Case

Was the Photographic Identification Reliable?

Manson v. Brathwaite

432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)

Nowell Brathwaite was charged with possession and sale of heroin. The jury found him guilty and the judge sentenced him to not less than six nor more than nine years. The Supreme Court of Connecticut affirmed. Fourteen months later, Brathwaite filed a petition for habeas corpus in the United States District Court for the District of Connecticut. He alleged that the admission of the identification testimony at his state trial deprived him of due process of law to which he was entitled under the Fourteenth Amendment. The District Court dismissed his petition. On appeal, the United States Court of Appeals for the Second Circuit reversed, with instructions to issue the writ unless the State gave notice of a desire to retry respondent and the new trial occurred within a reasonable time to be fixed by the District Judge. The United States District Court for the District of Connecticut denied relief, and Brathwaite appealed. The Court of Appeals, Second Circuit, reversed. The U.S. Supreme Court granted certiorari and reversed.

Justice BLACKMUN delivered the opinion of the Court.

Facts

Jimmy D. Glover, a trained Negro undercover state police officer was assigned to the Narcotics Division in 1970. On May 5 of that year, at about 7:45 p. m., e.d.t., and while there was still daylight, Glover and Henry Alton Brown, an informant, went to an apartment building at 201 Westland, in Hartford, for the purpose of purchasing narcotics from "Dickie Boy" Cicero, a known narcotics dealer.

Cicero, it was thought, lived on the third floor of that apartment building. Glover and Brown entered the building, observed by back-up Officers D'Onofrio and Gaffey, and proceeded by stairs to the third floor. Glover knocked at the door of one of the two apartments served by the stairway. It appears that the door on which Glover knocked may not have been that of the Cicero apartment. Petitioner [John Manson, Commissioner of Corrections] concedes that the transaction "was with some other person than had been intended." The area was illuminated by natural light from a window in the third floor hallway.

The door was opened 12 to 18 inches in response to the knock. Glover observed a man standing at the door and, behind him, a woman. Brown identified himself. Glover then asked for "two things" of narcotics. The man at the door held out his hand, and Glover gave him two $10 bills. The door closed. Soon the man returned and handed Glover two glassine bags.

[Footnote: This was Glover's testimony. Brown later was called as a witness for the prosecution. He testified on direct examination that, due to his then use of heroin, he had no clear recollection of the details of the incident. On cross-examination, as in an interview with defense counsel the preceding day, he said that it was a woman who opened the door, received the money, and thereafter produced the narcotics. On redirect, he acknowledged that he was using heroin daily at the time, that he had had some that day, and that there was "an inability to recall and remember events."]

While the door was open, Glover stood within two feet of the person from whom he made the purchase and observed his face. Five to seven minutes elapsed from the time the door first opened until it closed the second time.

Glover and Brown then left the building. This was about eight minutes after their arrival. Glover drove to headquarters where he described the seller to D'Onofrio and Gaffey. Glover at that time did not know the identity of the seller. He described him as being "a colored man, approximately five feet eleven inches tall, dark complexion, black hair, short Afro style, and having high cheekbones, and of heavy build. He was wearing at the time blue pants and a plaid shirt."

D'Onofrio, suspecting from this description that respondent might be the seller, obtained a photograph of respondent from the Records Division of the Hartford Police Department. He left it at Glover's office. D'Onofrio was not acquainted with respondent personally but did know him by sight and had seen him "several times" prior to May 5. Glover, when alone, viewed the photograph for the first time upon his return to headquarters on May 7; he identified the person shown as the one from whom he had purchased the narcotics.

The toxicological report on the contents of the glassine bags revealed the presence of heroin. The report was dated July 16, 1970. Respondent was arrested on July 27 while visiting at the apartment of a Mrs. Ramsey on the third floor of 201 Westland. This was the apartment at which the narcotics sale had taken place on May 5. Brathwaite testified: "Lots of times I have been there before in that building." He also testified that Mrs. Ramsey was a friend of his wife, that her apartment was the only one in the building he ever visited, and that he and his family, consisting of his wife and five children, did not live there but at 453 Albany Avenue, Hartford.

