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Foster v. California


Following a robbery, officers presented a lineup to the only witness to the crime. The defendant was placed in the lineup with two other men. While the defendant was approximately six feet tall, the other two men were six to seven inches shorter. Additionally, the defendant wore a leather jacket that the witness stated was similar to one wore by the robber. When the witness was unable to identify the defendant as the robber, he requested, and was granted, the opportunity to speak with the defendant alone. He was still unable to identify the defendant as the robber. Approximately 10 days later, a second lineup was held, this time with five men. The defendant was the only man in the second lineup that had also appeared in the first lineup. This time, the witness positively identified him as the robber. He was ultimately convicted of robbery.


Whether the lineup procedures were conducted in a manner that could produce mistaken identification so as to deny due process of law?


Yes. Judged by the “totality of the circumstances,” the lineup was unnecessarily suggestive of the defendant as the criminal.


The Supreme Court held that the identification procedures utilized by the government violated the defendant’s right to due process. Looking at the “totality of the circumstances” in this case, “the suggestive elements in this identification procedure made it all but inevitable that the witness would identify the defendant as the robber, whether or not he was in fact the man.” In the first lineup, the defendant stood out from the other two men due to the physical differences. He was also the only participant in the lineup wearing clothing similar to that worn by the actual robber. Because the witness was still unable to identify the defendant, the government permitted a “one on one” confrontation between the witness and the defendant. “The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.” The second lineup was unfairly suggestive because the defendant was the only participant who was also in the first lineup. “In effect, the police repeatedly said to the witness, ‘This is the man.’ This procedure so undermined the reliability of the eyewitness identification so as to violate due process.”


394 U.S. 440, 89 S. Ct. 1127 (1969)

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