JUSTICE STEWART delivered the opinion of the Court.
These cases, consolidated for argument and decision in the Court of Appeals and in this Court, present the question whether a state criminal trial court is constitutionally compelled to conduct a hearing outside the presence of the jury whenever a defendant contends that a witness' identification of him was arrived at improperly.
John Watkins, the petitioner in No. 79-5949, was convicted in a Kentucky court of attempting to rob a Louisville liquor store. On the night of January 11, 1975, four men entered the store, one of whom asked for a pack of cigarettes. Walter Smith, an employee of the store, turned around to get the cigarettes, and one of the men said "[t]his is a hold-up." Donald Goeing, a part owner of the store, had been stocking a soft-drink cooler, and when he heard those words, he turned towards the robbers. The man who had spoken thereupon fired two shots at him, one striking him in his arm, the other in the region of his heart. The four men then fled.
That night Smith and Goeing described the gunman to the police. Two days later, the police in the presence of Smith conducted a lineup consisting of three men, one of whom was
At the subsequent trial of Watkins, the prosecution called Smith and Goeing as witnesses. They both identified Watkins as Goeing's assailant but were not asked by the prosecution about the lineup or the showup. Watkins' counsel, however, cross-examined both men at some length about both the lineup and showup. The prosecution then called a police officer. He testified that he had taken Watkins to be identified at the hospital because "at that time there was some question as to whether or not Mr. Goeing was going to survive the incident." Watkins' counsel cross-examined the officer about both the showup and the lineup and through him introduced pictures of the lineup. For the defense, Watkins' counsel called two witnesses who said that they had been in a pool hall with Watkins at the time of the robbery and another witness who said he had been in the liquor store at the time of the robbery and had not seen Watkins. Finally, Watkins himself testified to his innocence.
On appeal, as he had at trial, counsel for Watkins argued that the trial court had a constitutional obligation to conduct a hearing outside the presence of the jury to determine whether the identification evidence was admissible. The Supreme Court of Kentucky rejected that argument. Relying on its decision in Ray v. Commonwealth, 550 S.W.2d 482, 483 (1977), the court said "`[a]lthough we are of the opinion that the holding of such a hearing prior to the introduction of this testimony would have been the preferred course to follow, we are not persuaded the failure to have done so requires reversal of appellant's conviction.'" Watkins v. Commonwealth, 565 S.W.2d 630, 631 (1978). The court found that the identification procedures "fail[ed] to
Watkins then unsuccessfully sought a writ of habeas corpus in the United States District Court for the Western District of Kentucky. That court held that, "although pretrial suppression hearings are preferable, the failure to hold them does not require the reversal of a conviction."
The Court of Appeals for the Sixth Circuit affirmed the District Court's judgment and, like the District Court, ruled that a hearing on the admissibility of identification evidence need not be held outside the presence of the jury. Turning to the evidence itself, the court cited Stovall v. Denno, 388 U.S. 293, as authority for holding that "[g]iven the seriousness of the wounds to Donald Goeing, a showup was necessary in this case." Summitt v. Bordenkircher, 608 F.2d 247, 252. The federal appellate court also held that the lineup evidence had been constitutionally admissible at the state trial.
James Summitt, the petitioner in No. 79-5951, was convicted in a Kentucky court of rape. Late on the night of July 20, 1974, the prosecutrix was forced into a car occupied by two men, driven to an isolated location, raped by one of the men, and then returned to her own car. The next day she reported the crime to the police, described the rapist, and looked through 12 volumes of photographs from police files, without identifying the man who had raped her. Two days later she was taken to another police station, where she examined more pictures. A police officer testified at the subsequent trial of Summitt that "after a short time she pointed to the defendant's picture and said: `This is the man that raped me.
The Supreme Court of Kentucky found "no error in the trial court's refusal to conduct a suppression hearing and no semblance of impermissible suggestiveness in the identification procedure." Summitt v. Commonwealth, 550 S.W.2d 548, 550 (1977). Summitt then sought a writ of habeas corpus in the United States District Court for the Western District of Kentucky, but that court found no constitutional error. The Court of Appeals, as in the consolidated Watkins case, affirmed the judgment of the District Court, 608 F.2d 247.
We granted certiorari to consider the constitutional claim asserted by both petitioners throughout their state and federal court proceedings. Sub nom. Watkins v. Bordenkircher and Summitt v. Bordenkircher, 445 U.S. 926.