Respondent [Brathwaite] was charged, in a two-count information, with possession and sale of heroin. At his trial in January 1971, the photograph from which Glover had identified respondent was received in evidence without objection on the part of the defense. Glover also testified that, although he had not seen respondent in the eight months that had elapsed since the sale, "there (was) no doubt whatsoever" in his mind that the person shown on the photograph was respondent. Glover also made a positive in-court identification without objection. No explanation was offered by the prosecution for the failure to utilize a photographic array or to conduct a lineup.

Respondent, who took the stand in his own defense, testified that on May 5, the day in question, he had been ill at his Albany Avenue apartment ("a lot of back pains, muscle spasms . . . a bad heart . . . high blood pressure . . . neuralgia in my face, and sinus," and that at no time on that particular day had he been at 201 Westland.

His wife testified that she recalled, after her husband had refreshed her memory, that he was home all day on May 5.

Doctor Wesley M. Vietzke, an internist and assistant professor of medicine at the University of Connecticut, testified that respondent had consulted him on April 15, 1970, and that he took a medical history from him, heard his complaints about his back and facial pain, and discovered that he had high blood pressure. The physician found respondent, subjectively, "in great discomfort." Respondent in fact underwent surgery for a herniated disc at L5 and S1 on August 17.

The jury found respondent guilty on both counts of the information. He received a sentence of not less than six nor more than nine years. His conviction was affirmed per curiam [a brief opinion] by the Supreme Court of Connecticut. That court noted the absence of an objection to Glover's in-court identification and concluded that respondent "has not shown that substantial injustice resulted from the admission of this evidence." Under Connecticut law, substantial injustice must be shown before a claim of error not made or passed on by the trial court will be considered on appeal.

Fourteen months later, respondent filed a petition for habeas corpus in the United States District Court for the District of Connecticut. He alleged that the admission of the identification testimony at his state trial deprived him of due process of law to which he was entitled under the Fourteenth Amendment. The District Court, by an unreported written opinion based on the court's review of the state trial transcript, dismissed respondent's petition. On appeal, the United States Court of Appeals for the Second Circuit reversed, with instructions to issue the writ unless the State gave notice of a desire to retry respondent and the new trial occurred within a reasonable time to be fixed by the District Judge.

In brief summary, the court felt that evidence as to the photograph should have been excluded, regardless of reliability, because the examination of the single photograph was unnecessary and suggestive. And, in the court's view, the evidence was unreliable in any event. We granted certiorari.

Opinion

…Petitioner [Commissioner of Corrections]…acknowledges that "the procedure in the instant case was suggestive (because only one photograph was used) and unnecessary" (because there was no emergency or exigent circumstance). The respondent, in agreement with the Court of Appeals, proposes a per se rule of exclusion that he claims is dictated by the demands of the Fourteenth Amendment's guarantee of due process. He rightly observes that this is the first case in which this Court has had occasion to rule upon…out-of-court identification evidence of the challenged kind.

Since the decision in Biggers [excerpted earlier in this chapter], the Courts of Appeals appear to have developed at least two approaches to such evidence. The first, or per se approach, employed by the Second Circuit in the present case, focuses on the procedures employed and requires exclusion of the out-of-court identification evidence, without regard to reliability, whenever it has been obtained through unnecessarily suggested confrontation procedures. The justifications advanced are the elimination of evidence of uncertain reliability, deterrence of the police and prosecutors, and the stated "fair assurance against the awful risks of misidentification."

The second, or more lenient, approach is one that continues to rely on the totality of the circumstances. It permits the admission of the confrontation evidence if, despite the suggestive aspect, the out-of-court identification possesses certain features of reliability. Its adherents feel that the per se approach is not mandated by the Due Process Clause of the Fourteenth Amendment. This second approach, in contrast to the other, is ad hoc and serves to limit the societal costs imposed by a sanction that excludes relevant evidence from consideration and evaluation by the trier of fact.

Mr. Justice Stevens, in writing for the Seventh Circuit in Kirby, [discussed in your text] observed: “There is surprising unanimity among scholars in regarding such a rule (the per se approach) as essential to avoid serious risk of miscarriage of justice." He pointed out that well-known federal judges have taken the position that "evidence of, or derived from, a showup identification should be inadmissible unless the prosecutor can justify his failure to use a more reliable identification procedure." Indeed, the ALI Model Code of Pre-Arraignment Procedure §§ 160.1 and 160.2 (1975) (hereafter Model Code), frowns upon the use of a showup or the display of only a single photograph.”

