Manson v. Brathwaite – Oral Argument – November 29, 1976

Media for Manson v. Brathwaite

Audio Transcription for Opinion Announcement – June 16, 1977 in Manson v. Brathwaite

del

Warren E. Burger:

We will hear arguments next in 75-871, Manson against Brathwaite.

Mr. Gaffney, I think, you may proceed when you are ready.

Bernard D. Gaffney:

Mr. Chief Justice and may I please the Court.

My name is Bernard Gaffney and I am an assistant in the office of the State’s Attorney in Hartford, Connecticut.

I might say that in addition to representing the petitioner in this appeal, I represented the State in the trial of the case in the Superior Court in Hartford and I have also represented the State in the various judicial proceedings which have followed in both the State and the Federal Courts.

This case arose from an undercover narcotics investigation in Hartford factually on the evening of May 5, 1970.

An undercover State Police Officer, Jimmy Glover and an informant went to the third floor of an apartment building on Westland Street in Hartford for the expressed purpose of purchasing narcotics.

Now there are some questions as to whether Glover and the informant went to the specific apartment unit on the third floor that they had intended to go to and there is no question that when they got there, the transaction was with some other person than had been intended.

However, there is no question that Officer Glover in exchange for $20 purchased two glassine envelopes containing heroin.

In court, Glover made a positive identification of the respondent, known Brathwaite, as the seller of the narcotic.

Now if may I just go on, the sale took place at the doorway to the apartment and the testimony was that the total transaction, that is from its very start to its conclusion, took some where between five and seven minutes, and during this total period, the door to the apartment remained open for a period of about three minutes and the seller was standing in the doorway.

And Glover said that during this 3-minute period, he stood within 2 feet of his seller and was looking directly at his face, and he went on to say that he had absolutely no trouble in seeing in the hallway.

Thurgood Marshall:

It was the time?

Bernard D. Gaffney:

The transaction Your Honor took place at approximately or began at approximately 7:45 PM.

Potter Stewart:

On what date?

Bernard D. Gaffney:

May 5, 1970.

Now Judge Friendly, in his opinion, the Second Circuit Court opinion, pointed out that sunset on that day had occurred 7:53 PM.

Now outside the building at the conclusion of the transaction, Glover gave a description of his seller to Officer Michael D’Onofrio of the Hartford Police Department.

D’Onofrio was stationed outside the building as a Covering Officer.

Now D’Onofrio knew Brathwaite by sight.

He had seen him on a number of occasions prior to the date of the sale and he recognized the description, which Glover gave as applying to Brathwaite.

Now that night or the following date, D’Onofrio obtained a photograph of Brathwaite from the files of the Hartford Police Department and he took that photograph over to State Police Headquarters and he left it on Glover’s desk.

And I might point out parenthetically that the office of the State Police Headquarters in Hartford and the City of Hartford Police Headquarters are in two different buildings, geographically separated from one another by some distance.

Now a day or two later, specifically on May 7th, Glover returned to his office and he found the photo which D’Onofrio had left on his desk and he positively identified the person shown in the photograph as the same person from whom he had purchased the narcotics.

And I think it’s worth mentioning that at the time he did that, that at the time Glover viewed the photo, D’Onofrio was not present, and as a matter of fact, there is no evidence that there was any contact between D’Onofrio and Glover, between the date of the sale and the date of the photographic viewing, and no evidence, whatsoever, of any verbal influence or pressure brought by D’Onofrio upon Glover to make an identification.

Thurgood Marshall:

Except a picture.

Bernard D. Gaffney:

Yes, Your Honor, except the picture.

Now after it was confirmed by analysis that the substance sold was, in fact, heroin, police arrested Brathwaite.

It’s more than a little significance, I would submit, that Brathwaite’s arrest occurred at the very same apartment from which the sale had taken place.

That was not Brathwaite’s home, he lived at another address on Albany Avenue in Hartford and the Westland Street address was occupied by a Mrs. Ramsey.

Bernard D. Gaffney:

Now Brathwaite said on cross-examination that he had visited that apartment on Westland Street many times prior to the date of the offense and that Mrs. Ramsey who occupied that apartment was a friend of the family.

Now during the trial, through Officer Glover, the State offered testimonial evidence of the photographic identification and the photo itself, and Officer Glover made a positive in-court identification of Brathwaite.

Now the principal issue before this Court, as I understand it, is whether the case of Stovall and Denno, which this Court decided in June 1967, established a strict exclusionary rules, such that the admission of evidence of a pretrial identification, an unnecessary and suggestive pretrial identification, renders a criminal accuse, conviction and violation of due process standards.

That is what the Federal Appeals Court said in reversing the decision of the United States District Court that Stovall did establish such a rule and that the rule was violated by the State.

Now the petitioner has conceded that the procedure which the police used was suggestive and that it did consist of one photo show up, and we’ve also considered that the procedure used by the police was unnecessary, because there really was no emergency that existed and no exigent circumstances that would have prohibited the police from restoring to some more reliable technique.

We dispute the fact, however, that the suggestiveness was in anyway pronounced or aggravated or even remotely like that, which existed in the Foster case, Foster and California, which was decided after Stovall, I believe, in 1969.

And I emphasize in making that point that it detective D’Onofrio knew Brathwaite by sight, that he had seen him on a number of prior occasions, and that he recognized the description which Glover gave him.

And I also stress that D’Onofrio was not present when Glover made his identification from the photograph and exerted no verbal influence upon him.

What we are saying is that although the pretrial photo identification procedure was unnecessarily suggestive, there was no great likelihood of any misidentification under all of the facts.

Now with respect to the issue before Your Honors, the existence or nonexistence of a strict rule of exclusion, nowhere in the language of Mr. Justice Brennan’s opinion in the Stovall case, and I am referring to Part 2 of that opinion, nowhere did the words ‘exclusionary rule’ or ‘strict exclusionary rule’ appear.

What the Court said on Page 302 of that opinion is that, “A claimed violation of due process of law or the conduct of a confrontation depends on the totality of the circumstances which surrounded.”

And the same overriding principle was restated about a year after Stovall, in the Simmons case recorded in 390 U.S. and in that case, Mr. Justice Harlan said, “We hold that each case must be considered on its own facts”, and he went on later in the opinion to say that convictions will be set aside, only if the procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

Now in April of 1969, the Foster case to which I have alluded, Foster against California, adopted the same language residing that identification procedure should be judged “in the totality of the circumstances”, and Your Honors I am sure will recall that in that case there were repeated procedures used by the police which the Court said violated due process, and that conviction, I believe, was reversed.

