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CRS Annotated Constitution

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Criminal Identification Process.—The conduct by police of identification processes seeking to identify the perpetrators of crimes—by lineups, showups, photographic displays, and the like—can raise due process problems. For postindictment lineups and showups conducted before June 12, 1967,37 for preindictment lineups and showups,38 and for identification processes at which the defendant is not present,39 the question of the admissibility of an in–court identification or of testimony about an out–of–court identification is whether there is “a very substantial likelihood of misidentification,” and that question must be determined “on the totality of the circumstances.”40

“Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased[p.1753]chance of misidentification is gratuitous.”41 But, balancing the factors that it thought furnished the guidance for decision, the Court declined to lay down a per se rule of exclusion of an identification because it was obtained under conditions of unnecessary suggestiveness alone, feeling that the fairness standard of due process does not require an evidentiary rule of such severity.42

Initiation of the Prosecution.—Indictment by a grand jury is not a requirement of due process; a State may proceed instead by information.43 Due process does require that, whatever the procedure, a defendant must be given adequate notice of the offense charged against him and for which he is to be tried,44 even aside from the requirements of the Sixth Amendment. Where, of course, a grand jury is utilized, it must be fairly constituted and free from prejudicial influences.45


37 Stovall v. Denno, 388 U.S. 293 (1967) .
38 Kirby v. Illinois, 406 U.S. 682 (1972) .
39 United States v. Ash, 413 U.S. 300 (1973) .
40 Neil v. Biggers, 409 U.S. 188, 196–201 (1972) ; Manson v. Brathwaite, 432 U.S. 98, 114–17 (1977) . The factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the suspect at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the suspect, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. See also Stovall v. Denno, 388 U.S. 293 (1967) ; 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) .
41 Neil v. Biggers, 409 U.S. 188, 198 (1972) .
42 Manson v. Brathwaite, 432 U.S. 98, 107–14 (1977) . The evaluative factors were what the per se rule and the less strict rule contributed to excluding unreliable eyewitness testimony from jury consideration, to deterrence of suggestive procedures, and to the administration of justice. The possibility of a per se rule in post– Stovall cases had been left open in Neil v. Biggers, 409 U.S. 188, 199 (1972) . Due process does not require that the in–court hearing to determine whether to exclude a witness’ identification as arrived at improperly be out of the presence of the jury. Watkins v. Sowders, 449 U.S. 341 (1981) .
43 Hurtado v. California, 110 U.S. 516 (1884) .

Supplement: [P. 1753, add to n.43:]

The Court has also rejected an argument that due process requires that criminal prosecutions go forward only on a showing of probable cause. Albright v. Oliver, 510 U.S. 266 (1994) (holding that there is no civil rights action based on the Fourteenth Amendment for arrest and imposition of bond without probable cause).

44 Smith v. O’Grady, 312 U.S. 329 (1941) (guilty plea of layman unrepresented by counsel to what prosecution represented as a charge of simple burglary but which was in fact a charge of “burglary with explosives” carrying a much lengthier sentence is void). See also Cole v. Arkansas, 333 U.S. 196 (1948) (affirmance by appellate court of conviction and sentence on ground that evidence showed defendant guilty under a section of the statute not charged violated due process); In re Ruffalo, 390 U.S. 544 (1968) (disbarment in proceeding on charge which was not made until after lawyer had testified denied due process); Rabe v. Washington, 405 U.S. 313 (1972) (affirmance of obscenity conviction because of the context in which a movie was shown—grounds neither covered in the statute nor listed in the charge—was invalid).
45 Norris v. Alabama, 294 U.S. 587 (1935) ; Cassell v. Texas, 339 U.S. 282 (1950) ; Eubanks v. Louisiana, 356 U.S. 584 (1958) ; Hernandez v. Texas, 347 U.S. 475 (1954) ; Pierre v. Louisiana, 306 U.S. 354 (1939) . See infra, pp. 1854–57. On prejudicial publicity, see Beck v. Washington, 369 U.S. 541 (1962) .
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