She also described him as either wearing a wig or needing a haircut. Cindy Dortman noticed that the robber was wearing a light-colored shirt, a baseball cap, dark sunglasses, and had longer hair than normal for a man of his age.
She also described him as wearing flared jeans, with a chain hanging out of his pocket and his shirt pulled over his pants. She noted that the robber had a "long, very distinguished" nose. These descriptions comport with the image of the robber as seen in the surveillance photographs, and with the image of defendant as he appears in the photographic array.
Fourth, the photographic array was conducted within two weeks of the bank robbery. Courts have held that delays as long as eighteen months after a crime do not invalidate an eyewitness identification.
Finally, there is no evidence that the tellers were panicked or otherwise psychologically debilitated by the crime. Carolyn Schultz, branch manager of the bank, testified that the tellers were trained to react in this type of situation and that they did react calmly to the robbery:. One factor that tends to undermine the reliability of the photographic array identification is the misidentification several days after the robbery of a bank customer as the robber.
As already noted, for a brief period, Dortman and Kamendat thought the robber had returned to the bank. However, the record indicates that, at most, their identification of the customer as the robber was tentative. Neither Kamendat nor Dortman ever positively identified this customer as the man who robbed the bank. Rather, Kamendat testified that she was caught off guard and overreacted when she saw a man who appeared to be the size of the robber, and who was dressed like the robber, with a chain on his belt that reached into a bag.
However, after reviewing the incident in her mind later that day, she came to the conclusion that the customer was not the robber.
Dortman testified that she told a deputy that the customer was the same size as the robber and had other similarities to the robber, including the chain hanging out of his pocket. Her primary concern, however, was that this customer's transaction involved the exchange of Canadian currency. Where there are other indicia of reliability, an initial inability to identify the defendant or a tentative false identification of another person will not invalidate a witness' identification of the defendant.
In this case, the opportunities afforded these witnesses to view the perpetrator, the accuracy of their descriptions of the robber, and the confidence with which they identified defendant as the robber provided sufficient indicia of reliability to allow submission of the evidence to the jury. It is also argued that the identification at the photographic lineup of defendant by the five eyewitnesses was improperly influenced by the publication in the local newspaper of the surveillance photographs.
However, in this case, Kamendat did not remember seeing the chain attached to the trucker's wallet during the robbery.
She saw it for the first time in the surveillance photographs. Thus, the appearance of the surveillance photographs served not only to refresh her memory of the robbery, but to enhance it.
More important, when Kamendat earlier misidentified a bank customer as the robber, her mistake was based primarily on the fact that the customer wore a trucker's wallet.
Likewise, Dortman also saw the surveillance photographs in which the robber's trucker's wallet was plainly visible. Despite the potential suggestive influence of the surveillance photographs, as well as the suggestiveness of the defendant's lineup photograph, we conclude that defendant has not demonstrated clear error by the trial court.
Nothing in the record supports a conclusion that there was a substantial likelihood of misidentification at the photographic array as a result of any suggestive influences. For example, there is no testimony by either teller that her identification of defendant's photograph was made on the basis of her examination of the surveillance photographs. In fact, each witness testified that the photographs had no effect on her ability to identify defendant as the robber.
Just as important, in contrast to the cases cited earlier, no testimony was elicited from the witnesses indicating that they chose defendant's photograph because of the suggestive features of his photograph.
See Commonwealth v Thornley and Henry v State, supra. Instead, the record contains the sworn testimony of two trained bank tellers who stated that they were certain that they recognized defendant as the man who robbed the bank. Therefore, the identification testimony of the tellers regarding the photographic array was properly admitted as evidence at trial.
Because the photographic array was not impermissibly suggestive, it did not taint the subsequent in-court identifications by the tellers. Defendant also argues that the corporeal lineup was impermissibly suggestive because he was singled out from the other participants by his appearance.
Each identified defendant as the bank robber. The participants in this lineup wore similar attire jail greens and short-sleeved shirts. Defendant complains that he appeared more disheveled than the others because he had been wearing the same clothing for several days in jail and because he had not been allowed to shave while in jail.
In addition, he challenges the lineup because three of the participants had mustaches, despite the fact that none of the witnesses described the bank robber as having a mustache. He also argues that it was improper that only three of the lineup participants including defendant had appeared in the photographic array. Finally, he argues that the lineup was tainted by the publication of the surveillance and postarraignment photographs in a local newspaper.
Stovall, supra at As a general rule, "physical differences between a suspect and other lineup participants do not, in and of themselves, constitute impermissible suggestiveness Differences among participants in a lineup. Thus, in People v Holmes, Mich App , ; NW2d , where the defendant was the second tallest participant in the lineup and heavier than others, the lineup was not impermissibly suggestive because the defendant's appearance was substantially similar to that of the other participants.