The respondent here stresses the same theme and the need for deterrence of improper identification practice, a factor he regards as pre-eminent. Photographic identification, it is said, continues to be needlessly employed. He notes that the legislative regulation "the Court had hoped would engender," has not been forthcoming. He argues that a totality rule cannot be expected to have a significant deterrent impact; only a strict rule of exclusion will have direct and immediate impact on law enforcement agents. Identification evidence is so convincing to the jury that sweeping exclusionary rules are required. Fairness of the trial is threatened by suggestive confrontation evidence, and thus, it is said, an exclusionary rule has an established constitutional predicate.

There are, of course, several interests to be considered and taken into account. The driving force behind United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) (right to counsel at a post-indictment line-up), and Stovall, all decided on the same day, was the Court's concern with the problems of eyewitness identification. Usually the witness must testify about an encounter with a total stranger under circumstances of emergency or emotional stress. The witness' recollection of the stranger can be distorted easily by the circumstances or by later actions of the police. Thus, Wade and its companion cases reflect the concern that the jury not hear eyewitness testimony unless that evidence has aspects of reliability. It must be observed that both approaches before us are responsive to this concern. The per se rule, however, goes too far since its application automatically and peremptorily, and without consideration of alleviating factors, keeps evidence from the jury that is reliable and relevant.

The second factor is deterrence. Although the per se approach has the more significant deterrent effect, the totality approach also has an influence on police behavior. The police will guard against unnecessarily suggestive procedures under the totality rule, as well as the per se one, for fear that their actions will lead to the exclusion of identifications as unreliable.

The third factor is the effect on the administration of justice. Here the per se approach suffers serious drawbacks. Since it denies the trier reliable evidence, it may result, on occasion, in the guilty going free. Also, because of its rigidity, the per se approach may make error by the trial judge more likely than the totality approach. And in those cases in which the admission of identification evidence is error under the per se approach but not under the totality approach cases in which the identification is reliable despite an unnecessarily suggestive identification procedure reversal is a Draconian sanction. Unlike a warrantless search, a suggestive preindictment identification procedure does not in itself intrude upon a constitutionally protected interest. Thus, considerations urging the exclusion of evidence deriving from a constitutional violation do not bear on the instant problem. Certainly, inflexible rules of exclusion that may frustrate rather than promote justice have not been viewed recently by this Court with unlimited enthusiasm…. The standard, after all, is that of fairness as required by the Due Process Clause of the Fourteenth Amendment….

We turn, then, to the facts of this case and apply the analysis:

1. The opportunity to view. Glover testified that for two to three minutes he stood at the apartment door, within two feet of the respondent. The door opened twice, and each time the man stood at the door. The moments passed, the conversation took place, and payment was made. Glover looked directly at his vendor. It was near sunset, to be sure, but the sun had not yet set, so it was not dark or even dusk or twilight. Natural light from outside entered the hallway through a window. There was natural light, as well, from inside the apartment.

2. The degree of attention. Glover was not a casual or passing observer, as is so often the case with eyewitness identification. Trooper Glover was a trained police officer on duty and specialized and dangerous duty when he called at the third floor of 201 Westland in Hartford on May 5, 1970. Glover himself was a Negro and unlikely to perceive only general features of "hundreds of Hartford black males," as the Court of Appeals stated. It is true that Glover's duty was that of ferreting out narcotics offenders and that he would be expected in his work to produce results. But it is also true that, as a specially trained, assigned, and experienced officer, he could be expected to pay scrupulous attention to detail, for he knew that subsequently he would have to find and arrest his vendor. In addition, he knew that his claimed observations would be subject later to close scrutiny and examination at any trial.

3. The accuracy of the description. Glover's description was given to D'Onofrio within minutes after the transaction. It included the vendor's race, his height, his build, the color and style of his hair, and the high cheekbone facial feature. It also included clothing the vendor wore. No claim has been made that respondent did not possess the physical characteristics so described. D'Onofrio reacted positively at once. Two days later, when Glover was alone, he viewed the photograph D'Onofrio produced and identified its subject as the narcotics seller.

4. The witness' level of certainty. There is no dispute that the photograph in question was that of respondent. Glover, in response to a question whether the photograph was that of the person from whom he made the purchase, testified: "There is no question whatsoever." Tr. 38. This positive assurance was repeated. Id., at 41-42.

5. The time between the crime and the confrontation. Glover's description of his vendor was given to D'Onofrio within minutes of the crime. The photographic identification took place only two days later. We do not have here the passage of weeks or months between the crime and the viewing of the photograph.

