Bare Necessity: Simplifying the Standard for Admitting Showup Identifications

Abstract

In 1967, the Supreme Court held that admitting the results of an unnecessarily suggestive police identification procedure could violate a defendant’s right to due process. Over the next decade, several rulings narrowed and clarified the standard into the Brathwaite test, which remains in use today. This test allows the admission of identifications obtained through unnecessarily suggestive procedures if a court finds the identification to nonetheless be reliable. Applying the test requires courts to rule on a procedure’s necessity, its suggestiveness, and the resulting identification’s reliability. Making these determinations forces courts to grapple with intertwined questions of law and fact—questions whose answers have changed with advances in the scientific understanding of memory. The most commonly used type of suggestive procedure, known as a showup, involves a witness viewing a single suspect for identification. Although showup procedures can be useful when a lineup or photo array is not feasible, showups significantly increase misidentifications because the procedure implicitly tells a witness who the police believe is guilty, rendering the technique inherently suggestive. Further, because showups do not test a witness’s memory, they cannot safeguard against a mistaken witness, like a lineup can. To help courts avoid the difficult task of analyzing showup identifications for reliability, this Note proposes a simplified test for admitting them, arguing that courts may look to a showup’s necessity as the sole determining factor of admissibility. By considering the interplay of increased scientific understanding with existing law, this Note demonstrates that the proposed simplification is not only sound policy but is also permissible and advisable under current Supreme Court doctrine.