The issue before us is not, of course, whether a trial court acts prudently in holding a hearing out of the presence of the jury to determine the admissibility of identification evidence. The prudence of such a hearing has been emphasized by many decisions in the Courts of Appeals, most of which have in various ways admonished trial courts to use that procedure.
In urging an affirmative answer, the petitioners first cite cases holding that a defendant has a right to the presence of his counsel at a postindictment lineup, e. g., United States v. Wade, 388 U.S. 218, and that an identification procedure, in the absence of a lineup, may be so defective as to deprive a defendant of due process of law, e. g., Stovall v. Denno, 388 U.S. 293. The petitioners then analogize their cases to Jackson v. Denno, 378 U.S. 368, in which this Court enunciated a defendant's right "to have a fair hearing and a reliable determination on the issue of voluntariness," id., at 377, and in which the Court declared unconstitutional a New York procedure which gave the jury what was in practice unreviewable discretion to decide whether a confession was or was not voluntary.
The petitioners contend that Jackson v. Denno established a per se due process right to a hearing outside the presence of the jury whenever a question of the voluntariness of a confession is raised. If such a hearing is required where the voluntariness of a confession is at issue, it follows, the petitioners argue, that a similar hearing must also be required where the propriety of identification procedures has been questioned.
Even if it be assumed that Jackson v. Denno did establish the per se rule asserted,
Where identification evidence is at issue, however, no such special considerations justify a departure from the presumption that juries will follow instructions. It is the reliability of identification evidence that primarily determines its admissibility, Manson v. Brathwaite, 432 U.S. 98, 113-114; United States ex rel. Kirby v. Sturges, 510 F.2d 397, 402-404 (CA7 1975) (Stevens, J.). And the proper evaluation of evidence under the instructions of the trial judge is the very task our system must assume juries can perform. Indeed, as the cases before us demonstrate, the only duty of a jury in cases in which identification evidence has been admitted will often be to asses the reliability of that evidence. Thus the
The petitioners argue, however, that cross-examination is inadequate in cases such as these. They assert that the presence of the jury deterred their lawyers from cross-examining the witnesses vigorously and fully as to the possible improprieties of the pretrial identifications in these cases. The petitioners point to no specific instances in the trial when their counsel were thus deterred, and the record reveals that the cross-examination on the identity issues was, if not always effective, both active and extended. Nonetheless, the petitioners rely on a passage from United States v. Wade, supra, which referred to
The petitioners, however, attribute undue significance to this passage. The "predicament" described in Wade was no
A "predicament," if one chooses to call it that, is always presented when a lawyer decides on cross-examination to ask a question that may produce an answer unfavorable to his client. Yet, under our adversary system of justice, cross-examination has always been considered a most effective way to ascertain truth.
A judicial determination outside the presence of the jury of the admissibility of identification evidence may often be advisable. In some circumstances, not presented here, such a determination may be constitutionally necessary. But it does not follow that the Constitution requires a per se rule compelling such a procedure in every case.
Accordingly, the judgments are
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.
The Court holds that the Due Process Clause of the Fourteenth Amendment did not require that the trial judge in each of the instant cases hold a "fair hearing," Jackson v. Denno, 378 U.S. 368, 377 (1964), to decide the admissibility of eyewitness identification evidence, and that a remand is not now required to accord such a hearing. While freely conceding that a "judicial determination outside the presence of the
At least since United States v. Wade, 388 U.S. 218 (1967), the Court has recognized the inherently suspect qualities of eyewitness identification evidence.
Manson v. Brathwaite, 432 U.S. 98, 111-112 (1977), emphasized this troublesome characteristic of such evidence:
Accordingly, to guard against the "dangers inherent in eyewitness identification," United States v. Wade, supra, at 235, the Court has required the presence of counsel at postindictment lineups, 388 U. S., at 236-237,
Second, despite its inherent unreliability, much eyewitness identification evidence has a powerful impact on juries. Juries seem most receptive to, and not inclined to discredit, testimony of a witness who states that he saw the defendant commit the crime.
The powerful impact that much eyewitness identification evidence has on juries, regardless of its reliability,
Any purported distinction between the instant cases and Jackson is plainly specious. In Jackson, this Court invalidated a New York State procedure whereby the jury was instructed first to determine the voluntariness of a defendant's confession
For purposes of the instant cases, three factors central to our decision in Jackson are apposite. First, Jackson stated, as the Court today notes, ante, at 347, "that the Fourteenth Amendment forbids the use of involuntary confession . . . because of the probable unreliability of confessions that are obtained in a manner deemed coercive." 378 U. S., at 385-386. Second, Jackson stated, as the Court today further notes, ante, at 347, that involuntary confessions are inadmissible "because of the `strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will.'" 378 U. S., at 386.
