began with this caveat:
“From the vantage point of ten years as District Attorney of Queens County (1956-66) and six years on the trial bench (1969 to [1974]), the writer holds in high regard the professional competence and personal integrity of most policemen. Laudable instances of police efforts to clear a doubtful suspect are legion. Deliberate, willful efforts to frame or railroad an innocent man are totally unknown, at least to me. Yet, once the best-intentioned officer becomes honestly convinced that he has the right man, human nature being what it is, comers may be cut, some of the niceties forgotten, and serious error committed.” O’Connor, supra, n. 8, at 1 n. 1.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9426870. Public record. Not legal advice.