In People v Horton, 98 Mich App 62, ; NW2d , the lineup was not impermissibly suggestive despite alleged age and height differences between the defendant and the other participants and despite the fact that the defendant was the only participant with a visibly scarred face.
A lineup in which the defendant was the only participant with both a mustache and a goatee was found to be not impermissibly suggestive in People v Hughes, 24 Mich App ; NW2d 66 Upon review of the record, we conclude that the trial court did not err when it found that testimony regarding the identifications made by Mary Kamendat, Cindy Dortman, Shirley Smith, and Gladys Caris was admissible.
A photograph of the corporeal lineup shows six men of approximately the same age, height, and weight. None of the men stands out from the others in an impermissibly suggestive fashion. Moreover, according to their written notes at the lineup, none of these four witnesses chose defendant because she saw the surveillance or postarraignment photographs that were published in the newspaper or because of his disheveled appearance.
Mary Kamendat wrote that defendant was the "[s]ame size, height. Looks like the man from what I remember. Stands like him. Stomach same size. I put beer belly type. Side profile looked very much like I remember from the day of the robbery. You know when you've seen someone before. None of the others were even close. With the hat and sunglasses on he looked like an exact match. Nothing in the record demonstrates a clear error by the trial court when it concluded that the corporeal lineup was not impermissibly suggestive to these four witnesses.
Thus, their testimony regarding the corporeal lineup was properly admitted. The identification testimony of branch manager Schultz requires a separate analysis. Defendant argues, relying on People v Prast, supra, that her lineup and in-court identifications were improperly admitted because they were premised upon her viewing of the bank's surveillance photographs, rather than upon her observation of the crime.
The prosecution agrees on appeal that her testimony should have been disregarded for this reason. On the other hand, the trial court found that the surveillance photographs were not "unduly influential" in her selection of the defendant.
Although she testified at the Wade hearing that her identification of defendant was not premised upon her viewing of the newspaper photographs, she stated that "because I did not get a clear view of him, I identified him from the picture my camera took.
It is not clear from the record whether the surveillance photographs were shown to Mrs. Schultz by law enforcement personnel. Although government conduct in the display of such photographs may be a factor in determining whether due process protection has been violated, see United States v Stubblefield, F2d , CA 9, ; Commonwealth v Otsuki, Mass , ; NE2d , we do not explore that issue because we determine that the error, if any, with respect to the identification of defendant by Schultz was harmless beyond a reasonable doubt.
MCR 2. Banks, Mich Our review of the record in this case demonstrates that the persuasiveness of the prosecutor's case was unaffected by Schultz' testimony. The jury heard the testimony of four other eyewitnesses who identified defendant as the robber both before trial and in court. Carolyn Schultz was the least important witness for the prosecution's case.
She observed the robber only from a distance, and only for a few moments. At most, her identification testimony was cumulative of more compelling eyewitness testimony. More important, any defects in the eyewitness identifications were brought out by defendant's counsel. He vigorously cross-examined the witnesses and attacked their credibility. In addition, he presented the testimony of Harvey Schulmann, Ph. Schulmann claimed that between twenty and fifty percent of all eyewitness identifications are incorrect, and that a number of factors, such as the passage of time, poor viewing conditions, and age of the witness, may increase the error rate.
He also testified that the confidence of an eyewitness bears no relationship to the accuracy of an identification. In light of the jury's decision to convict despite the vigorous defense presented by defendant, we conclude that the exclusion of identification testimony of relative unimportance would have had no effect on the jury's verdict.
For example, defendant offered the testimony of three alibi witnesses who stated that he was with them at the time of the robbery; however, the alibi was weakened by the admission that he originally lied to investigators concerning his whereabouts at the time of the robbery. Similarly, defendant's testimony regarding his car was suspect. Evidence was presented that defendant owned a car virtually identical to the car described by the eyewitnesses as the robber's car.
Defendant admitted that he stopped driving his car shortly after the robbery. He claimed that the car was malfunctioning, but evidence at trial showed that defendant's car had no mechanical problems. In addition, evidence was presented that the license plate on defendant's car was on a hinge which allowed the plate to be lifted up when filling the gas tank.
Defendant's license plate would stick in this position, just as the robber's license plate was stuck in this position during the robbery. Finally, the jury was allowed to examine various pieces of physical evidence the bank's surveillance photographs, the photograph of defendant that appeared in the photographic array, and the defendant's clothing, which the state alleged he wore during the robbery.
This untainted evidence is sufficient to support a finding beyond a reasonable doubt that the jury's verdict was not affected by admission of the identification testimony of Carolyn Schultz. The prosecutor's case would have been equally persuasive with or without this testimony. For this reason, any error was harmless. We also hold that any error in the identification testimony of Carolyn Schultz was harmless beyond a reasonable doubt.
