Manson v. Brathwaite

Me. Justice Blackmun

delivered the opinion of the Court.

This case presents the issue as to whether the Due Process Clause of the Fourteenth Amendment compels the exclusion, in a state criminal trial, apart from any consideration of reliability, of pretrihl identification evidence obtained by a police procedure that was both suggestive and unnecessary. This Court’s decisions in Stovall v. Denno, 388 U. S. 293 (1967), and Neil v. Biggers, 409 U. S. 188 (1972), are particularly implicated.

I

Jimmy D. Glover, a full-time trooper of the Connecticut State Police, in 1970 was assigned to the Narcotics Division in an undercover capacity. On May 5 of that year, about *100 7:45 p. m., e. d. t., and while there was still daylight, Glover and Henry Alton Brown, an informant, went to an apartment building at 201 Westland, in Hartford, for the purpose of purchasing narcotics from “Dickie Boy” Cicero, a known narcotics dealer. Cicero, it was thought, lived on the third floor of that apartment building. Tr. 45-46, 68.1 Glover and Brown entered the building, observed by backup Officers D’Onofrio and Gaffey, and proceeded by stairs to the third floor. Glover knocked at the door of one of the two apartments served by the stairway.2 The area was illuminated by natural light from a window in the third floor hallway. Id., at 27-28. The door was opened 12 to 18 inches in response to the knock. Glover observed a man standing at the door and, behind him, a woman. Brown identified himself. Glover then asked for “two things” of narcotics. Id., at 29. The man at the door held out his hand, and Glover gave him two $10 bills. The door closed. Soon the man returned and handed Glover two glassine bags.3 While the door was open, Glover stood within two feet of the person from whom he made the purchase and observed his face. Five to seven minutes elapsed from the *101 time the door first opened until it closed the second time. Id., at 30-33.

Glover and Brown then left the building. This was about eight minutes after their arrival. Glover drove to headquarters where he described the seller to D’Onofrio and Gaffey. Glover at that time did not know the identity of the seller. Id., at 36. He described him as being “a colored man, approximately five feet eleven inches tall, dark complexion, black hair, short Afro style, and having high cheekbones, and of heavy build. He was wearing at the time blue pants and a plaid shirt.” Id., at 36-37. D’Onofrio, suspecting from this description that respondent might be the seller, obtained a photograph of respondent from the Records Division of the Hartford Police Department. He left it at Glover’s office. D’Onofrio was not acquainted with respondent personally, but did know him by sight and had seen him “[s]everal times” prior to May 5. Id., at 63-65. Glover, when alone, viewed the photograph for the first time upon his return to headquarters on May 7; he identified the person shown as the one from whom he had purchased the narcotics. Id., at 36-38.

The toxicological report on the contents of the glassine bags revealed the presence of heroin. The report was dated July 16, 1970. Id., at 75-76.

Respondent was arrested on July 27 while visiting at the apartment of a Mrs. Ramsey on the third floor of 201 West-land. This was the apartment at which the narcotics sale had taken place on May 5.4

Respondent was charged, in a two-count information, with possession and sale of heroin, in violation of Conn. Gen. Stat. (Rev. of 1958, as amended in 1969), §§ 19-481a and 19-480a *102 (1977).5 At his trial in January 1971, the photograph from which Glover had identified respondent was received in evidence without objection on the part of the defense. Tr. 38. Glover also testified that, although he had not seen respondent in the eight months that had elapsed since the sale, “there [was] no doubt whatsoever” in his mind that the person shown on the photograph was respondent. Id., at 41-42. Glover also made a positive in-court identification without objection. Id., at 37-38.

No explanation was offered by the prosecution for the failure to utilize a photographic array or to conduct a lineup.

Respondent, who took the stand in his own defense, testified that on May 5, the day in question, he had been ill at his Albany Avenue apartment (“a lot of back pains, muscle spasms ... a bad heart . . . high blood pressure . . . neuralgia in my face, and sinus,” id., at 106), and that at no time on that particular day had he been at 201 Westland. Id., at 106, 113-114. His wife testified that she recalled, after her husband had refreshed her memory, that he was home all day on May 5. Id., at 164-166. Doctor Wesley M. Vietzke, an internist and assistant professor of medicine at the University of Connecticut, testified that respondent had consulted him on April 15, 1970, and that he took a medical history from him, heard his complaints about his back and facial pain, and discovered that he had high blood pressure. Id., at 129-131. The physician found respondent, subjectively, “in great discomfort.” Id., at 135. Respondent in fact underwent surgery for a herniated disc at L5 and SI on August 17. Id., at 157.

