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Criminal Resource Manual

241. Lineup—Due Process

Testimony concerning a lineup or showup identification is inadmissible if, considering the "totality of the circumstances," the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification. See Manson v. Brathwaite, 432 U.S. 98 (1977); Neil v. Biggers, 409 U.S. 188 (1972); Stovall v. Denno, 388 U.S. 293 (1967). 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. The factors used to establish an independent source where a lineup or showup has been conducted in violation of the defendant's right to counsel are also applicable here.

[cited in Criminal Resource Manual 245]