Potter Stewart:

Which case; which case?

Bernard D. Gaffney:

Foster against California, Your Honor.

Potter Stewart:

Opinion written by Justice Fortas?

Bernard D. Gaffney:

Yeah, I don’t think it was Justice Fortas; I think Justice Fortas may have written the opinion in Coleman against Alabama.

Potter Stewart:

No, Justice Brennan wrote that.

Bernard D. Gaffney:

Alright, I stand —

Potter Stewart:

Or in any matter we are actually looking (Inaudible) recall a case that —

Bernard D. Gaffney:

Coleman and Alabama, I know, was decided after Foster in 1970.

Again, similar language, ‘totality of the surrounding circumstances’ has been the key to evaluating or assessing the prejudicial effect of a pretrial line up in that case.

Now more recently, of course, in the case of Neil and Biggers, decided in December of 1972, this Court said in rather specific language that it’s the reliability of the evidence under all of the circumstances, which is the central question.

So that its overall reliability, which is paramount, as I read the case, even though the identification procedure may have been suggestive.

That is the precision which the petitioner takes in this appeal that the admission of the show up without more, and the language used by Justice Powell, does not violate due process and that each case should be decided on its own facts.

Now I submit to Your Honors that if the Biggers criteria, those annunciated by Mr. Justice Powell in that case, are applied to the instant case that Glover’s identification is wholly reliable.

And the reasons for that contention, I have tried to set forth beginning on Page 12 of the petitioner’s brief, the opportunity to view the suspect.

Glover was at very close quarters, at the doorway to the apartment.

He was looking directly at his subject and the door was open during that period for up to three minutes.

The degree of attention — here you have a trained Police Officer.

William H. Rehnquist:

Is Glover a full-time Police Officer?

Bernard D. Gaffney:

Yes, he was, Your Honor, with the State Police, acting at that time with an undercover narcotics unit.

John Paul Stevens:

Mr. Gaffney, is the testimony about what was said during the confrontation consistent with it being two or three minutes in duration, wasn’t it quite a brief conversation?

Bernard D. Gaffney:

The conversation, Your Honor, was brief; there is no question about that.

The door opened, it was then, while the door was open, that a conversation occurred, the door closed.

John Paul Stevens:

But now you say that — wouldn’t have been two or three minutes in that conversation, would there?

Bernard D. Gaffney:

There would not done been two or three minutes of conversation but the testimony, as I read it, was that the door — and this would relate particularly to the time after which it was first open that during that period up to two to three minutes was consumed.

Now I assume that during that period, Brathwaite wanted to be sure that he could deal with the parties that were attempting to buy from him.

John Paul Stevens:

I thought — maybe I — maybe my memory fails me.

I thought that the door was closed after the first conversation.

Then after a few more minutes, it opened again and there was another conversation.

Bernard D. Gaffney:

Well, the conversation, when the door opened the second time, was quite brief.

By that time, Brathwaite, the seller, had obtained the narcotics and it was more a matter of getting them into the hands of the buyer.

John Paul Stevens:

Let me put my question a little more precisely.

The two or three minute observation; is it your view that the conversation took two or three minutes or that there was a very brief conversation?

They stood for another two minutes looking at one other silently.

Bernard D. Gaffney:

Well, I think more like the latter, Your Honor, because for the reason, as I have tried to indicate that the seller wanted to be sure that he could deal with the parties in front of him, that he wasn’t being set up.

And the conversation would not necessarily have had any bearing on that, but I think that the two or three minutes took place initially and that the period of time, after the door opened the second time, was much briefer.

Insofar as the degree of attention, as I have indicated, Officer Glover was a trained officer, trained Police Officer, and, of course, he was on a potentially dangerous assignment.

I think you can feel sure, at least I felt sure, that he was careful in viewing his subject.

The accuracy of the description, certainly as Brathwaite appeared in Court, he complied with the description.

Given the level of certainty, Officer Glover was unequivocal in his identification in-court and the length of time between the crime, the date of the crime, and the confrontation was relatively brief, a-day-and-a-half, perhaps two days at the very most.

Thurgood Marshall:

Why did he wait two days to pick up this horrible criminal?

Bernard D. Gaffney:

Well, it wasn’t that he waited two days to pick him up.

It was two days, at most, when Glover got back to his office to find the photograph on his desk.

Thurgood Marshall:

But what was the delay?

Bernard D. Gaffney:

Well, I don’t know that, Mr. Justice Marshall, that there was any delay.

I think that he —

Thurgood Marshall:

Well, he went there for the purpose of finding somebody to arrest, didn’t he?

Bernard D. Gaffney:

Not to arrest, to purchase narcotics from, Your Honor.

Bernard D. Gaffney:

There was no intent —

Thurgood Marshall:

Then why did he purchase narcotics?

Bernard D. Gaffney:

Well, the arrest would follow after the analysis to determine what, in fact —

Thurgood Marshall:

And how long or more than 10 minutes, does that take?

Bernard D. Gaffney:

Well, the analysis is made by the State Laboratory in Hartford, unfortunately.

Thurgood Marshall:

It’s the same town; same town?

Bernard D. Gaffney:

Yes, Your Honor.

Thurgood Marshall:

And you and I know Hartford is not the largest city in the world.

Bernard D. Gaffney:

No, I understand that.[Laughter Attempt]

Thurgood Marshall:

So I am trying to find why he had two days before he picked this horrible criminal up?

In the meantime, he is violating the law.

William H. Rehnquist:

I suppose, if there had been a contemporary objection at trial, the State might have had an opportunity or might have been motivated to flush the thing out a little more.

Bernard D. Gaffney:

Yes, I think that’s accurate to say, Your Honor.

Warren E. Burger:

I suppose this was not the only narcotics case in Hartford in that period of time?

Bernard D. Gaffney:

Oh no, by no means, Your Honor, by no means.

Thurgood Marshall:

What independent answer do you have to my question without help?

Bernard D. Gaffney:

Well, [Laughter] the delay, insofar as the confrontation occurred and Glover’s not getting back to his office until May 7, that is May 5 to May 7; as far as the arrest is concerned that would not, under the procedures used in Hartford, that would not have occurred until after it was confirmed by analysis, toxicological analysis, that the substance purchased was, in fact, narcotic.

Now that did not happen, Mr. Justice Marshall, until some time in July, and I concede that that is a rather extended delay and all that I can tell you is that it relates to the backlog, the work-log of the State Laboratory in Hartford.

