concluding that “error is neither unimportant nor insignificant” where “it infringes upon a basic right[s] of the aecuse[d]”; “[in such instances, the error] raises a reasonable possibility that it might have contributed to the conviction” such that it “cannot [be said] that it was harmless beyond a reasonable doubt”
How later courts described this case
- concluding that “error is neither unimportant nor insignificant” where “it infringes upon a basic right[s] of the aecuse[d]”; “[in such instances, the error] raises a reasonable possibility that it might have contributed to the conviction” such that it “cannot [be said] that it was harmless beyond a reasonable doubt”
- concluding that “error is neither unimportant nor insignificant” where “it infringes upon a basic right of the accused”; “[in such instances, the error] raises a reasonable possibility that it might have contributed to the conviction” such that it “cannot [be said] that it was harmless beyond a reasonable doubt”
- holding unconstitutional a statutory presumption where “the burden imposed upon the accused [was] not merely a burden of going forward with the evidence or of raising a reasonable doubt, but [was] a burden of persuasion of the nonexistence of an essential element of the crime of murder.”
- holding unconstitutional a statutory presumption regarding the state of mind necessary for second degree murder where the presumption impermissibly shifted the burden of persuasion to the defendant
Written by the judges who cited it.
The opinion
CONCURRING & DISSENTING OPINION OF
LEVINSON, J.
I concur in the opinion of the court except the statement that only one of the seven errors specified by the defendant has merit. I think that a second specification of error relating to the police station identifications also has merit and I dissent from the contrary holding of this court.
One of the witnesses at the trial was Sei Nakata. Mr. Nakata had been asked to identify the defendant at the police station at a time when the defendant was alone in a room, not part of a lineup, and not represented by counsel. “The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.” Stovall v. Denno, 388 U.S. 293, 302 (1967); Foster v. California, 394 U.S. 440, 443 (1969). As elicited through his testimony, the basis for his identification was as follows:
Q. And at that time, you had doubts?
A. Little doubt.
Q. Now, why don’t you no doubt then?
A. Because nobody, police caught nobody by this description.
Q. So the reason that you are saying now that it’s him, *117 if I understand you correctly, is because he is the one that the police apprehended?
A. Yes, and I asked the 'detective there if he is left handed and they told me he is left handed.
* Hs * *
Q. Isn’t it true, Mr. Nakata, that when you went in and they showed you this boy here, he was alone, wasn’t he? A. Yes.
Q. They didn’t give you a line up ?
A. No.
Q. They didn’t put anybody else next to him?
A. No.
Q. And the police came and said I want you to identify the boy that we caught?
A. Yes.
Q. And they told you that this was the man that they had arrested for the murder?
A. Yes.
Q. And so you figured they had picked the right man?
A. Yes, because when they said he is left handed, I think, and fit my description. I said he is the one.
* * H* *
Q. So actually even before you saw this boy in the police station you had a pretty good idea he was the one that did it from what the police told you?
A. I think so, yes.
$ $ ‡ $
Q. You knew that Danny was going to be here when you came to testify?
A. Oh, yes.
* * * *
Q. You knew this was the boy that was charged?
A. Yes.
Q. In this crime?
A. Yes.
*118 Q. And so you knew that this was the one that you saw?
A. Yes.
Q. Because he is the one that is charged?
A. Yes.
* * * *
Q. Based on what the police told you when they took you down to the police station, you know that they were going to show you the person who committed this crime?
A. Yes.
Q. And when you came in here you also knew you were going to see the same person?
A. Yes.
Q. And this is on what you base you[r] identification? That’s correct?
A. I believe so.
As Mr. Justice Douglas wrote in his dissenting opinion in Biggers v. Tennessee, 390 U.S. 404, 406 (1968):
Stovall v. Denno, 388 U.S. 293 , and Simmons v. United States, ante, p. 377, make it clear, however, that independent of any right to counsel claim, a procedure of identification may be “so unnecessarily suggestive and conducive to irreparable mistaken identification” that due process of law is denied when evidence of the identification is used at trial. Stovall v. Denno, supra, at 302.
I think that the police station identification of the defendant by Mr. Nakata was so unnecessarily suggestive and conducive to irreparable mistaken identification that due process of law was denied when evidence of such identification was used at the trial.
Another witness called by the State to identify the defendant was Faith Lee. Mrs. Lee was asked by the police to go to the police station and was shown the defendant who was alone in “one of the booths” with a police officer. She then listened to a voice test in which five separate voices said “I got ’em, I got ’em”. She identified the defendant and his voice.
*119 This voice test was given at approximately 5:30 p.m. after the defendant had been in police custody since 6:00 or 6:30 in the morning and when he was not represented by counsel. All of the participants in the voice test except the defendant, who was 17 years of age, were on-duty police oL ficers. The eleven hours that elapsed between the time when the defendant was taken into police custody and the time when the voice test was given provided more than sufficient time for the police to arrange for the participation of other juveniles. Mrs. Lee knew that the suspect was a juvenile. Asking her to pick the only juvenile voice out of a test whose participants were four adults and one juvenile does not present a fair test and is certainly suggestive. This procedure so undermined the reliability of the eye witness identification as to violate due process. Foster v. California, 394 U.S. 440, 443 (1969). I am satisfied that this is so, under the “totality of the surrounding circumstances” test stated in Mr. Justice Brennan’s opinion in Coleman v. Alabama, 399 U.S. 1, 4 (1970).