Neil v. Biggers, 409 U.S. 188 (1972)

ISSUE:  Rape complainant made an identification from a show-up after viewing numerous photographs, line-ups, and show-ups on multiple occasions.  At trial complainant testified that she had "no doubt" about the identification.  The issue before the Court was the admissibility of this type of suggestive identification procedure.

HOLDING:  The Court takes the opportunity to set out guidelines based on the precedent of StovallSimmonsFoster, and Coleman.  The Court finds that suggestiveness alone does not require exclusion of the evidence, but may serve as a basis for its exclusion.  The test is whether "under the 'totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive."  The Court finds that the factors to consider under this examination are:

1. The opportunity to view the culprit at the time of the crime;
2. The witness' degree of attention
3. The accuracy of the original description
4. The level of certainty "demonstrated by the witness at the confrontation";
5. The length of time between the crime and the confrontation.

Based on these factors, the Court finds the identification reliable enough to go to the jury because the witness had a good opportunity to view – spent half hour with assailant, lighting conditions good and under a full moon, complainant faced assailant directly at least once, and she was not a casual observer but a "victim of humiliating crime," her description to police included age, height, weight, complexion, skin texture, build and voice, she had no doubt about her identification, she testified that she would never forget her assailant's face, and last, although the lapse of seven months cut against strongly against identification in most cases, here the complainant had previously "resisted whatever suggestiveness inheres in a show-up" by failing to identify anyone else despite a number of opportunities.

"The primary evil to be avoided is a very substantial likelihood of irreparable misidentification. . . . It is the likelihood of misidentification which violates a defendant's right to due process …." 

"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."

Manson v. Brathwaite
, 432 U.S. 98 (1977

ISSUE:  Undercover African-American officer bought drugs through a cracked open door in a hallway of an apartment building.  The officer gave a description immediately afterwards as African-American, "tall, dark complexion, black hair, short Afro-style, having high cheekbones, and of heavy build.  Wearing blue pants and a plaid shirt."  Another officer showed undercover officer a single photo of Brathwaite, which undercover officer identified as the seller.  Officer made in court identification.   The issue before the Court was whether an identification produced by unnecessarily suggestive procedures is per se inadmissible even if it is otherwise reliable

HOLDING:  The Court finds that a per se rule is not appropriate.  It first weighs the costs and benefits of both the per se and totality of circumstances approaches and concludes that per se rule would have more deterrent effect on police, but that weighing the totality of circumstances would make more sense in terms of administration of justice.  The Court concludes that "reliability is the linchpin in determining the admissibility of identification testimony."  Court adopts Biggers factors for consideration:  "These include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the time of confrontation, and the time between the time and the confrontation.  Against these factors is to be weighed the corrupting effect of the suggestive identification itself."  Brathwaite, 432 U.S. at 114.

Based on these factors, and the fact that Brathwaite was arrested in the 

apartment where the sale took place and admitted to frequenting the premises, the Court found that there was not "substantial likelihood of irreparable misidentification."  Brathwaite, 432 U.S. at 114, quoting Stovall, 390 U.S. at 384). 

In re As. H., 851 A.2d 456 (D.C. 2004)

ISSUE:  Complainant was robbed by three or more suspects.  The police conducted a show-up shortly thereafter, during which the complainant said they were not the people who robbed her.   Complainant did not provide a good description of the suspects and could not describe the role AsH played.  About a month later, complainant selected AsH and said she was 7 or 8 out of 10 on the certainty scale that that was the person who robbed her.

  HOLDING:   The conviction was reversed for lack of evidence tying suspect to the crime.  Eyewitness identification of "questionable certitude," and the witness and suspect were strangers; the witness saw the suspects under stressful conditions.  In addition, there was no other evidence linking AsH to this crime.   The court states that "the identification of strangers is proverbially untrustworthy.

In re L.D.O.
, 400 A.2d 1055, 1056-8 (D.C. 1979) (prior identification rendered unreliable, and inadmissible, because the identifying witness testified he was not certain of his prior identification either at the time it was made or at trial). 

  The layperson's expectation is that, the more certain a witness is in her identification, the more reliable that identification is likely to be; thus, not surprisingly, the research shows that the certainty with which a witness presents herself is one of the strongest determinators of whether a jury will credit that witness.  See Gary L. Wells, Elizabeth A. Olson, & Steve D. Charman, "Distorted Eyewitness Reports as Functions of Feedback & Delay," 9 J. of Experimental Psychology:  Applied 42, 51 (2003) ("[t]he confidence that eyewitnesses express in their identifications is a primary determinant of whether triers of fact will believe that the identification was accurate").

  A witness' level of confidence in the identification does not correlate with the witness's objective accuracy in making an identification.  See, e.g. Kenneth Deffenbacher, "Eyewitness Accuracy and Confidence:  Can We Infer Anything About Their Relationship?", 4 L. & Hum. Behav. 243, 258 (1980)