After it was confirmed, as I recall it, Brathwaite’s arrest took place, not too long thereafter.

Now the rationale, of course, or the reasoning for the strict exclusionary rule as Justice Powell wrote, is to deter the police from using a less reliable procedure when a more reliable one would be available to them, to the police.

The Court said that the rule would not be premised on the assumption that the admission of the evidence of such a confrontation offends due process.

Now if that’s the case, it would seem to me that in the first instance the question is whether such a strict rule is going to have any real deterrent effect on the police.

Now Justice Blackmun discussed that issue in a recent case decided this past July, U.S. against Janis.

I think that was a Fourth Amendment case, but based on the Court’s discussion in the Janis case, it would seem that there is more than a little doubt that, in fact, such a rule, an exclusionary rule, has a deterrent effect, at least some doubt among the analysts or the statisticians or those who have perhaps looked into it.

But assuming that it does, assuming that it will have a deterrent effect, I suggest to Your Honors that what is important is that there is no compelling need today for such a strict rule.

Now my experience, I can see it is limited to Connecticut and more specifically, Hartford in the areas that surround Hartford, but I have been exposed over the years to a great, great many cases and I submit to Your Honors that the abuses today are minimum, whether the police are learning or what the reason is, I am really not prepared to say, but I can say this that in my experience photo show-ups and highly suggestive procedures are the exception today and not the rule; that in the great majority of cases where photo show-ups, for example, are used, they are used by the police because of circumstances which maybe peculiar to the case or to confirm the identity of a person who is already known.

Thurgood Marshall:

And he had been identified by a person trained in identifying people and giving accurate descriptions.

Bernard D. Gaffney:

That certainly does help, Your Honor, yes.

Thurgood Marshall:

You don’t want to loose that point.

Bernard D. Gaffney:

No, I don’t, no.

Bernard D. Gaffney:

That’s important.

If the basic purpose of a trial is the determination of the truth, and Mr Justice Stewart said that in the Teahn and Shott case decided in 382 U.S. at 416 and I suppose that’s really axiomatic, but I certainly subscribe to it.

If you accept that, I submit that the prosecution then should not be prohibited in all cases from introducing this type of evidence, because the effect of the rule will then be to keep out what in most cases is really relevant evidence and in many cases, certainly prohibitive evidence and perhaps valid evidence as well.

Now Mr. Justice Blackmun said Jurists and Scholars uniformly have recognized that the exclusionary rule imposes a substantial cost and suicidal interest in law enforcement by its proscription of what concededly is relevant evidence, that in the Janis case to which I just referred and I guess that’s really the point I am trying to make.

Something will be lost in many of the trials if such a rule is adopted.

And as an aside and as a practical matter from one who is a prosecutor in cases, such as this one where you have a one witness identification, Glover being the sole identifying witness, the evidence is going to come in to the case anyway.

The defense in its cross-examination of the state’s chief identifying witness, undoubtedly, in most cases at least is going to offer the evidence for the purpose of undermining the chief identification witness for the state.

Now I submit that if that occurs, the state, in many cases, is going to be placed in a bad light.

Jury simply are not going to understand that the State, because of the inadmissibility of the evidence, wasn’t permitted to offer it in the first instance and having failed to present it, I submit again, the State just is not going to look good.

Juries want to hear all of the evidence.

It’s been my experience that they don’t like objections.

Potter Stewart:

I am not sure I understand the argument you are now making Mr. Gaffney.

I want to be — did you say on cross-examination —

Bernard D. Gaffney:

I don’t know that it’s a cogent argument, Your Honor, for deciding whether there should be a rule or not, I offer it more in the practical sense, but if in a case, such as this one where you have a one witness identification, and the state presents that witness and he makes an in-court identification without any reference to the pretrial procedure, the defense, in the great majority of cases, is going to cross-examine that witness and develop that there was a pretrial procedure to point out how defective it was, how suggestive it was.

So that the evidence is in the case, anyway, and the jury sitting and hearing that evidence come in for the first time —

Potter Stewart:

— will wonder why it wasn’t presented by the prosecutor —

Bernard D. Gaffney:

— will wonder why didn’t the state — why are we hearing it now from the defendant.

Potter Stewart:

— for the first time.

Bernard D. Gaffney:

And I submit that that doesn’t make the state look very good.

Potter Stewart:

I see your point.

Bernard D. Gaffney:

Now if there is no such rule and the evidence, at least in some cases, is offered by the prosecution, I submit that certainly the trial judge, in an appropriate instruction, can advise the jury of the weaknesses and the dangers and the deficiencies of such suggestive pretrial procedures by the police.

In summary, it’s the position of the petitioner that Stovall and the cases that have been decided since Stovall did not establish a strict exclusionary rule that due process standards do not require and that there is no compelling need for the adoption of such a rule today, particularly if the objective is the deterrent effect on the police.

And that the key question is really one of reliability, reliability of the identification of evidence under all of the circumstances and whether or not withstanding some suggestive pretrial procedure, whether there is really any great substantial likelihood of the reparable misidentification.

In short, that the cases should be decided on a case-by-case basis.

Now — and what I have referred to in the Petitioners’ brief as a contingency opinion, Judge Friendly said that even if there was no exclusionary rule, even if it was wrong in that conclusion, the respondent should be given a new trial, and for other reasons — and I concede that he had a right, the Appeals Court had a right, to examine the record and interpret the legal significance of all of the facts in the context of due process, but when the Court decided that Officer Glover was not a reliable witness, not a credible witness, because he was a Police Officer whose job was to make arrest; that an ordinary citizen or a bi-standard would be more credible witness; that Glover’s positive in-court identification of Braithwaite wasn’t worthy of belief because Braithwaite was the only person sitting at the counsel table and that he must have made dozens of other arrests between the time of the offense and the time of the trial.

I submit that in that connection the Appeals Court was injecting its own viewpoints, its own personal convictions and those were peculiarly, I would think, within the provenance of the jury.

Justice Frankfurter in Malinski case, 324 U.S. at page 417, expressed it well far better than I have, when he said the judicial judgment in applying the Due Process Clause was moved within the limits of accepted notions of justice, and it is not to be based upon the idiosyncrasies of merely personal judgment.

An important safeguard against such merely individual judgment is an alert deference to the judgment of the State Court under review.

And If I may, Your Honor, I would like to reserve whatever time maybe left to me for rebuttal argument.

