Use of Single Photograph for Identification
MANSON v. BRATHWAITE, Supreme Court of the United States (1977), 432 U.S. 98, 97 S.Ct. 2243
FACTS:
Officer Glover of the Connecticut State Police, Narcotics Division made a purchase of drugs from a known narcotics dealer. Glover and an informant arrived at the dealer's apartment for the purpose of making a buy. Glover knocked on the third floor apartment door during late afternoon. Natural light illuminated the drug dealer's face so that Glover was able to see the man and his facial features with a great deal of clarity. When Officer Glover requested "two things" of heroin, respondent took two ten dollar bills from Glover and disappeared within the apartment. He soon returned with two glassine bags of a powder later determined to be heroin.
After Glover left the vicinity of the purchase, he offered a detailed description of the suspect to fellow officer, D'Onofrio. Since the narration offered by Glover seemed to describe a man D'Onofrio knew as a dealer, he obtained a photograph which was placed on Officer Glover's desk. Approximately two days later, Glover viewed the police photo of respondent and instantly identified the picture as being a photo of respondent.
Respondent Brathwaite was charged by information with possession and sale of heroin. At his trial, defense counsel did not object to the use of the photograph or the identification process and Brathwaite was convicted. Connecticut courts upheld the conviction on direct appeal.
Pursuing his federal remedies, Brathwaite filed a petition for federal habeas corpus supported by the allegation that admission of the identification testimony violated his right to due process of law under the Fourteenth Amendment. The district court dismissed the petition, but the Court of Appeals for the Second Circuit reversed. The Supreme Court of the United States granted certiorari.
PROCEDURAL QUESTION:
Where police view one photograph of a suspect for purposes of making a comparison of the suspect with the photograph does such procedure violate due process under the Fourteenth Amendment?
HELD: No.
RATIONALE:
Mr. Justice BLACKMUN delivered the opinion of the Court.
This case presents this issue as to whether the Due Process Clause of the Fourteenth Amendment compels the exclusion, in a state criminal trial, apart from any consideration of reliability, of pretrial identification evidence obtained by a police procedure that was both suggestive and unnecessary. This Court's decisions in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), are particularly implicated.
II* * *
The Court of Appeals confirmed that the exhibition of the single photograph to Glover was "impermissibly suggestive," 527 F.2d, at 366, and felt that, in addition, "it was unnecessarily so." Id., at 367. There was no emergency and little urgency. The court said that prior to the decision in Biggers, except in cases of harmless error, "a conviction secured as the result of admitting an identification obtained by impermissibly suggestive and unnecessary measures could not stand." Ibid. It noted what it felt might be opposing inferences to be drawn from passages in Biggers, but concluded that the case preserved the principle "requiring the exclusion of identifications resulting from 'unnecessarily suggestive confrontation'" in post-Stovall situations. 527 F.2d, at 368. The court also concluded that for post-Stovall identifications, Biggers had not changed the existing rule. Thus: "Evidence of an identification unnecessarily obtained by impermissibly suggestive means must be excluded under Stovall .... No rules less stringent than these can force police administrators and prosecutors to adopt procedures that will give fair assurance against the awful risks of misidentification." 527 F.2d, at 371.
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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.2 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.
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We therefore conclude that reliability is the linchpin in determining the admissibility of identification testimony for both pre- and post-Stovall confrontations. The factors to be considered are set out in Biggers. 409 U.S., at 199-200, 93 S.Ct., at 382. These include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.
V
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 - a specialized and dangerous duty - when he called at the third floor of 201 Westland in Hartford on May 5, 1970. Glover himself was a [black male] and unlikely to perceive only general features of "hundreds of Hartford black males," as the Court of Appeals stated. 527 F.2d, at 371. 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, see Simmons v. United States, 390 U.S., at 383, 88 S.Ct., at 970-971, 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.
* * *
Surely, we cannot say that under all the circumstances of this case there is "a very substantial likelihood of irreparable misidentification." Id., at 384, 88 S.Ct., at 971. 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.
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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.
Notes
1. Could you argue that Officer Glover's observation of the single photograph of Brathwaite at the police station presented a risk of irreparable misidentification by impermissibly "steering" Glover to make the identification of Brathwaite? Or does the process indicate that Glover's initial description of Brathwaite to his fellow officer was so complete that it prompted the officer to select the photograph of Brathwaite?