The jury found respondent guilty on both counts of the information. He received a. sentence of not less than six nor *103 more than nine years. His conviction was affirmed per curiam by the Supreme Court of Connecticut. State v. Brathwaite, 164 Conn. 617, 325 A. 2d 284 (1973). That court noted the absence of an objection to Glover’s in-court identification and concluded that respondent “has not shown that substantial injustice resulted from the admission of this evidence.” Id., at 619, 325 A. 2d, at 285. Under Connecticut law, substantial injustice must be shown before a claim of error not made or passed on by the trial court will be considered on appeal. Ibid.

Fourteen months later, respondent filed a petition for ha-beas corpus in the United States District Court for the District of Connecticut. He alleged that the admission of the identification testimony at his state trial deprived him of due process of law to which he was entitled under the Fourteenth Amendment. The District Court, by an unreported written opinion based on the court’s review of the state trial transcript,6 dismissed respondent’s petition. On appeal, the United States Court of Appeals for the Second Circuit reversed, with instructions to issue the writ unless the State gave notice of a desire to retry respondent and the new trial occurred within a reasonable time to be fixed by the District Judge.7 527 F. 2d 363 (1975).

In brief summary, the court felt that evidence as to the photograph should have been excluded, regardless of relia *104 bility, because the examination of the single photograph was unnecessary and suggestive. And, in the court's view, the evidence was unreliable in any event. We granted certiorari. 425 U. S. 957 (1976).

II

Stovall v. Denno, supra, decided in 1967, concerned a petitioner who had been convicted in a New York court of murder. He was arrested the day following the crime and was taken by the police to a hospital where the victim’s wife, also wounded in the assault, was a patient. After observing Stovall and hearing him speak, she identified him as the murderer. She later made an in-court identification. On federal habeas, Stovall claimed the identification testimony violated his Fifth, Sixth, and Fourteenth Amendment rights. The District Court dismissed the petition, and the Court of Appeals, en banc, affirmed. This Court also affirmed. On the identification issue, the Court reviewed the practice of showing a suspect singly for purposes of identification, and the claim that this was so unnecessarily suggestive and conducive to irreparable mistaken identification that it constituted a denial of due process of law. The Court noted that the practice “has been widely condemned,” 388 U. S., at 302, but it concluded that “a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it.” Ibid. In that case, showing Stovall to.the victim’s spouse “was imperative.” The Court then quoted the observations of the Court of Appeals, 355 F. 2d 731, 735 (CA2 1966), to the effect that the spouse was the only person who could possibly exonerate the accused; that the hospital was not far from the courthouse and jail; that no one knew how long she might live; that she was not able to visit the jail; and that taking Stovall to the hospital room was the only feasible procedure, and, under the circumstances, “ 'the usual police station line-up . . . was out of the question.’ ” 388 U. S., at 302.

*105 Neil v. Biggers, supra, decided in 1972, concerned a respondent who had been convicted in a Tennessee court of rape, on evidence consisting in part of the victim’s visual and voice identification of Biggers at a station-house showup seven months after the crime. The victim had been in her assailant’s presence for some time and had directly observed him indoors and under a full moon outdoors. She testified that she had “no doubt” that Biggers was her assailant. She previously had given the police a description of the assailant. She had made no identification of others presented at previous showups, lineups, or through photographs. On federal habeas, the District Court held that the confrontation was so suggestive as to violate due process. The Court of Appeals affirmed. This Court reversed on that issue, and held that the evidence properly had been allowed to go to the jury. The Court reviewed Stovall and certain later cases where it had considered the scope of due process protection against the admission of evidence derived from suggestive identification procedures, namely, Simmons v. United States, 390 U. S. 377 (1968); Foster v. California, 394 U. S. 440 (1969); and Coleman v. Alabama, 399 U. S. 1 (1970).8 The Court concluded that *106 general guidelines emerged from these cases “as to the relationship between suggestiveness and misidentification.” The “admission of evidence of a showup without more does not violate due process.” 409 U. S., at 198. The Court expressed concern about the lapse of seven months between the crime and the confrontation and observed that this “would be a seriously negative factor in most cases.” Id., at 201. The “central question,” however, was “whether under the 'totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive.” Id., at 199. Applying that test, the Court found “no substantial likelihood of misidentification. The evidence was properly allowed to go to the jury.” Id., at 201.