Thank you.

Warren E. Burger:

Very Well.

Mr. Golub.

David S. Golub:

Mr. Chief Justice and members of the Court.

The paramount in undisputed issue, the fact in this case is that the identification testimony that served as the sole basis for respondent Braithwaite’s conviction was derived from what has been conceded by the State and what has been found by every court that’s reviewed this case is been impermissibly suggested procedure that was totally unnecessary under the facts of this case and those circumstances.

Byron R. White:

You are not suggesting that that alone would exclude an in-court identification.

David S. Golub:

No, we are not, Your Honor.

We recognized that there is an independent basis test that would still be applicable to the in-court identification.

Byron R. White:

You are saying that testimony about the out-of-court identification should have been excluded because, simply because it was impermissibly suggested?

David S. Golub:

Well, we do say that — we are also saying, and I think Judge Friendly held the in-court identification also should have been excluded.

His opinion applies to both the out-of-court and the in-court.

Warren E. Burger:

But you see he treated — he regarded it as a tainted, that the second was tainted by the first.

David S. Golub:

That’s correct, Your Honor.

There is, in addition, an additional fact for the second in-court identification that wouldn’t be applicable to the out-of-court show-up.

Byron R. White:

Yes, but you don’t say that the in-court identification is automatically excluded.

David S. Golub:

No, we don’t.

Byron R. White:

— along with the out-of-court identification.

David S. Golub:

No, we don’t say that Mr. Justice.

We take the facts, Your Honors, as Judge Friendly found them in the Court of Appeals.

That was a very brief encounter.

It took place in a dimly lit hallway at sunset, there were no electric lights in the hallway or in the apartment, the door to the apartment was open only 12 to 18 inches, and this is all Glover’s testimony, the agent’s testimony.

There were two people in the doorway; the door was closed most of the time, while the heroin was being prepared in the apartment.

The officers admitted they made at least one mistake in the case.

They went to the wrong apartment; they were trying to buy drugs from a different person.

William H. Rehnquist:

Mr Golub wouldn’t a good deal of the speculation that you are now indulging in, be permitted if there had been a contemporaneous objection and this could have been argued out in the Trial Court at the Glover cross-examined as to how he really knew this was the same man?

David S. Golub:

Your Honor, it is true that there was no contemporaneous objection at the time of trial.

I think it’s significant that in proceeding in the District Court, the State felt that the trial transcript was sufficient to establish the evidentiary basis for the in-court and out-of-court identification.

William H. Rehnquist:

And you did too.

David S. Golub:

We did too, as the memorandum of opinion from Judge Blumenfeld indicates.

He asked us whether either side wanted an evidentiary hearing and both sides agreed that it wasn’t necessary.

I might also point out, Your Honors, that Judge Blumenfeld invited briefs on the subject of the contemporaneous objection, absence of the contemporaneous objection.

David S. Golub:

The State chose not to file a brief, the State chose not to raise the issue in its pleadings.

William H. Rehnquist:

Wasn’t Judge Blumenfeld talking about, whether there was raised it up all on habeas in the absence of a contemporaneous objection rather than question of the degree of speculation you could go into about people’s motives and that sort of thing, if you haven’t raised it at trial?

David S. Golub:

Yes, he was asking for in-court briefs, I think, one whether or not fair to object precluded habeas corpus relief.

I think, it’s important to know that I don’t think it does preclude habeas corpus relief, I don’t think the State has raised it.

I don’t think it’s conceivable that it could have been a deliberate bypass for tactical reasons even under the recent standards that have come forth in the courts cases last term.

There is certainly as actual prejudice to the defendants in the case shown here under Francis versus Henderson.

And furthermore, I think that under the principle of Warden versus Hayden, we might have argued in the District Court, had the State raised it that there was — this was plain error and that’s the basis apparently on which this Connecticut Supreme Court reviewed it.

So for all those reasons in response to the subject of the absence of contemporaneous objection.

Thurgood Marshall:

Do you mean that in case in which police authorities show a picture to a complaint witness, automatically no trial?

David S. Golub:

No, that’s not what we were saying, Your Honor.

Thurgood Marshall:

Then what are you saying?

David S. Golub:

We are saying that there are two issues in this case and two standards that could be applied in this case: One would be the totality test which Judge Friendly applied in the alternative; the other would be the strict rule of exclusion of the evidence that Judge Friendly also felt was applicable.

We feel, and we feel that under the case law and under the Constitution, a strict rule of exclusion of evidence derive from an unnecessarily suggestive identification procedure is one that applies to the out-of-court identification.

We feel in this case, even more so, that whether or not that test is applied, even if the totality test is applied, that Judge Friendly was certainly correct in applying the test as he did in this case and coming out with the conclusion that a substantial likelihood of misidentification resulted —

Thurgood Marshall:

But you don’t want the automatic one.

David S. Golub:

Well, we do want it, Your Honor, but we don’t think it’s necessary for the Court to reach it to affirm the opinion below.

Thurgood Marshall:

What is the total you have here?

David S. Golub:

I am sorry, I couldn’t hear you.

Thurgood Marshall:

What is the total evidence that you have here that takes you out of that automatic room?

David S. Golub:

Well, we feel on the totality test, Mr. Justice Marshall, we feel that in view of the brief nature of the encounter, and we agree with the question that was posed by Mr. Justice Stevens about the length of time that was involved.

The conversion, we think, was the total amount of time.

The door was closed —

Thurgood Marshall:

Then how much time would it take?

David S. Golub:

Well, we read it as being no more than a minute.

We read it as being very momentary.

There was a — on page 30 of the transcript, Glover —

Thurgood Marshall:

I said, how much time will it take for me to look at you before I can identify you?

David S. Golub:

Well, I don’t think — I think, Your Honor, it would depend on each individual person.

It might be that —

Thurgood Marshall:

Well, how much if I were a well-trained police official; how long would it take?

David S. Golub:

I don’t know, Your Honor, and I don’t think Judges can tell you that.

Thurgood Marshall:

Well, would two-three minutes be enough?

David S. Golub:

It might be under, for some people but —

Thurgood Marshall:

Well, it was two or three in this one?

David S. Golub:

The both courts below found that it was no more than one or two, three minutes.

Thurgood Marshall:

Oh, one minute short.

David S. Golub:

I might point out that with respect to the argument about the trained police officer, we have an individual who went to the wrong apartment, we have an individual who was observing the seller without the benefit of electric lights at the time of sunset, we have an individual whose identification was disputed by the other witness present, we have an individual who was subjected to a very suggestive photographic confrontation, but moreover, was subject to the suggestiveness of his superior officer saying, “I know who it is.

