No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
In criminal trials, the reliability and weight to be accorded an eyewitness identification ordinarily are for the jury to decide, guided by instructions by the trial judge and subject to judicial prerogatives under the rules of evidence to exclude otherwise relevant evidence whose probative value is substantially outweighed by its prejudicial impact or potential to mislead. At times, however, a defendant alleges an out-of-court identification in the presence of police is so flawed that it is inadmissible as a matter of fundamental justice under due process.1 These cases most commonly challenge such police-arranged procedures as lineups, showups, photographic displays, and the like.2 But not all cases have alleged careful police orchestration.3
The Court generally disfavors judicial suppression of eyewitness identifications on due process grounds in lieu of having identification testimony tested in the normal course of the adversarial process.4 Two elements are required for due process suppression. First, law enforcement officers must have participated in an identification process that was both suggestive and unnecessary.5 Second, the identification procedures must have created a substantial prospect for misidentification. Determination of these elements is made by examining the
totality of the circumstances of a case.6The Court has not recognized any per se rule for excluding an eyewitness identification on due process grounds.7 Defendants have had difficulty meeting the Court's standards: Only one challenge has been successful.8