The judgment of the Court of Appeals is affirmed. The admission of the testimony of branch manager Schultz does not rise to the level of a cognizable claim of denial of due process. First, defendant has, minimally, the burden of coming forward on this issue, and there is no record basis indicating impermissible police conduct.
Commonwealth v Otsuki, Mass , ; NE2d Defendant contends that the witness' statement implies that she was shown photographs. However, the witness merely stated, "I identified [the defendant] from the picture my camera took. Second, even assuming that law enforcement officials showed Mrs.
Schultz the picture that "her camera took," due process would be offended only if the police had done something that "was so suggestive in light of the totality of the circumstances that it led to a substantial likelihood of misidentification," ante at , citing Neil v Biggers, US , ; 93 S Ct ; 34 L Ed 2d The surveillance photograph was of the actual perpetrator.
The identification by the witness was based on her appraisal of the defendant's resemblance to the surveillance photograph image of the true perpetrator. Thus, the risk that Mrs. Schultz would misidentify the defendant was no greater than the risk that the jurors, comparing the defendant with the same surveillance photographs, would misidentify the defendant.
While the foundation for Mrs. Schultz' testimony may have been deficient in that it was not based on an actual observation of the robber, no lack-of-foundation objection was made in the trial court. Further review is unnecessary. Brathwaite , U. Biggers , U. Denno , U. Suggestive procedures include when the identifying witness knows all the other participants in the lineup except the suspect, when the others are grossly dissimilar in appearance from the suspect, when only the suspect is required to wear the distinctive clothing allegedly worn by the culprit, when the police tell the witness that they have caught the suspect after which the suspect is viewed alone, when the suspect is pointed out before or during the procedure, when the participants are asked to try on clothing which only fits the suspect or when an identification is made in the presence of other identifying witnesses.
When a lineup or showup is conducted in violation of the defendant's right to due process, an in-court identification of the defendant will not be permitted unless the government can establish an independent source.
Sotomayor, J. Justice Ginsburg delivered the opinion of the Court. In our system of justice, fair trial for persons charged with criminal offenses is secured by the Sixth Amendment , which guarantees to defendants the right to counsel, compulsory process to obtain defense witnesses, and the opportunity to cross-examine witnesses for the prosecution.
Those safeguards apart, admission of evidence in state trials is ordinarily governed by state law, and the reliability of relevant testimony typically falls within the province of the jury to determine.
This Court has recognized, in addition, a due process check on the admission of eyewitness identification, applicable when the police have arranged suggestive circumstances leading the witness to identify a particular person as the perpetrator of a crime. An identification infected by improper police influence, our case law holds, is not automatically excluded. Instead, the trial judge must screen the evidence for reliability pretrial.
But if the indicia of reliability are strong enough to outweigh the corrupting effect of the police-arranged suggestive circumstances, the identification evidence ordinarily will be admitted, and the jury will ultimately determine its worth. We have not extended pretrial screening for reliability to cases in which the suggestive circumstances were not arranged by law enforcement officers. Petitioner requests that we do so because of the grave risk that mistaken identification will yield a miscarriage of justice.
When no improper law enforcement activity is involved, we hold, it suffices to test reliability through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at postindictment lineups, vigorous cross-examination, protective rules of evi- dence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt.
Officer Nicole Clay responded to the call. She then saw petitioner Barion Perry standing between two cars. Perry walked toward Clay, holding two car-stereo amplifiers in his hands. A metal bat lay on the ground behind him. Clay asked Perry where the amplifiers came from. Clavijo immediately went downstairs to the parking lot to inspect the car.
He first observed that one of the rear windows had been shattered. On further inspection, he discovered that the speakers and amplifiers from his car stereo were missing, as were his bat and wrench.
By this time, another officer had arrived at the scene. Clay asked Perry to stay in the parking lot with that officer, while she and Clavijo went to talk to Blandon. They met Blandon in the hallway just outside the open door to her apartment. Asked to describe what she had seen, Blandon stated that, around a.
Clay asked Blandon for a more specific description of the man. Blandon was unable to identify Perry. Perry was charged in New Hampshire state court with one count of theft by unauthorized taking and one count of criminal mischief.
Blandon witnessed what amounted to a one-person showup in the parking lot, Perry asserted, which all but guaranteed that she would identify him as the culprit. The New Hampshire Superior Court denied the motion. First, the trial court must decide whether the police used an unnecessarily suggestive identification procedure.
If they did, the court must next consider whether the improper identification procedure so tainted the resulting identification as to render it unreliable and therefore inadmissible. Nor did Clay ask Blandon to move to the window from which she had observed the break-in. The jury found Perry guilty of theft and not guilty of criminal mischief. The trial court erred, Perry contended, in requiring an initial showing that the police arranged the suggestive identification procedure.