I know it’s Brathwaite.”

We have an individual who — no matter how certain he may have been felt necessary to look at the picture again before the day of trial when he was to make an in-court identification.

So we have to concede, and I think that it is — that he is a police officer, but I don’t think there is any reason to exempt a police officer from the scrutiny that we would give to other witnesses.

John Paul Stevens:

Mr. Golub, is the fact that the defendant was arrested in the apartment relevant to the question of whether the identification was reliable?

David S. Golub:

Well, none as I read the facts, Your Honor.

What we had in this case was D’Onofrio saying, “I recognized the description that you have given me, it’s Brathwaite.”

And he apparently recognized it because he had seen Brathwaite in the area and there is no question that Brathwaite visited that apartment.

He was a heavyset black male, Your Honor.

We contend that what D’Onofrio recognized was a heavyset black male.

It could have been any number of heavyset black males in the apartment and the fact that it was three months after the incident, when Brathwaite was arrested; the fact that it was even two weeks or three weeks after the lab report came back, and I might point out that there was a lay-up analysis done on the street at the day of the alleged sale.

John Paul Stevens:

Let me make my question a little more precise.

David S. Golub:

I am sorry.

John Paul Stevens:

Is evidence, which one might assume to be relevant to the issue of guilt, like we can assume Brathwaite, he was arrested in the apartment, he went there many times is relevant on guilt, can we consider that in determining whether the identification is reliable or are they two entirely separate things?

David S. Golub:

Well, I think they are two separate questions.

I know that there have been courts that have, appellate reviewing courts have looked to other indicia of guilt or innocence in their appellate review.

I think that I would disagree with those courts that didn’t and I would say that that is an independent issue.

In addition, Your Honors, I would say there is a threshold question here of whether or not this Court is going to sit as a reviewing court for factual decisions made by Courts of Appeals when the standard of review is not in question.

Warren E. Burger:

Isn’t that what the Court of Appeals in Second Circuit has done?

David S. Golub:

Well, it is; they did do that, Your Honor, but I think that there is a different standard for review in this Court.

In Neil versus Biggers, this Court did indicate that it would review the facts.

It did review the facts but in that —

Warren E. Burger:

What does the Court mean when it says, as Justice Harlan said in this context that we must review these on a case-by-case basis?

Does that mean that our scope of examination of the record is less than that of the Court of Appeal?

David S. Golub:

No, Your Honor, I don’t think it is, but I think that this Court certainly does not want to be faced with reviewing every identification case that comes from the Court of Appeals on the factual basis.

Warren E. Burger:

You are quite right but perhaps, it has — the court has a different attitude when a Court of Appeals, the first reviewing court undertakes to review credibility without overseeing the witnesses.

David S. Golub:

You mean the Court of Appeals or the —

Warren E. Burger:

The Court of Appeals undertook to review the credibility, I am sure, did they not?

David S. Golub:

Well, I don’t think they did undertook —

Warren E. Burger:

What did Judge Friendly have to say about the credibility?

David S. Golub:

I think, what he indicated in the opinion, Your Honor, was that Glover’s incentive, either to make an identification, either consciously or sub-consciously, could not be ruled out.

I mean, he had expended Government and State funds, he had initiated an investigation, he had made a mistake in going to the wrong apartment, and now when his superior officer came and said, “is this the man?”

I think Judge Friendly felt he had an incentive to make an identification.

I think that Judge Friendly’s — I don’t think he was questioning a credibility of the witnesses so much is pointing out that there was a possible —

William J. Brennan, Jr.:

Just to go, we don’t have in current findings here too.

David S. Golub:

Well, I think the findings by the District Court and the Court of Appeals —

William J. Brennan, Jr.:

Do you think it’s case for the two court rule?

David S. Golub:

I think, there is no — there no factual findings were reversed by the Court of Appeals.

I think it was simply a question of applying the law to the facts as this Court did in Neil versus Biggers, but I think —

William J. Brennan, Jr.:

Well, over a dissent, that was a case for the two court rule.

David S. Golub:

Yes.

Well, I think so, but I think the difference from the Court’s point of view, from Neil versus Biggers in this case is that in Neil versus Biggers there was the further argument over dissent that there was a — the role of law was incorrectly applied in the Court of Appeals.

In this case, on the totality test, there is no question but that the rule of law was accurately applied.

As a rule of law, there is a question of — that the State has raised as to whether or not it was — the final determination was correct but —

Thurgood Marshall:

We follow which court, District Court or the Court of Appeals?

David S. Golub:

I think both courts applied the totality test.

They reached different conclusions and we feel that’s partly —

Thurgood Marshall:

Well, which courts should we follow under facts?

David S. Golub:

I think the facts are the same in both courts, Your Honor.

Thurgood Marshall:

Well, which court should we follow?

David S. Golub:

I would say, follow the Court of Appeals.

Thurgood Marshall:

Are you sure? [laughter]

John Paul Stevens:

Well, don’t you think the Court of Appeals is differ to the District Court on the credibility of the witness or not?

David S. Golub:

No, I think the only difference is that the District Court said — that the Court of Appeals said that there might be an incentive to — there might be a reason or there might be incentive for him to make an identification.

Byron R. White:

Well, so they question the credibility, the believability of the witness?

David S. Golub:

Well, they just — I think, they countered the fact that —

Byron R. White:

Well, is the answer yes or no?

They did, didn’t they discounted his credibility?

David S. Golub:

I suppose the answer is yes.

I am reluctant to give that answer not because I am avoiding the question but —

William J. Brennan, Jr.:

Well, Mr. Golub, certainly Judge Friendly at least inferred a bias in Glover, didn’t he?

David S. Golub:

He inferred a potential bias and I think —

William J. Brennan, Jr.:

I know, but that Judge Blumenfeld did not.

David S. Golub:

Judge Blumenfeld did not do that and I think that’s one —

Byron R. White:

Well, then we never solved that the witness did object — the trial judge did not?

Was there a hearing?

David S. Golub:

There was no hearing in the Trial Court.

Byron R. White:

So that it’s all of the — both the District Court and the Court of Appeals were operating on a court record?

David S. Golub:

On the same transcript, yes, Your Honor.

Warren E. Burger:

But the District Court followed the more traditional rule that on a court record you don’t re-examine credibility. Did he not?