Biggers well might be seen to provide an unambiguous answer to the question before us: The admission of testimony concerning a suggestive and unnecessary identification procedure does not violate due process so long as the identification possesses sufficient aspects of reliability.9 In one passage, *107 however, the Court observed that the challenged procedure occurred pre-Stovall and that a strict rule would make little sense with regard to a confrontation that preceded the Court’s first indication that a suggestive procedure might lead to the exclusion of evidence. Id., at 199. One perhaps might argue that, by implication, the Court suggested that a different rule could apply post-Stóvall. The question before us, then, is simply whether the Biggers analysis applies to post-Stovall confrontations as well to those pre-Stovall.

Ill

In the present case the District Court observed that the “sole evidence tying Brathwaite to the possession and sale of the heroin consisted in his identifications by the police undercover agent, Jimmy Glover.” App. to Pet. for Cert. 6a. On the constitutional issue, the court stated that the first inquiry was whether the police used an impermissibly suggestive procedure in obtaining the out-of-court identification. If so, the second inquiry is whether, under all the circumstances, that suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. Id., at 9a. Biggers and Simmons were cited. The court noted that in the Second Circuit, its controlling court, it was clear that “this type of identification procedure [display of a single photograph] is impermissibly *108 suggestive,” and turned to the second inquiry. App. to Pet. for Cert. 9a. The factors Biggers specified for consideration were recited and applied. The court concluded that there was no substantial likelihood of irreparable misidentification. It referred to the facts: Glover was within two feet of the seller. The duration of the confrontation was at least a “couple of minutes.” There was natural light from a window or skylight and there was adequate light to see clearly in the hall. Glover “certainly was paying attention to" identify the seller.” Id., at 10a. He was a trained police officer who realized that later he would have to find and arrest the person with whom he was dealing. He gave a detailed description to D’Onofrio. The reliability of this description was supported by the fact that it enabled D’Onofrio to pick out a single photograph that was thereafter positively identified by Glover. Only two days elapsed between the crime and the photographic identification. Despite the fact that another eight months passed before the in-court identification, Glover had “no doubt” that Brathwaite was the person who had sold him heroin.

The Court of Appeals confirmed that the exhibition of the single photograph to Glover was “impermissibly suggestive,” 527 F. 2d, at 366, and felt that, in addition, “it was unnecessarily so.” Id., at 367. There was no emergency and little urgency. The court said that prior to the decision in Biggers, except in cases of harmless error, “a conviction secured as the result of admitting an identification obtained by impermissibly suggestive and unnecessary measures could not stand.” Ibid. It noted what it felt might be opposing inferences to be drawn from passages in Biggers, but concluded that the case preserved the principle “requiring the exclusion of identifications resulting from 'unnecessarily suggestive confrontation’ ” in post-Stovall situations. 527 F. 2d, at 368. The court also concluded that for -post-Stovall identifications, Biggers had not changed the existing rule. Thus: “Evidence of an identification unnecessarily obtained by impermissibly *109 suggestive means must be excluded under Stovall .... No rules less stringent than these can force police administrators and prosecutors to adopt procedures that will give fair assurance against the awful risks of misidentification.” 527 F. 2d, at 371. Finally, the court said, even if this conclusion were wrong, the writ, nevertheless, should issue. It took judicial notice that on May 5, 1970, sunset at Hartford was at 7:53 p. m. It characterized Glover’s duty as an undercover agent as one “to cause arrests to be made,” and his description of the suspect as one that “could have applied to hundreds of Hartford black males.” Ibid. The in-court identification had “little meaning,” for Brathwaite was at the counsel table. The fact that respondent was arrested in the very apartment where the sale was made was subject to a “not implausible” explanation from the respondent, “although evidently not credited by the jury.” And the court was troubled by “the long and unexplained delay” in the arrest. It was too great a danger that the respondent was convicted because he was a man D’Onofrio had previously observed near the scene, was thought to be a likely offender, and was arrested when he was known to be in Mrs. Ramsey’s apartment, rather than because Glover “really remembered him as the seller.” Id., at 371-372.

