Also known as: substantial likelihood of irreparable misidentification · irreparable misidentification · suggestive identification due process
Written by attorneys · grounded in primary & secondary sources — see below
A due process standard requiring exclusion of an eyewitness identification when the pretrial procedure was so impermissibly suggestive as to create a very substantial likelihood of irreparable misidentification.
Transit officer Ruiz showed passenger Dana a printed array of eight rideshare driver photos that prominently featured Leo. Dana identified Leo as her assailant. The court applied the due process standard and denied suppression because the array did not create a very substantial likelihood of irreparable misidentification.
After a bank robbery, police brought witness Violet Vidal to a stationhouse where she viewed only Virgil Volpe standing alone under bright lights. The court applied the due process standard and excluded the identification because the procedure created a very substantial likelihood of irreparable misidentification.
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A witness saw the suspect from her apartment window and later identified him in court without any police procedure. The court applied the due process standard and admitted the identification because no suggestive procedure created a very substantial likelihood of irreparable misidentification.
After an assault, police conducted a lineup where witness Vivian Velez identified Coleman. The court applied the due process standard and admitted the identification because the lineup was not so impermissibly suggestive as to create a very substantial likelihood of irreparable misidentification.
An undercover officer viewed a single photo of the suspect shown by a detective. The court applied the due process standard and admitted the identification because the procedure did not create a very substantial likelihood of irreparable misidentification under the totality of circumstances.
Security officer Harris showed store clerk Lena a computerized array and lingered on Diego's image. The court applied the due process standard and admitted the identification because the procedure did not rise to a very substantial likelihood of irreparable misidentification.
An identification must be excluded if the procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. The defense bears the initial burden of showing unnecessary suggestiveness. The prosecution then must demonstrate reliability under the totality of circumstances.
No. The Sixth Amendment right to counsel does not attach to photo identifications because they are not critical stages. The due process standard remains available to challenge unnecessarily suggestive arrays that create a very substantial likelihood of irreparable misidentification.
Courts consider the opportunity to view, degree of attention, accuracy of prior description, level of certainty, and time between crime and identification. If these factors show reliability despite some suggestiveness, the identification is admitted.
Yes. An in-court identification is admissible if the prosecution shows it rests on an independent source and is not the product of a procedure creating a very substantial likelihood of irreparable misidentification.
…The Due Process Clause of the Fifth Amendment still applies. If a photographic identification is so suggestive as to create a very substantial likelihood of irreparable misidentification, it may violate due process. See Simmons v. United States , 390 U. S. 377 (1968); Foster v. California , 394 U. S. 440 (1969); Coleman v. Alabama , 399 U. S. 1 (1970). In this case,…