David S. Golub:

The District, yes — he did not look to Glover’s motives.

Warren E. Burger:

Was there any cross-examination of the officer opening up and gauntleting these facts that Judge Friendly seem to rely on.

David S. Golub:

There was no cross-examination of Glover that went to this issue.

In fact, the cross-examination of Glover was very limited in —

Warren E. Burger:

Glover then found not a credible witness, by default, in effect, does he?

David S. Golub:

Well, I think the only thing that Judge Friendly found was that he couldn’t be presumed to be accurate, simply because he was a trained police officer.

I don’t think he is —

Warren E. Burger:

Well, he presumed the contrary. Did he not?

David S. Golub:

I don’t — I think, he noted the contrary.

The contrary might be true and might be possible.

Warren E. Burger:

Well, he either accepted the Policeman’s testimony or not, and which did he do?

He rejected it, did he not?

David S. Golub:

He found that the testimony — there was a substantial likelihood of misidentification from the procedures employed and I might point out that —

Warren E. Burger:

Well, that rejects totally and completely, does it not, the in-court identification of the accused?

David S. Golub:

Well, I don’t think it’s necessary to say, it’s a total rejection.

I think it indicates that he felt that there was too higher risk of misidentification under the procedures employed.

It might be that it’s a — and we, in fact, intended that one of the problems with the totality test is that it’s a very fine line in many instances.

I don’t know how long it would take Mr. Justice Marshall to identify me.

I don’t know what it means that he — that a Police Officer on the street has made a mistake and wants to correct it.

And when we try to inquire into all these uncertain areas of psychology, when judges try to inquire into that, the result is one that is susceptible of many different resolutions.

Lewis F. Powell, Jr.:

Mr. Golub, did you suggest earlier that you and your colleague stipulated that no hearing was necessary before Judge Blumenfeld?

David S. Golub:

We agreed to go on the trial transcript.

Lewis F. Powell, Jr.:

Rest upon the State transcript.

David S. Golub:

Yes.

Thurgood Marshall:

And you have the whole the transcript here?

David S. Golub:

It is, it’s part of the record.

It was not —

Thurgood Marshall:

It’s part of the record here?

David S. Golub:

It was not — it’s in the appendix.

William H. Rehnquist:

And the burden is on you in a habeas proceeding, isn’t it?

David S. Golub:

Well, I think the burden is on us to show that there was unnecessary suggestiveness, and I think once we have met that burden, which we did, that the burden then shifts to the State to show that there was no substantial likelihood of misidentification.

William H. Rehnquist:

Well, what case do you rely on for that proposition?

David S. Golub:

Well, I don’t think it is explicitly stated in a case, Your Honor, but I think that that’s the rationale of the identification law cases.

It’s not in Neil versus Biggers.

We think that — and I think it’s not in Neil versus Biggers because that was an opinion where the test was framed to deal with pre-Stovall identifications but it certainly is in Simmons and it certainly is in the other, the right to counsel identification law cases.

The burden is put on the State or the government to show that there was no substantial likelihood of misidentification.

I would like to turn to the strict rule of exclusion that Judge Friendly and the unanimous panel of the Second Circuit held was applicable to this case.

I disagree, I suppose personally with the comments of my brother, the need for deterrence.

I think Judge Friendly in the panel and other judges, all the commentators, and then many of them cited in the brief also disagree that — they feel there is a need for deterrence.

There is a need for deterrent rule.

The facts of this case indicate the need for the deterrent rule.

Simmons in 1968 made it clear that the use of one photograph was impermissible, lower courts stridently condemned the use of one photograph and in this case we have a procedure where not only was it used but one of the officers, D’Onofrio, said that it was not even an unusual practice.

We think that the rule —

Lewis F. Powell, Jr.:

Well, as to the unusual practice, is an unusual practice for Police Officer to look at the mugshots?

David S. Golub:

Well, on the basis of my experience —

Lewis F. Powell, Jr.:

Is it or isn’t that rather normal for a Police Officer?

David S. Golub:

This is a limited branch of the Connecticut State Police Department.

It’s the regional crime squads who are engaged in doing this kind of undercover buying of drugs.

It is my understanding of —

Lewis F. Powell, Jr.:

And is it normal for them to look at mugshots?

David S. Golub:

It’s my understanding of their normal practice, that they make the purchase and then go back and look at only one mugshot.

For no reason, other than, that’s the standard procedure.

Lewis F. Powell, Jr.:

Well, how could he normally find one mugshot?

David S. Golub:

Well, they have a list — they have a book of pictures in the one of the —

Lewis F. Powell, Jr.:

A book full pictures, that’s not one mugshot.

David S. Golub:

They pulled a picture out of the book, Your Honor, and they will then bring it over as Mr. D’Onofrio —

Lewis F. Powell, Jr.:

But with police officers, they are different from ordinary people; they are trained.

David S. Golub:

Well, they are trained but they are still subject to the same significance —

Lewis F. Powell, Jr.:

Well, suppose a police officer comes out and says, “The man, I saw, was 5 foot 8, 180 pounds, a Negro, with blond hair, blue eyes, and a scar across his face, and you show him a picture of that, what’s wrong with that?

David S. Golub:

Well, there are many people who might look like that, Your Honor. [Laughter]

Lewis F. Powell, Jr.:

Well, that’s the best you can do?

David S. Golub:

[Laughter] Yes, Your Honor.

What I seriously feel is wrong with that is there is no reason why that can’t be done by means of a photographic spread.

There is no reason to ensure the accuracy of the identification, even if it’s by a police officer, that it can’t be done in six or ten photographs.

The use of one photograph is ensuring that the identification will be made of the picked person in the photograph and this is a very good case of it because Glover had no prior contact with Brathwaite, Glover didn’t know who it was, D’Onofrio said it’s Brathwaite, D’Onofrio showed Glover the picture or left the picture for Glover to see.

Lewis F. Powell, Jr.:

How can you drop the picture until after you have got a full description of him, good enough to be able to pick out the picture?

David S. Golub:

It’s a description, Your Honor, of a heavyset black man with high cheek bones.

There is no showing, there is nothing of age, there is nothing of facial characteristics in this testimony —

Lewis F. Powell, Jr.:

Can we find one with a cheek bone?

David S. Golub:

There is nothing about–

Lewis F. Powell, Jr.:

You are causing so many doubts about the cheek bone.

John Paul Stevens:

Mr. Golub, does the record tell us whether Officer D’Onofrio knew that the defendant frequented this apartment before he received this description?

