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Despite the paramount importance of identification evidence in criminal trials, Supreme Court precedents on the subject have been confusing and confused. The result is widespread misapplication of proper constitutional doctrine: lower courts habitually admit evidence of suggestive identification procedures if they find such procedures to have been "necessitated" by circumstances on the ground. Such reasoning misinterprets the governing Supreme Court cases and, in any event, makes little sense. Whether necessary or not, evidence of suggestive identification procedures, and any consequent in-court identifications, must be excluded from trial unless supported by sufficient indicia of reliability.
I. Introduction
The admissibility of police-arranged identification procedures and consequent in-court identifications is governed by the Sixth Amendment's right to counsel and by the Due Process clause. Under the Sixth Amendment, defendants have a right to the presence of counsel during corporeal identification procedures conducted after the initiation of judicial proceedings.1 Evidence of identification procedures and consequent incourt identifications may be excluded from trial if that right to counsel was violated.2 The Due Process clause, by contrast, forbids the admission of identification testimony that violates principles of "fundamental fairness," independent of any right to counsel issue.3
Supreme Court decisions dealing with identification procedures under both these constitutional provisions have been inconsistent and often unconvincing.4 This failure is particularly galling given that misidentifications, aided by faulty identification procedures, are the leading cause of false convictions in the United States.5 This article seeks to clarify one small aspect of this confused jurisprudence: the rules governing the admissibility of suggestive and necessary identification procedures under the Due Process clause.
A suggestive identification procedure is one that suggests to the identifying witness who is the suspect expected to be identified.6 Suggestiveness may take many forms: asking the witness to pay particular attention to "number three" in a six-person lineup; having the defendant as the only Hispanic in a photo array; presenting numerous photographs with only the suspect appearing in all of them; or, as in many of the cases we will examine, presenting only the suspect to the witness, handcuffed and surrounded by police officers (the oft-used single-person showup). A suggestive and necessary identification procedure is a suggestive procedure whose suggestiveness was necessitated by exigent circumstances.7
As we shall soon see, this important area...