IY

Petitioner at the outset acknowledges that “the procedure in the instant case was suggestive [because only one photograph was used] and unnecessary” [because there was no emergency or exigent circumstance]. Brief for Petitioner 10; Tr. of Oral Arg. 7. The respondent, in agreement with the Court of Appeals, proposes a per se rule of exclusion that he claims is dictated by the demands of the Fourteenth Amendment’s guarantee of due process. He rightly observes that this is the first case in which this Court has had occasion to rule upon strictly post-Stovall out-of-court identification evidence of the challenged kind.

*110 Since the decision in Biggers, the Courts of Appeals appear to have developed at least two approaches to such evidence. See Pulaski, Neil v. Biggers: The Supreme Court Dismantles the Wade Trilogy’s Due Process Protection, 26 Stan. L. Rev. 1097, 1111-1114 (1974). The first, or per se approach, employed by the Second Circuit in the present case, focuses on the procedures employed and requires exclusion of the out-of-court identification evidence, without regard to reliability, whenever it has been obtained through unnecessarily suggested confrontation procedures.10 The justifications advanced are the elimination of evidence of uncertain reliability, deterrence of the police and prosecutors, and the stated “fair assurance against the awful risks of misidentification.” 527 F. 2d, at 371. See Smith v. Coiner, 473 F. 2d 877, 882 (CA4), cert. denied sub nom. Wallace v. Smith, 414 U. S. 1115 (1973).

The second, or more lenient, approach is one that continues to rely on the totality of the circumstances. It permits the admission of the confrontation evidence if, despite the suggestive aspect, the out-of-court identification possesses certain features of reliability. Its adherents feel that the per se approach is not mandated by the Due Process Clause of the Fourteenth Amendment. This second approach, in contrast to the other, is ad hoc and serves to limit the societal costs imposed by a sanction that excludes relevant evidence from consideration and evaluation by the trier of fact. See United States ex rel. Kirby v. Sturges, 510 F. 2d 397, 407-408 (CA7) (opinion by Judge, now Mr. Justice, Stevens), cert. denied, 421 U. S. 1016 (1975); Stanley v. Cox, 486 F. 2d 48 *111 (CA4 1973), cert. denied sub nom. Stanley v. Slayton, 416 U. S. 958 (1974).11

Mr. Justice Stevens,

in writing for the Seventh Circuit in Kirby, supra, observed: “There is surprising unanimity among scholars in regarding such a rule [the per se approach] as essential to avoid serious risk of miscarriage of justice.” 510 F. 2d, at 405. He pointed out that well-known federal judges have taken the position that “evidence of, or derived from, a showup identification should be inadmissible unless the prosecutor can justify his failure to use a more reliable identification procedure.” Id., at 406. Indeed, the ALI Model Code of Pre-Arraignment Procedure §§ 160.1 and 160.2 (1975) (hereafter Model Code) frowns upon the use of a showup or the display of only a single photograph.

The respondent here stresses the same theme and the need for deterrence of improper identification practice, a factor he regards as pre-eminent. Photographic identification, it is said, continues to be needlessly employed. He notes that the legislative regulation “the Court had hoped [United States v.] Wade[, 388 U. S. 218, 239 (1967),] would engender,” Brief for Respondent 15, has not been forthcoming. He argues that a totality rule cannot be expected to have a significant deterrent impact; only a strict rule of exclusion will have direct and immediate impact on law enforcement agents. Identification evidence is so convincing to the jury that sweeping exclusionary rules are required. Fairness of the trial is threatened by suggestive confrontation evidence, and thus, it is said, an exclusionary rule has an established constitutional predicate.

There are, of course, several interests to be considered and taken into account. The driving force behind United States v. Wade, 388 U. S. 218 (1967), Gilbert v. California, 388 *112 U. S. 263 (1967) (right to counsel at a post-indictment lineup), and Stovall, all decided on the same day, was the Court’s concern with the problems of eyewitness identification. Usually the witness must testify about an encounter with a total stranger under circumstances of emergency or emotional stress. The witness’ recollection of the stranger can be distorted easily by the circumstances or by later actions of the police. Thus, Wade and its companion cases reflect the concern that the jury not hear eyewitness testimony unless that evidence has aspects of reliability. It must be observed that both approaches before us are responsive to this concern. The per se rule, however, goes too far since its application automatically and peremptorily, and without consideration of alleviating factors, keeps evidence from the jury that is reliable and relevant.