These indicators of Glover's ability to make an accurate identification are hardly outweighed by the corrupting effect of the challenged identification itself. Although identifications arising from single-photograph displays may be viewed in general with suspicion, we find in the instant case little pressure on the witness to acquiesce in the suggestion that such a display entails. D'Onofrio had left the photograph at Glover's office and was not present when Glover first viewed it two days after the event. There thus was little urgency and Glover could view the photograph at his leisure. And since Glover examined the photograph alone, there was no coercive pressure to make an identification arising from the presence of another. The identification was made in circumstances allowing care and reflection.

Although it plays no part in our analysis, all this assurance as to the reliability of the identification is hardly undermined by the facts that respondent was arrested in the very apartment where the sale had taken place, and that he acknowledged his frequent visits to that apartment. Mrs. Ramsey was not a witness at the trial.

Surely, we cannot say that under all the circumstances of this case there is "a very substantial likelihood of irreparable misidentification." Short of that point, such evidence is for the jury to weigh. We are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.

Of course, it would have been better had D'Onofrio presented Glover with a photographic array including "so far as practicable . . . a reasonable number of persons similar to any person then suspected whose likeness is included in the array." Model Code, s 160.2(2). The use of that procedure would have enhanced the force of the identification at trial and would have avoided the risk that the evidence would be excluded as unreliable. But we are not disposed to view D'Onofrio's failure as one of constitutional dimension to be enforced by a rigorous and unbending exclusionary rule. The defect, if there be one, goes to weight and not to substance.

We conclude that the criteria laid down in Biggers are to be applied in determining the admissibility of evidence offered by the prosecution concerning a post-Stovall identification, and that those criteria are satisfactorily met and complied with here.

The judgment of the Court of Appeals is reversed.

Concurring Opinion

Justice STEVENS, concurring.

…The arguments in favor of fashioning new rules to minimize the danger of convicting the innocent on the basis of unreliable eyewitness testimony carry substantial force. Nevertheless,…I am persuaded that this rulemaking function can be performed more effectively by the legislative process than by a somewhat clumsy judicial fiat and that the Federal Constitution does not foreclose experimentation by the States in the development of such rules….

Dissent

Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.

Today's decision can come as no surprise to those who have been watching the Court dismantle the protections against mistaken eyewitness testimony erected a decade ago in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). But it is still distressing to see the Court virtually ignore the teaching of experience embodied in those decisions and blindly uphold the conviction of a defendant who may well be innocent.

…The foundation of the Wade was the Court's recognition of the "high incidence of miscarriage of justice" resulting from the admission of mistaken eyewitness identification evidence at criminal trials. Relying on numerous studies made over many years by such scholars as Professor Wigmore and Mr. Justice Frankfurter, the Court concluded that "the vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification." It is, of course, impossible to control one source of such errors the faulty perceptions and unreliable memories of witnesses except through vigorously contested trials conducted by diligent counsel and judges.

The Court in the Wade cases acted, however, to minimize the more preventable threat posed to accurate identification by "the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification."…

Despite my strong disagreement with the Court over the proper standards [the totality of the circumstances instead of the per se rule] to be applied in this case,… assuming applicability of the totality test enunciated by the Court, the facts of the present case require [the exclusion of the identification in this case because it raises a very substantial likelihood of misidentification].

I consider first the opportunity that Officer Glover had to view the suspect. Careful review of the record shows that he could see the heroin seller only for the time it took to speak three sentences of four or five short words, to hand over some money, and later after the door reopened, to receive the drugs in return. The entire face-to-face transaction could have taken as little as 15 or 20 seconds. But during this time, Glover's attention was not focused exclusively on the seller's face. He observed that the door was opened 12 to 18 inches, that there was a window in the room behind the door, and, most importantly, that there was a woman standing behind the man. Glover was, of course, also concentrating on the details of the transaction he must have looked away from the seller's face to hand him the money and receive the drugs. The observation during the conversation thus may have been as brief as 5 or 10 seconds.