Only where the police employ suggestive identification techniques, that court held, does the Due Process Clause require a trial court to assess the reliability of identification evidence before permitting a jury to consider it.
We granted certiorari to resolve a division of opinion on the question whether the Due Process Clause requires a trial judge to conduct a preliminary assessment of the reliability of an eyewitness identification made under suggestive circumstances not arranged by the police.
The Constitution, our decisions indicate, protects a de- fendant against a conviction based on evidence of questionable reliability, not by prohibiting introduction of the evidence, but by affording the defendant means to persuade the jury that the evidence should be discounted as unworthy of credit. Wainwright , U. Illinois , U. Fensterer , U. Apart from these guarantees, we have recognized, state and federal statutes and rules ordinarily govern the admissibility of evidence, and juries are assigned the task of determining the reliability of the evidence presented at trial.
See Kansas v. Ventris , U. See, e. In Stovall v. At the time the witness made the identification, the defendant—the only African-American in the room—was handcuffed and surrounded by police officers. Although the police-arranged showup was undeniably suggestive, the Court held that no due process violation occurred.
A year later, in Simmons v. In contrast, the Court held in Foster v. Synthesizing previous decisions, we set forth in Neil v. The Court emphasized, first, that due process concerns arise only when law enforcement officers use an identification procedure that is both suggestive and unnecessary. Even when the police use such a procedure, the Court next said, suppression of the resulting identification is not the inevitable consequence.
Otherwise, the evidence if admissible in all other respects should be submitted to the jury. Similarly, the Court concluded in Brathwaite that police use of an unnecessarily suggestive photo array did not require exclusion of the resulting identification. The witness, an undercover police officer, viewed the defendant in good light for several minutes, provided a thorough description of the suspect, and was certain of his identification.
See Brief for Petitioner 34; Tr. He contends, however, that it was mere happenstance that each of the Stovall cases involved improper police action. The rationale underlying our decisions, Perry asserts, supports a rule requiring trial judges to prescreen eyewitness evidence for reliability any time an identification is made under suggestive circumstances. We disagree.
If reliability is the linchpin of admissibility under the Due Process Clause, Perry maintains, it should make no difference whether law enforcement was responsible for creating the suggestive circumstances that marred the identification. Perry has removed our statement in Brathwaite from its mooring, and thereby attributes to the statement a meaning a fair reading of our opinion does not bear.
The Court adopted a judicial screen for reliability as a course preferable to a per se rule requiring exclusion of identification evidence whenever law enforcement officers employ an improper procedure. The very purpose of the check, the Court noted, was to avoid depriving the jury of identification evidence that is reliable, notwithstanding improper police conduct.
Post, at 3—4. Both ignore a key premise of the Brathwaite decision: A primary aim of ex- cluding identification evidence obtained under unnecessarily suggestive circumstances, the Court said, is to deter law enforcement use of improper lineups, showups, and photo arrays in the first place.
See U. Coleman v. Alabama , U. The Court rejected this argument. See also Colorado v. Connelly , U. Perry and the dissent place significant weight on United States v. Wade , U. See Brief for Petitioner 12, 15, 21—22, 28; post, at 2—4, 8— Moreover, his position would open the door to judicial preview, under the banner of due process, of most, if not all, eyewitness identifications. Most eyewitness identifications involve some element of suggestion. Indeed, all in-court identifications do.
Out-of-court identifications volunteered by witnesses are also likely to involve suggestive circumstances. Or suppose the witness knew that the defendant ran with the wrong crowd and saw him on the day and in the vicinity of the crime. In urging a broadly applicable due process check on eyewitness identifications, Perry maintains that eyewitness identifications are a uniquely unreliable form of evidence.
See Brief for Petitioner 17—22 citing studies showing that eyewitness misidentifications are the leading cause of wrongful convictions ; Brief for American Psychological Association as Amicus Curiae 14—17 describing research indicating that as many as one in three eyewitness identifications is inaccurate.
See also post, at 14— We do not doubt either the importance or the fallibility of eyewitness identifications. We reach a similar conclusion here: The fallibility of eyewitness evidence does not, without the taint of improper state conduct, warrant a due process rule requiring a trial court to screen such evidence for reliability before allowing the jury to assess its creditworthiness.
Our unwillingness to enlarge the domain of due process as Perry and the dissent urge rests, in large part, on our recognition that the jury, not the judge, traditionally de- termines the reliability of evidence. See supra , at 7. We also take account of other safeguards built into our adversary system that caution juries against placing undue weight on eyewitness testimony of questionable reliability.
See Maryland v. Craig , U. Eyewitness-specific jury instructions, which many federal and state courts have adopted, 7 likewise warn the jury to take care in appraising identification evidence. Telfaire , F.
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