The second factor is deterrence. Although the per se approach has the more significant deterrent effect, the totality approach also has an influence on police behavior. The police will guard against unnecessarily suggestive procedures under the totality rule, as well as the per se one, for fear that their actions will lead to the exclusion of identifications as unreliable.12

The third factor is the effect on the administration of justice. Here the per se approach suffers serious drawbacks. Since it denies the trier reliable evidence, it may result, on occasion, in the guilty going free. Also, because of its rigidity, the per se approach may make error by the trial judge more likely than the totality approach. And in those cases in which the admission of identification evidence is error under the per se approach but not under the totality approach— *113 cases in which the identification is reliable despite an unnecessarily suggestive identification procedure — reversal is a Draconian sanction.13 Certainly, inflexible rules of exclusion that may frustrate rather than promote justice have not been viewed recently by this Court with unlimited enthusiasm. See, for example, the several opinions in Brewer v. Williams, 430 U. S. 387 (1977). See also United States v. Janis, 428 U. S. 433 (1976).

It is true, as has been noted, that the Court in Biggers referred to the pr e-Stovall character of the confrontation in that case. 409 U. S., at 199. But that observation was only one factor in the judgmental process. It does not translate into a holding that post-Stovall confrontation evidence automatically is to be excluded.

The standard, after all, is that of fairness as required by the Due Process Clause of the Fourteenth Amendment. See United States v. Lovasco, 431 U. S. 783, 790 (1977); Rochin v. California, 342 U. S. 165, 170-172 (1952). Stovall, with its reference to “the totality of the circumstances,” 388 U. S., at 302, ,and Biggers, with its continuing stress on the same totality, 409 U. S., at 199, did not, singly or together, establish a strict exclusionary rule or new standard of due process. Judge Leventhal, although speaking pre-Biggers and of a pr e-Wade situation, correctly has described Stovall as protecting an evidentiary interest and, at the same time, as recognizing the limited extent of that interest in our adversary system.14

*114 We therefore conclude that reliability is the linchpin in determining the admissibility of identification testimony for both pre- and post-Stovall confrontations. The factors to be considered are set out in Biggers. 409 U. S., at 199-200. These include the opportunity of the witness to view the. criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.

V

We turn, then, to the facts of this case and apply the analysis:

1. The opportunity to view. Glover testified that for two to three minutes he stood at the apartment door, within two feet of the respondent. The door opened twice, and each time the man stood at the door. The moments passed, the conversation took place, and payment was made. Glover looked directly at his vendor. It was near sunset, to be sure, but the sun had not yet set, so it was not dark or even dusk or twilight. Natural light from outside entered the hallway through a window. There was natural light, as well, from inside the apartment.

*115 2. The degree of attention. Glover was not a casual or passing observer, as is so often the case with eyewitness identification. Trooper Glover was a trained police officer on duty — and specialized and dangerous duty — when he called at the third floor of 201 Westland in Hartford on May 5, 1970. Glover himself was a Negro and unlikely to perceive only general features of “hundreds of Hartford black males,” as the Court of Appeals stated. 527 F. 2d, at 371. It is true that Glover’s duty was that of ferreting out narcotics offenders and that he would be expected in his work to produce results. But it is also true that, as a specially trained, assigned, and experienced officer, he could be expected to pay scrupulous attention to detail, for hé knew that subsequently he would have to find and arrest his vendor. In addition, he knew that his claimed observations would be subject later to close scrutiny and examination at any trial.

3. The accuracy of the description. Glover’s description was given to D’Onofrio within minutes after the transaction. It included the vendor’s race, his height, his build, the color and style of his hair, and the high cheekbone facial feature. It also included clothing the vendor wore. No claim has been made that respondent did not possess the physical characteristics so described. D’Onofrio reacted positively at once. Two days later, when Glover was alone, he viewed the photograph D’Onofrio produced and identified its subject as the narcotics seller.

4. The witness’ level of certainty. There is no dispute that the photograph in question was that of respondent. Glover, in response to a question whether the photograph was that of the person from whom he made the purchase, testified: “There is no question whatsoever.” Tr. 38. This positive assurance was repeated. Id., at 41-42.

5. The time between the crime and the confrontation. Glover’s description of his vendor was given to D’Onofrio *116 within minutes of the crime. The photographic identification took place only two days later. We do not have here the passage of weeks or months between the crime and the viewing of the photograph.