As the Court notes, Glover was a police officer trained in and attentive to the need for making accurate identifications. Nevertheless, both common sense and scholarly study indicate that while a trained observer such as a police officer "is somewhat less likely to make an erroneous identification than the average untrained observer, the mere fact that he has been so trained is no guarantee that he is correct in a specific case. His identification testimony should be scrutinized just as carefully as that of the normal witness." Moreover, "identifications made by policemen in highly competitive activities, such as undercover narcotic agents . . ., should be scrutinized with special care." Yet it is just such a searching inquiry that the Court fails to make here.

Another factor on which the Court relies the witness' degree of certainty in making the identification is worthless as an indicator that he is correct. Even if Glover had been unsure initially about his identification of respondent's picture, by the time he was called at trial to present a key piece of evidence for the State that paid his salary, it is impossible to imagine his responding negatively to such questions as "is there any doubt in your mind whatsoever" that the identification was correct. As the Court noted in Wade: "It is a matter of common experience that, once a witness has picked out the accused at the (pretrial confrontation), he is not likely to go back on his word later on."

Next, the Court finds that because the identification procedure took place two days after the crime, its reliability is enhanced. While such temporal proximity makes the identification more reliable than one occurring months later, the fact is that the greatest memory loss occurs within hours after an event. After that, the dropoff continues much more slowly. Thus, the reliability of an identification is increased only if it was made within several hours of the crime. If the time gap is any greater, reliability necessarily decreases. Reviewing a number of its cases, the Court of Appeals for the District of Columbia Circuit concluded several years ago that while showups occurring up to perhaps 30 minutes after a crime are generally permissible, one taking place four hours later, far removed from the crime scene, was not.

Finally, the Court makes much of the fact that Glover gave a description of the seller to D'Onofrio shortly after the incident. Despite the Court's assertion that because "Glover himself was a Negro and unlikely to perceive only general features of 'hundreds of Hartford black males,' as the Court of Appeals stated," the description given by Glover was actually no more than a general summary of the seller's appearance. We may discount entirely the seller's clothing, for that was of no significance later in the proceeding. Indeed, to the extent that Glover noticed clothes, his attention was diverted from the seller's face. Otherwise, Glover merely described vaguely the seller's height, skin color, hairstyle, and build. He did say that the seller had "high cheekbones," but there is no other mention of facial features, nor even an estimate of age.

Conspicuously absent is any indication that the seller was a native of the West Indies, certainly something which a member of the black community could immediately recognize from both appearance and accent. Brathwaite had come to the United States from his native Barbados as an adult.

It is also noteworthy that the informant who witnessed the transaction and was described by Glover as "trustworthy,” disagreed with Glover's recollection of the event. The informant testified that it was a woman in the apartment who took the money from Glover and gave him the drugs in return. From all of this, I must conclude that the evidence of Glover's ability to make an accurate identification is far weaker than the Court finds it.

In contrast, the procedure used to identify respondent was both extraordinarily suggestive and strongly conducive to error. In dismissing "the corrupting effect of the suggestive identification" procedure here, the Court virtually grants the police license to convict the innocent. By displaying a single photograph of respondent to the witness Glover under the circumstances in this record almost everything that could have been done wrong was done wrong.

In the first place, there was no need to use a photograph at all. Because photos are static, two-dimensional, and often outdated, they are "clearly inferior in reliability" to corporeal procedures. While the use of photographs is justifiable and often essential where the police have no knowledge of an offender's identity, the poor reliability of photos makes their use inexcusable where any other means of identification is available. Here, since Detective D'Onofrio believed that he knew the seller's identity, further investigation without resort to a photographic showup was easily possible.

With little inconvenience, a corporeal lineup including Brathwaite might have been arranged. Indeed, the police carefully staged Brathwaite's arrest in the same apartment that was used for the sale, indicating that they were fully capable of keeping track of his whereabouts and using this information in their investigation.

Properly conducted, such a procedure would have gone far to remove any doubt about the fairness and accuracy of the identification. It should be noted that this was not a case where the witness knew the person whom he saw committing a crime, or had an unusually long time to observe the criminal, so that the identification procedure was merely used to confirm the suspect's identity. For example, had this been an ongoing narcotics investigation in which Glover had met the seller a number of times, the procedure would have been less objectionable.

