Eyewitness Identification: Constitutional Aspects - Due Process

The first Supreme Court case to apply the due process clause to pretrial eyewitness identification procedures intimated that any procedure that unnecessarily suggested to the eyewitness that the defendant was the perpetrator would be declared unconstitutional (Stovall v. Denno, 388 U.S. 293, 301–02 (1967)). Although the Court ultimately upheld the one-on-one confrontation in that case because it was "imperative" (the eyewitness was confined to a hospital bed and near death), its language suggested that this "widely condemned" procedure would not have been permitted had there been time to arrange a lineup or photo array. Subsequent to Stovall some lower courts adopted a "per se" rule to the effect that unnecessarily suggestive identification procedures should lead to exclusion of identifications thereby produced.

Within a decade, however, the Court made clear that reliability, not unnecessary suggestiveness, is the "linchpin" of due process analysis (Neil v. Biggers, 409 U.S. 188, 198–9 (1972); Manson v. Braithwaite, 432 U.S. 98, 114 (1977)). The reliability of an eyewitness identification, according to the Court, is to be gauged by the eyewitness' opportunity to view the perpetrator, the degree of attention the eyewitness is able to direct at the perpetrator, the accuracy of any description the eyewitness gives, the witness's level of certainty about the identification, the time between the crime and the eyewitness identification, and like factors. Thus, in Biggers, the Court held constitutional a one-on-one confrontation that occurred several months after the crime, because the witness had been with the perpetrator for well over fifteen minutes, had refused to identify the perpetrator during previous lineups and showups, and was certain of her identification. In Braithwaite, an identification of the defendant from a single photo placed on the eyewitness's desk was upheld because the eyewitness viewed the perpetrator for two to three minutes, was a trained police officer, gave a detailed description of the perpetrator, identified the defendant from the photo within two days, and was certain of his identification.