2. A photographic array or even a single photograph does not require the presence of counsel even where adversary proceedings have been initiated. As noted earlier, in United States v. Ash, 413 U.S. 300 (1973), the Court held that the Sixth Amendment right to counsel does not grant the right to counsel at photographic arrays conducted by the government for purposes of obtaining an identification of a suspect, even one under arrest at the time of the photographic array. The Court noted that the ethical responsibility of the prosecutor should serve to safeguard the integrity of the photographic identification process.
Are you comfortable with due process resting on the ethical conduct of a prosecutor who probably was not present to supervise a lineup? Should other safeguards be devised to cover lineup situations where no counsel is present? On the other side, if counsel were required for all photographic lineups, the standard police of mug shots for identification purposes would disappear.
THE EIGHTH AMENDMENT AND THE QUALIFIED RIGHT TO BAIL
BAIL AND THE EIGHTH AMENDMENT
The Eighth Amendment to the Constitution of the United States guarantees, inter alia, that "excessive bail shall not be required." A bail amount which has been set at an amount higher than the minimum reasonably calculated to fulfill the aims and purposes of bail may be deemed "excessive" under the Eighth Amendment. Bail allows a criminal defendant to be released from formal government custody in exchange for the payment money or the pledge of property of a value sufficient to ensure the defendant's return to court at all proper times. The rationale for conditionally releasing a person who had been accused of a crime rests on the primary consideration of the pretrial presumption of innocence. See Stack v. Boyle, infra, Next Lesson, 342 U.S. 1 (1951). Pretrial release permits the accused to freely consult with counsel, to interview and search for favorable witnesses, to assist in the preparation of an appropriate defense, and to continue gainful employment.
The assets pledged or paid as bail usually must meet local statutory requirements concerning type and location of the collateral as well as the value of the property. Even where sufficient property has been pledged as bail, the conditional freedom always involves the risk that a defendant might flee and fail to return when required. It is, at best, a calculated risk-weighing decision in which a court gambles that a defendant will perform consistent with the pledges and promises made in court.
From the time of the common law, bail was not available for all types of alleged crimes, especially the more serious offenses. Where the crime charged carried a potential life sentence or the death penalty, a judge or magistrate might refuse to set bail. Under local practice, frequently judges deny bail where the danger to the community appears to be great, particularly in instances involving sexual crimes or drug-related offenses. The resulting situation ensures that the defendant will not flee and does not give rise to a claim of "excessive bail" since no amount was ever determined.
While states frequently grant pretrial bail, the bail portion of the Eighth Amendment has not yet explicitly been incorporated into the Due Process Clause of the Fourteenth Amendment. Therefore, it cannot be stated with certainty whether this part of the Eighth Amendment applies so as to regulate state bail practice. In any event, the states generally permit bail to be granted on terms and conditions which mirror the federal bail jurisprudence under the Eighth Amendment. For example, see the Ohio Revised Code, Section 2937.23, and Article I, Section 9, Ohio Constitution, infra, Next Lesson.
For felony cases, a judicial official generally must consider numerous factors in determining the appropriate bail amount. The factors underpinning the bail decision involve an individual analysis of the defendant's past history while under pretrial release, the ties to the local community, the work history of the defendant, the financial resources, the seriousness of the crime, the strength of the evidence, the potential penalty if convicted, and the likelihood that defendant will continue criminal conduct or otherwise endanger individual members of the community. Although the primary bail consideration centers around the issue of whether the defendant will return for all required court appearances, the Federal Bail Reform Act of 1984 interjected additional requirements in some federal prosecutions.
In response to perceived abuses in federal bail practice, most notably the tendency of drug trafficking defendants to post large bail amounts and flee the United States, Congress passed the Bail Reform Act of 1984. In addition to the usual bail factors, the Bail Reform Act of 1984 directed federal courts specifically to look at the type of crime charged, the weight of the evidence, the physical and mental condition of the accused, history of drug or alcohol abuse, and the potential danger presented to any person or to the community by the defendant. The Act changed federal bail practice in cases where the defendant was charged with specific drug offenses, a crime of violence, a life imprisonment crime, a crime for which the penalty could be greater than ten years, or had been convicted of two similar crimes within the past ten years. If the government presents evidence that the person might flee, could present a danger to any community member, or might obstruct justice by threatening potential witnesses or jurors, bail may be denied altogether. In the above situations, the attorney for the government may ask for a pretrial detention order.