David S. Golub:

The record — the transcript seems to indicate that D’Onofrio had seen Brathwaite in the area and that’s as far as it goes.

John Paul Stevens:

In the area?

David S. Golub:

Yeah.

John Paul Stevens:

But not necessarily in this particular apartment?

David S. Golub:

No, there is no evidence — there is no testimony one way or the other as to that.

With respect to the adoption —

John Paul Stevens:

Well, let me just go on step further.

David S. Golub:

Yes.

John Paul Stevens:

Then is it a fair inference that D’Onofrio picked out this picture on the basis of the description given to him by Glover?

David S. Golub:

I think that is a fair inference.

He recognized from the description, a heavyset black male that he had seen in the area and secured a picture of that and might point out the picture as a mugshot and doesn’t have anything from the neck down and so it’s not a full photo of the individual that the description had been given of.

With respect to whether or not a strict rule of exclusion is wanted in this case, we have argued in the brief that there is a constitutional basis for the rule, and I think we are also aware that several members of this Court have indicated that there is some doubt in their minds about whether a constitutional basis either in the Fifth Amendment right to a fair trial exists.

We feel, we don’t retreat from the position we took in the brief, as to the fact that the identification law cases Gilbert and Stovall, indicate that there is a right to — that the right to a fair trial would apply and warrant a deterrent exclusionary rule.

But we feel, in addition, that the recent decisions of this Court, dealing with the development of the standards under which a deterrent rule is warranted.

I am talking about decisions such as Michigan versus Tucker, Calandra, Brown versus Illinois, and cases such as those indicate that there are certain guidelines that this Court feels are applicable when creation of deterrent rule is considered.

And in Michigan versus Tucker, the Court indicated that even when there is no constitutional basis for the rule, that a deterrent rule can be warranted for prophylactic rules designed to ensure constitutional rights.

Of course, in Michigan versus Tucker, it was the Miranda rule that was — the fruits of the Miranda rule that were an issue, but the point in Michigan versus Tucker and the point in all of these cases, is the Court has been formulating standards by which a deterrent rule can be warranted, and we feel that under the standards announced in those cases, that the strict rule of exclusion suggested and adopted by the Second Circuit is fully amended.

And I would like very quickly to go over some of the principles that we feel these prior cases have indicated.

There is a concern in the prior cases with whether or not the conduct that’s being deterred can in fact be deterred.

One of the criticisms with the Fourth Amendment rule is that it applies to searches and seizures which are made in good faith.

By contrast, in this particular instance, we are dealing with the rule that applies only to unnecessary photographic procedures.

Procedures that are willful or negligent, it falls within the language of —

Warren E. Burger:

We will resume there at 1 o’clock counsel.

Mr. Golub, you may continue.

David S. Golub:

MThank you, Mr. Chief Justice and members of the Court.

As I was saying before the lunch recess, I think that if we look to the cases of this Court in recent terms, dealing with development of exclusionary rules for deterrent purposes, they provide guidelines which can be applied to this case and which mandate creation of the rule that the Second Circuit adopted.

As I mentioned before, this rule, the strict rule of exclusion of unnecessarily suggestive identification evidence deals only with evidence that can and should be deterred; because the procedure was unnecessary, it is either willful and negligent, it falls within the definitions of all the cases that deal with the development of these rules, as conduct that is, of which the officers have knowledge is improper or are properly chargeable with knowledge.

Second of all, I think it’s clear that this is a rule that will have impact, it’s a rule that will aim directly at the conduct of the officers.

They will understand under what circumstances their conduct was permissible, under what circumstances their conduct was not permissible.

It avoids the second step of the analysis which gets into the particular individual, who made the identification, the witness involved, the officer may not offend and under present law, understand that it’s that — it’s the witness’s length of observation or the witness’s memory that makes an identification survive.

Under the strict rule of exclusion, impact on the officers will be clear.

If they use a suggestive means, they will understand that that means, is why the — is result of that procedure that the evidence was excluded.

David S. Golub:

Thirdly, it’s also clear that there really is no other remedy right now for the victim of this kind of procedure.

If there is no constitutional basis for the procedure, if there is no constitutional violation that occurs when a photographic show-up is employed, certainly there is no remedy under any kind of civil rights action or any kind of tort theory.

This Court has held only recently that the prosecutors are immune from suit, for something like this I would think, it would clearly fall under the recent decision.

Warren E. Burger:

Well, how would prosecutors considerably be having the responsibility for the identification process?

David S. Golub:

Well —

Warren E. Burger:

Or do you mean that he might be (Inaudible) for using or attempting to employ —

David S. Golub:

Well, I think very often —

Warren E. Burger:

— an identification?

David S. Golub:

Excuse me.

I think very often the prosecutor himself engages in an identification procedure.

In this case, for example, on the day of the trial, the prosecutor did show the photograph to agent Glover again.

So a prosecutor may himself become involved in it.

Warren E. Burger:

Do you think there is something wrong with a lawyer showing potential witness, some of the evidence they are going to be dealing with before a trial?

David S. Golub:

Well, I do, Your Honor.

Warren E. Burger:

And that’s essentially like interviewing the witness.

David S. Golub:

I think, Your Honor, there was no reason why a spread couldn’t have been used on the day of trial as well.

Especially, since it’s eight months later and the individual is going to attempt the courtroom identification.

I think, that there was a responsibility to show him to not to prejudice that courtroom identification by showing one photographic again.

Thurgood Marshall:

But on the retrial it was ordered, you can’t use either identification?

David S. Golub:

Well, I think under the totality test that Judge Friendly —

Thurgood Marshall:

Well, I thought Judge Friendly said, you can use either of this — either of identification.

David S. Golub:

That’s correct.

Thurgood Marshall:

How would you convict it?

David S. Golub:

Well, I might say that I doubt if there would be a retrial, I don’t that you could be trying —

Thurgood Marshall:

What do you mean, you think he just be turned lose.

David S. Golub:

Yes, I do, Your Honor.

Thurgood Marshall:

And you don’t really think that — you are not urging that deterrence may lose, are you?

David S. Golub:

Well, I certainly am.

Thurgood Marshall:

Yes or no, or you are, (Voice Overlap).

David S. Golub:

I certainly am.

David S. Golub:

I don’t think — I think that there is substantial question of his guilt in this case.

Thurgood Marshall:

The only point you have is that they showed him this picture and on the basis on them showing him this picture, he goes free.

He can never be convicted under any circumstance.