These indicators of Glover’s ability to make an accurate identification are hardly outweighed by the corrupting effect of the challenged identification itself. Although identifications arising from single-photograph displays may be viewed in general with suspicion, see Simmons v. United States, 390 U. S., at 383, we find in the instant case little pressure on the witness to acquiesce in the suggestion that such a display entails. D’Onofrio had left the photograph at Glover’s office and was not present when Glover first viewed it two days after the event. There thus was little urgency and Glover could view the photograph at his leisure. And since Glover examined the photograph alone, there was no coercive pressure to make an identification arising from the presence of another. The identification was made in circumstances allowing care and reflection.

Although it plays no part in our analysis, all this assurance as to the reliability of the identification is hardly undermined by the facts that respondent was arrested in the very apartment where the sale had taken place, and that he acknowledged his frequent visits to that apartment.15

Surely, we cannot say that under all the circumstances of this case there is “a very substantial likelihood of irreparable misidentification.” Id., at 384. Short of that point, such evidence is for the jury to weigh. 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.

*117 Of course, it would have been better had D’Onofrio presented Glover with a photographic array including “so far as practicable ... a reasonable number of persons similar to any person then suspected whose likeness is included in the array.” Model Code § 160.2 (2). The use of that procedure would have enhanced the force of the identification at trial and would have avoided the risk that the evidence would be excluded as unreliable. But we are not disposed to view D’Onofrio’s failure as one of constitutional dimension to be enforced by a rigorous and unbending exclusionary rule. The defect, if there be one, goes to weight and not to substance.16

We conclude that the criteria laid down in Biggers are to be applied in determining the admissibility of evidence offered by the prosecution concerning a post-Stovall identification, and that those criteria are satisfactorily met and complied with here.

The judgment of the Court of Appeals is reversed.

It is so ordered.

The references are to the transcript of the trial in the Superior Court of Hartford County, Conn. The United States District Court, on federal habeas, pursuant to agreement of the parties, Tr. of Oral. Arg. 23, conducted no evidentiary hearing.

It appears that the door on which Glover knocked may not have been that of the Cicero apartment. Petitioner concedes, in any event, that the transaction effected “was with some other person than had been intended.” Id., at 4.

This was Glover’s testimony. Brown later was called as a witness for the prosecution. He testified on direct examination that, due to his then use of heroin, he had no clear recollection of the details of the incident. Tr. 81-82. On cross-examination, as in an interview with defense counsel the preceding day, he said that it was a woman who opened the door, received the money, and thereafter produced the narcotics. Id., at 84, 86--87. On redirect, he acknowledged that he was using heroin daily at the time, that he had had some that day, and that there was “an inability to recall and remember events.” Id., at 88-89.

Respondent testified: “Lots of times I have been there before in that building.” He also testified that Mrs. Ramsey was a friend of his wife, that her apartment was the only one in the building he ever visited, and that he and his family, consisting of his wife and five children, did not live there but at 453 Albany Avenue, Hartford. Id,., at 111-113.

These statutes have since been amended in ways that do not affect' the present litigation. See 1971 Conn. Pub. Acts 812, § 1; 1972 Conn. Pub. Acts 278, §§25 and 26; Conn. Pub. Acts 73-137, § 10; Conn. Pub. Acts 74-332, §§ 1 and 3; Conn. Pub. Acts 75-567, § 65.

Neither party submitted a request to the District Court for an independent factual hearing on respondent’s claims. See n. 1, supra.

Although no objection was made in the state trial to the admission of the identification testimony and the photograph, the issue of their propriety as evidence was raised on the appeal to the Supreme Court of Connecticut. Petitioner has asserted no claims related to the failure of the respondent either to exhaust state remedies or to make contemporaneous objections. The District Court and the Court of Appeals, each for a somewhat different reason, App. to Pet. for Cert. 7a-8a; 527 F. 2d, at 366, concluded that the merits were properly before them. We are not inclined now to rule otherwise.

Simmons involved photographs, mostly group ones, shown to bank-teller victims who made in-court identifications. The Court discussed the “chance of misidentification,” 390 U. S., at 383; declined to prohibit the procedure “either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement,” id,., at 384; and held that each case must be considered on its facts and that a conviction would be set aside only if the identification procedure “was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Ibid. The out-of-court identification was not offered. Mr. Justice Black would have denied Simmons’ due process claim as frivolous. Id., at 395-396.

