Criminal Identification Process
Criminal Identification Process.—The use by police of procedures seeking to identify the perpetrators of crimes—by lineups, showups, photographic displays, and the like—can raise due process problems. When police use lineups or showups1012 and other identification processes at which the defendant is not present,1013 the admissibility of a subsequent in-court identification or of testimony about an out-of-court identification is whether there is "a very substantial likelihood of misidentification," and that question must be determined "on the totality of the circumstances."1014
1012 Kirby v. Illinois, 406 U.S. 682 (1972).
1013 United States v. Ash, 413 U.S. 300 (1973).
1014 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' degree of attention, the accuracy of the witness' 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); Simmons v. United States, 390 U.S. 377 (1968); Foster v. California, 394 U.S. 440 (1969); Coleman v. Alabama, 399 U.S. 1 (1970).
"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."1015 But, balancing the factors that it thought furnished the guidance for decision, the Court declined to lay down a per se rule of exclusion of an identification because it was obtained under conditions of unnecessary suggestiveness alone, feeling that the fairness standard of due process does not require an evidentiary rule of such severity.1016
1016 Manson v. Brathwaite, 432 U.S. 98, 107-14 (1977). The possibility of a per se rule in post- Stovall cases had been left open in Neil v. Biggers, 409 U.S. 188, 199 (1972). In Manson, the Court evaluated what the per se rule and the less strict rule contributed to excluding unreliable eyewitness testimony from jury consideration, to deterrence of suggestive procedures, and to the administration of justice. Due process does not require that the in-court hearing to determine whether to exclude a witness' identification as arrived at improperly be out of the presence of the jury. Watkins v. Sowders, 449 U.S. 341 (1981).