In United States v. Salerno, 481 U.S. 739 (1987), infra, Next Lesson, the Supreme Court upheld the constitutionality of portions of the Bail Reform Act of 1984 affecting pretrial detention. The Court rejected arguments that the practice of holding some defendants in custody pending trial constituted pretrial punishment and noted that pretrial detention orders served to prevent dangers to the community, a legitimate regulatory goal. In support of its decision, the Court stated that although the Eighth Amendment prohibited excessive bail, the language of the Amendment did not address the issue of whether bail should be available in a particular case.
In making a decision of whether to grant bail or to order pretrial detention, the Bail Reform Act of 1984 mandated that an arrestee be granted a detention hearing at his first appearance before a judicial official. Such hearing could be delayed up to five days at an arrestee's request or up to three days on motion by the government. At issue in United States v. Montalvo-Murillo, 495 U.S. 711 (1990), was the remedy for the arrestee where the detention hearing was delayed significantly through no fault of the arrestee. To resolve a dispute among federal Courts of Appeal, the Supreme Court granted certiorari to determine the remedy for failure to grant a detention hearing at the first appearance of an arrestee. The Court held that a federal court does not lose jurisdiction to make a determination under the recent Bail Reform Act and may issue a detention order even if the government has not followed the time requirements of the law. According to the Court, "Magistrates and district judges can be presumed to insist upon compliance with the law without the threat that we must embarrass the system by releasing a suspect certain to flee from justice . . ."
In contrast to the practice of felony bail and the litigation which accompanies it, criminal cases involving misdemeanor offenses generally do not require such detailed analysis of individual factors. Typically, alleged misdemeanors and violations of local municipal ordinances are bailable with little reference to any factor other than a local pre-determined bail schedule. See Ohio Revised Code, Section 2937.23, for a representative illustration of state practice.
Regardless of whether the charged offense constitutes a felony or misdemeanor, once the amount of bail has been judicially determined, the defendant, or a person on behalf of defendant, may personally pay or pledge the full amount. Not infrequently, the accused does not possess the complete bail amount or own approved values of property and must resort to the commercial bail bondsman. Typical bond practice normally requires the defendant to pay ten percent of the full bail to the bondsman in exchange for the bondsman's executing a pledge for the complete amount to the government. Bail posted through a bondsman is money which will not be returned to the defendant even where the defendant fully complies with all conditions of bail.
Many states have long been concerned with perceived abuses by commercial bondsmen. To correct these problems, various legislatures have enacted legislation geared toward ending shady bail practices. Illinois addressed bail issues involving commercial bondsmen by statutorily providing a plan whereby a defendant who paid ten percent of the total bail could receive nine percent of the actual amount paid as a refund at the conclusion of criminal proceedings. Irrespective of guilt or innocence, the state plan allowed the state to retain one percent of the entire bail amount to cover administrative costs. In Schilb v. Kuebel, infra, Next Lesson, 404 U.S. 357 (1971), the Supreme Court approved the Illinois plan by rejecting a constitutional attack based on the Fourteenth Amendment Due Process and Equal Protection clauses.
Bail following a criminal conviction rests on a significantly different posture than pretrial bail release. The most salient feature lacking after conviction is the presumption of innocence. Although the likelihood of flight arguably increases once a conviction has occurred, numerous jurisdictions permit post-conviction bail pending the determination of the appeal on similar terms as pretrial bail. The amount of post-conviction bail may range from a continuation of the pretrial bail to a doubling of the amount to whatever amount a particular judge deems appropriate. Section 3148 of the Federal Bail Act, infra, Next Lesson, permits post-conviction bail. In addition to the usual pretrial bail considerations, the granting of post-conviction bail generally requires that the judge believe that the appeal has not been pursued merely for reasons of delay, has not been based on frivolous grounds, and actually presents a significant question of law or of fact which may result in a reversal of the conviction. See Harris v. United States, 404 U.S. 1232 (1971) and the Bail Reform Act of 1984, infra, Next Lesson.
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