Florencio P. Hernandez, Plaintiff-appellant, v. State of Nevada, Defendant-appellee, 469 F.2d 1393 (9th Cir. 1972)

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US Court of Appeals for the Ninth Circuit - 469 F.2d 1393 (9th Cir. 1972) Dec. 14, 1972

Morgan D. Harris, Jeffrey D. Sobel, Las Vegas, Nev., for plaintiff-appellant.

Robert List, Atty. Gen., Carson City, Nev., for defendant-appellee.

Before MERRILL, BROWNING and WALLACE, Circuit Judges.


For the reasons set forth by the District Court in its order denying habeas corpus, we agree that under the circumstances of this case the pre-arrest photographic identification by an eye-witness played a negligible role in her in-court identification of appellant and that there was no substantial possibility of misidentification.1 



We agree with the views expressed by the Supreme Court of Nevada, Hernandez v. State, 87 Nev. 553, 490 P.2d 1245, 1247 (1971), that it is the duty of the state to preserve a record of the photographs used for identification purposes to enable counsel to reconstruct the identification process. However, we agree with that court and with the District Court that failure to meet this duty does not, per se, constitute error of constitutional proportions, and that whether due process was lacking depends on the facts of the particular case