Similar considerations plainly require a hearing in the case of identification evidence. First, there can be little doubt that identification evidence is as potentially unreliable as confession evidence. See supra, at 350-352. Second, suggestive confrontation procedures which, in the totality of the circumstances, create "`a very substantial likelihood of irreparable misidentification,'" Manson v. Brathwaite, 432 U. S., at 116, quoting Simmons v. United States, 390 U.S. 377, 384 (1968), are as impermissible a police practice as the securing of a custodial confession determined, in the totality of the circumstances, to be involuntary, see United States v. Washington, 431 U.S. 181, 188 (1977); cf. North Carolina v. Butler,
Nor can it be assumed, as the Court has, that cross-examination will protect the accused in this circumstance. That is no more true here than it was in Jackson, where the defendant was also allowed to cross-examine on the question of voluntariness. Cross-examination, of course, affects the weight and credibility given by the jury to evidence,
It is clear beyond peradventure, I submit, that because of the dangers to a just result inherent in identification evidence —its unreliability and its unusual impact on the jury— a "fair hearing and a reliable determination" of admissibility, Jackson v. Denno, 378 U. S., at 377, are constitutionally mandated. The Due Process Clause obviously precludes the jury from convicting on unreliable identification evidence. Manson v. Brathwaite, supra.
In the instant cases, the suggestiveness of the confrontation procedures was clearly shown, and equally clearly cross-examination in front of the jury was inadequate to test the reliability of the evidence because of the undoubted inhibiting effect on cross-examination from fear that rigorous questioning of hostile witnesses would strengthen the eyewitnesses' testimony and impress it upon the jury. See United States v. Wade, 388 U. S., at 240-241.
"This Court has never ruled that all voluntariness hearings must be held outside the presence of the jury, regardless of the circumstances. . . . [B]ecause a disputed confession may be found involuntary and inadmissible by the judge, it would seem prudent to hold voluntariness hearings outside the presence of the jury. . . . In this case, however, the confession was held voluntary and admitted as evidence suitable for consideration by the jury."
Wall, supra, at 19 (footnotes omitted) (emphasis supplied), concludes:
"[J]uries are unduly receptive to identification evidence and are not sufficiently aware of its dangers. It has been said that `positive recognition by well intended uninterested persons is commonly accepted unless the alibi is convincing,' and that evidence of identification, however untrustworthy, is `taken by the average juryman as absolute proof.'"
"`Due Process of law requires that a coerced confession be excluded from consideration by the jury. It also requires that the issue of coercion be tried by an unprejudiced trier, and, regardless of the pious fictions indulged by the courts, it is useless to contend that a juror who has heard the confession can be uninfluenced by his opinion as to the truth or falsity of it. . . . And the rule of exclusion ought not to be emasculated by admitting the evidence and giving to the jury an instruction which, as every judge and lawyer knows, cannot be obeyed.'" 378 U. S., at 382-383, n. 10, quoting E. Morgan, Some Problems of Proof Under the Anglo-American System of Litigation 104-105 (1956).
"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. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature."
"[I]t is only a reliable determination on the voluntariness issue which satisfies the constitutional rights of the defendant and which would permit the jury to consider the confession in adjudicating guilt or innocence." 378 U. S., at 387.
If the Court's result is out of concern for not adding another layer of complexity to criminal litigation, that is understandable, but not sufficient to supplant an accused's constitutional right. Moreover, a rule requiring the defendant to proffer some minimum quantum of evidence showing the suggestiveness of the confrontation procedures would eliminate frivolous requests. See, e. g., United States ex rel. Fisher v. Driber, supra, at 22.
In addition, the Commonwealth of Kentucky, where petitioners were tried and convicted, appears to require a hearing out of the presence of the jury, upon defendant's motion, for confession and for search evidence. See Ky. Rule Crim. Proc. 9.78. In addition, Moore v. Commonwealth, 569 S.W.2d 150, 153 (Ky. 1978), decided after petitioners were convicted, held that the trial court's refusal to hold a suppression hearing to determine the admissibility of identification evidence constituted error. Previous Kentucky appellate decisions had reached a similar conclusion. E. g., Francis v. Commonwealth, 468 S.W.2d 287 (App. 1971).