After petitioner was arrested for a Western Union robbery, the only non-accomplice eyewitness, Joseph David, viewed a three-man lineup in which petitioner was much taller than the other two participants and wore a leather jacket similar to the robber's. David could not make a positive identification, so police then arranged a one-to-one confrontation between David and petitioner, but David still remained uncertain. A week or 10 days later police conducted a second lineup of five men, and petitioner was the only person who had also appeared in the first lineup. After that second lineup, David became convinced petitioner was the robber, and at trial he testified to the lineup identifications and identified petitioner in court.
Issue
Whether the police identification procedures used here were so unnecessarily suggestive, under the totality of the circumstances, that they violated due process by producing an unreliable eyewitness identification.
Rule
Even where the right-to-counsel rule of Wade and Gilbert does not apply, due process is denied if, under the totality of the circumstances, identification procedures are so unnecessarily suggestive and conducive to irreparable mistaken identification that they undermine the reliability of the eyewitness identification.
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One of 10 multiple-choice questions for this case. Pick an answer to see why.
A cashier in Phoenix saw a masked robber for several seconds when the robber briefly pulled the mask up. Police first placed Malik Rowan in a four-person lineup where he was the only participant wearing a red windbreaker like the robber's; when the cashier said she was unsure, detectives brought Rowan alone into an interview room for her to view, and nine days later placed him in a second lineup where he was the only person repeated from the first lineup, after which she identified him confidently.
If Rowan moves to exclude the cashier's identification on due process grounds, how should the court rule?
Explanation. The governing rule is that due process is violated when, under the totality of the circumstances, identification procedures are so unnecessarily suggestive and conducive to irreparable mistaken identification that the resulting identification is constitutionally inadmissible. Here, as in the majority opinion, Rowan was singled out in the first lineup, then subjected to a one-to-one confrontation, and then repeated as the only returning participant in a later lineup until a definite identification resulted. The majority treated the cumulative effect of those steps as making identification all but inevitable, not merely a jury-weight issue.