Worse still than the failure to use an easily available corporeal identification was the display to Glover of only a single picture, rather than a photo array. With good reason, such single-suspect procedures have "been widely condemned." They give no assurance that the witness can identify the criminal from among a number of persons of similar appearance, surely the strongest evidence that there was no misidentification. In Simmons v. United States, our first decision involving photographic identification, we recognized the danger that a witness seeing a suggestively displayed picture will "retain in his memory the image of the photograph rather than of the person actually seen." "Subsequent identification of the accused then shows nothing except that the picture was a good likeness." As Simmons warned, the danger of error is at its greatest when "the police display to the witness only the picture of a single individual . . . and is also heightened if the police indicate to the witness that they have other evidence that . . . the person pictured committed the crime."

The use of a single picture (or the display of a single live suspect, for that matter) is a grave error, of course, because it dramatically suggests to the witness that the person shown must be the culprit. Why else would the police choose the person? And it is deeply ingrained in human nature to agree with the expressed opinions of others particularly others who should be more knowledgeable when making a difficult decision.

In this case, moreover, the pressure was not limited to that inherent in the display of a single photograph. Glover, the identifying witness, was a state police officer on special assignment. He knew that D'Onofrio, an experienced Hartford narcotics detective, presumably familiar with local drug operations, believed respondent to be the seller. There was at work, then, both loyalty to another police officer and deference to a better-informed colleague.

[Footnote: In fact, the trial record indicates that D'Onofrio was remarkably ill-informed, although it does not appear that Glover knew this at the time of the identification. While the Court is impressed by D'Onofrio's immediate response to Glover's description, that cannot alter the fact that the detective, who had not witnessed the transaction, acted on a wild guess that respondent was the seller. D'Onofrio's hunch rested solely on Glover's vague description, yet D'Onofrio had seen respondent only "several times, mostly in his vehicle." There was no evidence that respondent was even a suspected narcotics dealer, and D'Onofrio thought that the drugs had been purchased at a different apartment from the one Glover actually went to. The identification of respondent provides a perfect example of the investigator and the witness bolstering each other's inadequate knowledge to produce a seemingly accurate but actually worthless identification.]

The Court discounts this overwhelming evidence of suggestiveness, however. It reasons that because D'Onofrio was not present when Glover viewed the photograph, there was "little pressure on the witness to acquiesce in the suggestion." That conclusion blinks psychological reality. There is no doubt in my mind that even in D'Onofrio's absence, a clear and powerful message was telegraphed to Glover as he looked at respondent's photograph. He was emphatically told that "this is the man," and he responded by identifying respondent then and at trial "whether or not he was in fact 'the man.' "

[Footnote: This discussion does not imply any lack of respect for the honesty and dedication of the police. We all share the frailties of human nature that create the problem. Justice Frank O'Connor of the New York Supreme Court decried the dangers of eyewitness testimony in a recent article that began with this caveat:

From the vantage point of ten years as District Attorney of Queens County (1956-1966) and six years on the trial bench (1969 to (1974)), the writer holds in high regard the professional competence and personal integrity of most policemen. Laudable instances of police efforts to clear a doubtful suspect are legion. Deliberate, willful efforts to frame or railroad an innocent man are totally unknown, at least to me. Yet, once the best-intentioned officer becomes honestly convinced that he has the right man, human nature being what it is, corners may be cut, some of the niceties forgotten, and serious error committed.]

I must conclude that this record presents compelling evidence that there was "a very substantial likelihood of misidentification" of respondent Brathwaite. The suggestive display of respondent's photograph to the witness Glover likely erased any independent memory that Glover had retained of the seller from his barely adequate opportunity to observe the criminal.

Accordingly, I dissent from the Court's reinstatement of respondent's conviction.

Questions

1. What precisely was the totality of circumstances taken into account in this case?

2. Do you think it demonstrates “a very substantial likelihood of irreparable misidentification”?

3. Do you agree that Jimmy Glover had sufficient opportunity to observe Brathwaite? To describe him accurately? To identify the photograph positively? If not, was this harmless error?

4. Is the dissent correct in saying that the Court is “dismantling the protections against mistaken eyewitness testimony erected... in United States v. Wade”?

5. Is the dissent correct in arguing that the Court wrongfully evaluated the impact of the exclusionary rule and the totality of circumstances? Evaluate those arguments.

6. Is the dissent’s stress on Brathwaite’s Barbados ancestry important? Explain.

7. Would you side with the dissent or the majority in this case?

8. Has the majority sacrificed accuracy at the expense of finality? At the expense of law enforcement, as the dissent maintains?

9. Is the majority fostering a false sense of security in that the public believes the government has caught the criminal in many cases in which the criminal remains at large?