Foster concerned repeated confrontations between a suspect and the manager of an office that had been robbed. At a second lineup, but not at the first and not at a personal one-to-one confrontation, the manager identified the suspect. At trial he testified as to this and made an in-court identification. The Court reaffirmed the Stovall standard and then con- *106 eluded that the repeated confrontations were so suggestive as to violate due process. The case was remanded for the state courts to consider the question of harmless error.

In Coleman a plurality of the Court was of the view that the trial court did not err when it found that the victim’s in-court identifications did not stem from a lineup procedure so impermissibly suggestive as to give rise to a substantial likelihood of misidentification. 399 U. S., at 5-6.

Mr. Justice Marshall argues in dissent that our cases have “established two different due process tests for two very different situations.” Post, at 122. Pretrial identifications are to be covered by Stovall, which is said to require exclusion of evidence concerning unnecessarily suggestive pretrial identifications without regard to reliability. In-court identifications, on the other hand, are to be governed by Simmons and admissibility turns on reliability. The Court’s cases are sorted into one category or the other. Biggers, which clearly adopts the reliability of the identification as the guiding factor in the admissibility of both pretrial and in-court identifications, is condemned for mixing the two lines and for adopting a uniform rule.

Although it must be acknowledged that our cases are not uniform in their emphasis, they hardly suggest the formal structure the dissent *107 would impose on them. If our cases truly established two different rules, one might expect at some point at least passing reference to the fact. There is none. And if Biggers departed so grievously from the past cases, it is surprising that there was not at least some mention of the point in Mr. Justice BrenNAN’s dissent. In fact, the cases are not so readily sorted as the dissent suggests. Although Foster involved both in-court and out-of-court identifications, the Court seemed to apply only a single standard for both. And although Coleman involved only an in-court identification, the plurality cited Stovall for the guiding rule that the claim was to be assessed on the “totality of the surrounding circumstances.’’ 399 U. S., at 4. Thus, Biggers is not properly seen as a departure from the past cases, but as a synthesis of them.

Although the per se approach demands the exclusion of testimony concerning unnecessarily suggestive identifications, it does permit the admission of testimony concerning a subsequent identification, including an in-court identification, if the subsequent identification is determined to be reliable. 527 F. 2d, at 367. The totality approach, in contrast, is simpler: if the challenged identification is reliable, then testimony as to it and any identification in its wake is admissible.

The Fourth Circuit’s then very recent decision in Smith v. Coiner, 473 F. 2d 877 (1973), was described as one applying the second, or totality, test. 486 F. 2d, at 55.

The interest in obtaining convictions of the guilty also urges the police to adopt procedures that show the resulting identification to be accurate. Suggestive procedures often will vitiate the weight of the evidence at trial and the jury may tend to discount such evidence. Cf. McGowan, Constitutional Interpretation and Criminal Identification, 12 Wm. & Mary L. Rev. 235, 241 (1970).

Unlike a warrantless search, a suggestive preindictment identification procedure does not in itself intrude upon a constitutionally protected interest. Thus, considerations urging the'exclusion of evidence deriving from a constitutional violation do not bear on the instant problem. See United States ex rel. Kirby v. Sturges, 510 F. 2d 397, 406 (CA7 1975).

“In 'essence what the Stovdl due process right protects is an evidentiary interest. . . .

“It is part of our adversary system that we accept at trial much evidence that has strong elements of untrustworthiness — an obvious example *114 being the testimony of witnesses with a bias. While identification testimony is significant evidence, such testimony is still only evidence, and, unlike the presence of counsel, is not a factor that goes to the very heart— the 'integrity’ — of the adversary process.

"Counsel can both cross-examine the identification witnesses and argue in summation as to factors causing doubts as to the accuracy of the identification- — -including reference to both any suggestibility in the identification procedure and any countervailing testimony such as alibi.” Clemons v. United, States, 133 U. S. App. D. C. 27, 48, 408 F. 2d 1230, 1251 (1968) (concurring opinion) (footnote omitted), cert. denied, 394 U. S. 964 (1969).

Mrs. Ramsey was not a witness at the trial.

We are not troubled, as was the Court of Appeals, by the “long and unexplained delay” in respondent’s arrest. 527 F. 2d, at 372. That arrest took place on July 27. The toxicological report verifying the substance sold as heroin had issued only 11 days earlier, on. July 16. Those 11 days after verification of the contents of the glassine bags do not constitute, for us, a “long” period. And with the positive toxicological report having been received within a fortnight, the arrest’s delay perhaps is not “unexplained.”