David S. Golub:

Well, in this particular case, on these facts the evidence is not admissible, Your Honor.

Thurgood Marshall:

And so he is free.

David S. Golub:

He would — there would be no other — since there is no other evidence, he would have to go free.

That is correct.

The other thing that I think comes through from the Court’s opinions on deterrent rules is that a cross-benefit analysis is properly applied and we set forth the cross-benefit analysis in the brief.

Harry A. Blackmun:

I am not sure about your answer to Mr. Justice Marshall.

I thought you said a while ago that adopting a per se rule wouldn’t necessarily take taint in-court identification.

David S. Golub:

That’s correct; I meant to answer with respect to the totality test, Your Honor.

With respect to the totality test, Judge Friendly found that both the in-court and out-of-court were impermissibly suggestive, giving rise to misidentification.

Under the per se rule, there would still be a finding possible on the in-court identification.

Harry A. Blackmun:

Let’s assume that the per se rule is not adopted for the out-of-court identification but that the totality was a substantial likelihood of misidentification.

David S. Golub:

Yes, Your Honor.

Harry A. Blackmun:

And let’s assume that in a particular case, applying that rule, it was found that the pretrial identification was so suggestive that it should not be admissible because of the substantial likelihood of misidentification.

Would that automatically preclude any in-court identification?

David S. Golub:

It would not automatically preclude it.

Practically speaking, however, since the tests are so similar, it’s unlikely that —

Harry A. Blackmun:

I know but there is a — but why wouldn’t there still be a question open at the trial whether that was an independent basis for the identification?

David S. Golub:

I certainly believe that there would be out —

Harry A. Blackmun:

Well, if that is true — Judge Friendly did not go through that routine.

He just found on the latter and other part of his opinion that, on the totality if the out-of-court identification was bad, the in-court automatically was, didn’t he?

David S. Golub:

I don’t think he is clear in his opinion as to why he is suppressing the in-court identification.

Harry A. Blackmun:

Well, at least he never inquired whether there was any independent basis for the in-court.

David S. Golub:

He raised it in the court in our brief and he did not specifically articulate, why he was suppressing the in-court.

As I read the opinion he said, —

Harry A. Blackmun:

But in any event, you don’t — whatever the rule is adopted for the out-of-court identification, you did not claim did that automatically disposes of the in-court identification.

David S. Golub:

Oh no, we do not claim that, we certainly not.

Harry A. Blackmun:

Well, then was your answer to Mr. Justice Marshall correct or not?

David S. Golub:

Well, I think it’s correct on these facts, Your Honor, because —

Harry A. Blackmun:

Well, on these facts.

David S. Golub:

On these facts only, it’s correct, and that’s all I meant to say with respect to these facts.

Thurgood Marshall:

Reading from page 27A, “Assuming which we do not believe that Simmons states a proper test for both of Glover’s identifications, we hold that both were inadmissible”

David S. Golub:

I think that’s — and I think, he is holding that neither one could be used in the pretrial.

Thurgood Marshall:

But that is too essential from the bottom-line.

David S. Golub:

Yes, I think he is holding that neither one could be used to trial on these facts.

I think he is not holding that on another facts an in-court identification would not be admissible.

William J. Brennan, Jr.:

You mean that on a retrial that would — however, if over an in-court identification by Glover, then the State would have to go forward also and show there was an independent basis, not related to the show-up.

David S. Golub:

On a retrial, the State would, yes.

William J. Brennan, Jr.:

But the State will have to show, in addition to Glover’s in-court identification of Brathwaite that that identification was rested upon a basis independent of the show-up, would it?

David S. Golub:

Yes, I believe that that would —

Byron R. White:

Do you think the State may retry it?

David S. Golub:

I think, there is no change at all.

He is —

Byron R. White:

It sounds to me like Judge Friendly on the Second Circuit held that this particular Policeman’s testimony would not be received.

David S. Golub:

That’s how I read the opinion also, Your Honor.

Byron R. White:

Yes.

David S. Golub:

Thank you.

Warren E. Burger:

Do you have any further counsel?

Bernard D. Gaffney:

Just very briefly, Your Honor, if I may, with respect to some of Mr. Mr. Golub’s comments, I don’t know whether he meant to imply or actually said that Detective D’Onofrio was Glover’s superior officer.

If so, that is not accurate.

They worked, and I thought, I have indicated that in my opening argument, for entirely separate law enforcement agencies.

And when Mr. Golub mentioned that D’Onofrio said after Glover had given him the description, “I know who it is, it’s Brathwaite”, perhaps Mr. Golub meant to imply that that’s what was going through D’Onofrio’s mind, and it may well have, but he did not make any such statement to Glover.

In fact, he made no statement of any kind to Glover.

Mr. Justice Marshall asked about the use of a mugshot, particularly, one mugshot by the police, and it is true that this does occur particularly in narcotics cases as Your Honors probably realized the undercover officers actually go out into the drug culture try to get to know these people in garb, which is totally unpolice like, and eventually, when they do recognize and get to know the dealers, they are dealing with a person who is known to him, to the buying officer, so that when the mugshot is used thereafter; most frequently, it’s used to simply to confirm the identity of a person that’s known to the officer that bought the narcotics and that’s a little bit of the —

Byron R. White:

But isn’t that — wouldn’t it be — wouldn’t the admissibility of the out-of-court identification be critical in a lot of cases?

Bernard D. Gaffney:

Yes, it would, Your Honor, yes.

Byron R. White:

In the sense that without the pretrial identification, and without it’s being admissible, the officer might have a real problem in identifying in court?

Bernard D. Gaffney:

Well, I suppose that would be true, if there was a lapse of time, particularly.

Byron R. White:

Well, and not only that but having dealt with — having seen an awful lot of people?

Bernard D. Gaffney:

That’s right, that’s correct because there are great many persons that these undercover officers deal with over a period of time.

John Paul Stevens:

Mr. Gaffney, if we apply the totality of circumstances test, am I correct in assuming that that would mean both the in-court and the out-of-court identifications would always stand and fall together?

Bernard D. Gaffney:

Well, no, I would think that if the pretrial procedure was found to be defective and yet there could be an independent basis shown for the in-court identification apart from the pretrial procedure that the State could hopefully proceed on that basis.

John Paul Stevens:

But isn’t the inquiry as to whether it’s reliable or not, and if it is reliable, or you pass it for the out-of-courts or in-courts?

Bernard D. Gaffney:

Well, yes, I guess it’s so Your Honor, reliability is the key.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.