Chapter 52: Lineups and Shows

[1] CAL: P v.
Stearns (1973) 35 CA3 304, 306; P v.
Vanbuskirk (1976) 61 CA3 395.

[2] QUOTE FROM: P v.
DeSantis (1992) 2 C4 1198, 1222; P v.
Perkins (1986) 184 CA3 583, 589.

[3] CAL: P v.
Avila (2009) 46 C4 680, 700 ["Defendant does bear the
burden of demonstrating the identification procedure was unduly
suggestive."]; P v. Cunningham (2001) 25 CA4 926,
989 ["The defendant bears the burden of demonstrating the
existence of an unreliable identification procedure."].

[4] CAL: P v.
Ratliff (1986) 41 C3 675, 689; P v.
Cooks (1983) 141 CA3 224, 306; P v.
Cooks (1983) 141 CA3 224, 306; P v.
Rodriguez (1977) 68 CA3 874, 881.

[5] CAL: Pen. Code§ 859.7(a).

[6] CAL: Pen. Code§ 859.7(a)(11).

[7] CAL: P v.
Lawrence (1971) 4 C3 273, 278 ["As long as the photographs
from which the witness made his identification are preserved the
available at trial, counsel for the accused, by using them in
cross-examination or prosecution witnesses, can easily reveal the
possibility of prejudice"]; P v. Dontanville
(1970) 10 CA3 783, 791 ["the chief difference between a
photographic line-up and [a live lineup] is the ability to
reproduce much of what transpired by the production of the photos
themselves"]; P v. Adair (1969) 2 CA3 92, 96 ["The
photographs, with any shortcomings in their quality, lighting,
exposure and the like, are available to examine. The manner in
which they were exhibited to the witnesses readily can be explored
on cross-examination"].

[8] CAL: P v.
Spencer (1972) 22 CA3 786, 795 ["Identification of a
criminal by means of a display of photographs serves not only the
purpose of implicating the guilty, but also of sparing innocent
suspects the ignominy of arrest by allowing eyewitnesses to
exonerate them through scrutiny of photographs."].

[9] CAL: P v. Lawrence (1971) 4
C3 273, 277 [although it might have been "better" to conduct a
live lineup, "the failure to take such action is not the crucial
factor"]; P v. Brandon (1995) 32 CA4 1033, 1052, fn. 16
["there is no constitutional requirement that a live lineup be
conducted"]; P v. Rhinehart (1973) 9 C3 139,
152-53; P v. Whittaker (1974) 41 CA3 303, 309 [no
requirement that "once [the defendant] was in custody, officers
were limited to use of a corporeal lineup, and that the showing of
photographs to witnesses was no longer permitted."]; P v.
Suttle (1979) 90 CA3 573, 581 ["There is no requirement,
constitutional or otherwise, that the most reliable
technique be used. Here, since the photo identification was not
suggestive, we will not go farther by holding that a corporeal
lineup should have been used since appellant was in custody"];

[10] CAL: P v.
Ellis (1966) 65 C2 529, 534 ["The speech patterns of
individuals are distinctive physical characteristics that serve to
identify them just as do other physical characteristics"].

[11] QUOTE FROM:
US v. Orozco (4C 2022) 41 F4 403, 406, fn.2.

[12] CAL: P v.
Bisogni (1971) 4 C3 582, 587 ["It is settled that a single
person showup is not necessarily unfair and must be assessed in
the light of the totality of the circumstances."]; P
v. Odom (1980) 108 CA3 100, 110 ["The potential
unfairness in such suggestiveness is offset by the likelihood that
a prompt identification within a short time after the commission
of the crime will be more accurate than a belated identification
days or weeks later."]; P v. Sandoval (1977)
70 CA3 73, 85 ["A single person showup is not necessarily unfair.
Such a procedure should not be used, however, without a compelling
reason because of the great danger of suggestion from a one-to-one
viewing which requires only the assent of the witness."];
P v. Phan (1993) 14 CA4 1453, 1461, fn.5 ["not
inherently unfair."]; P v. Johnson (1989) 210 CA3
316, 323 ["not necessarily unfair and must be assessed in the
light of the totality of the circumstances"]; P v.
Jardine (1981) 116 CA3 907, 915 ["This was a conventional
field identification which courts recognize as not unduly
suggestive or otherwise unfair."] P v. Gomez (1976)
63 CA3 328, 336 ["A single person showup is not inherently
unfair."]. BUT ALSO SEE: P v. Nash (1982) 129
CA3 513, 518 ["no case has held that a single-person showup in the
absence of compelling circumstances is per se unconstitutional"].

[13] USSC: Stovall v.
Denno (1967) 388 US 293, 302 ["the showing of Stovall to
Mrs. Behrendt in an immediate hospital confrontation was
imperative"]. CAL: P v. Cowger (1988)
202 CA3 1066, 1072 ["A prompt on-the-scene confrontation between a
suspect and a witness enables the police to exclude from
consideration innocent persons so a search for the real
perpetrator can continue while it is reasonably likely he is still
in the immediate area. Such knowledge is of overriding importance
not only to the police and the public"]; P v.
Martinez (1989) 207 CA3 1204, 1219 ["Prompt identification
of a suspect who has been apprehended close to the time and place
of the offense to exonerate the innocent and aid in discovering
the guilty is a valid purpose for conducting a one-person
showup"]; P v. Rodriguez (1987) 196 CA3 1041, 1049
["One of its principal functions is a prompt determination of
whether the correct person has been apprehended."];
In re Richard W. (1979) 91 CA3 960, 970 ["the law favors
field identification measures when in close proximity in time and
place to the scene of the crime"]; P v.
Jardine (1981) 116 CA3 907, 915 ["The special benefit of
such a procedure is that the prompt viewing is more likely to
produce an accurate response than a later confrontation."];
In re Carlos M. (1990) 220 CA3 372, 387 ["the element of
suggestiveness inherent in the procedure is offset by the
reliability of an identification made while the events are fresh
in the witness's mind and because the interests of both the
accused and law enforcement are best served by an immediate
determination as to whether the correct person has been
apprehended."]; P v. Kilpatrick (1980) 105 CA3 401,
412 [showups "aid in quickly exonerating the innocent and reliably
discovering the guilty"].

[14] QUOTE FROM: P v.
Odom (1980) 108 CA3 100, 110.

[15] USSC: Simmons v. US (1968)
390 US 377, 383 [the danger of misidentification "will be
increased if the police display to the witness only the picture of
a single individual"]; Manson v. Brathwaite (1977) 432 US
98, 116 ["Although identifications arising from single-photograph
displays may be viewed in general with suspicion, we find in the
instant case little pressure on the witness to acquiesce in the
suggestion that such a display entails."]. CAL:
P v. Sanchez (2019) 7 C5 14, 36 [close call as to whether
it was necessary to show the witness photo, but ID admissible
because of strong indicia of reliability];
P v. Contreras (1993) 17 CA4 813, 820 ["Numerous cases have
condemned the use of a single photo identification procedure."
Citations omitted.]; P v. Bisogni (1971) 4 C3 582, 586-87
[witnesses "were asked to look through a hole in a door or wall
[at the police station] where they observed [the suspect] alone in
a room"; "highly suggestive… moreover, there was no
emergency present requiring a single person showup"];
P v. Sandoval (1977) 70 CA3 73, 84-85 ["the victim who was
sitting in a room at the police station was told by the police
that the suspect would be brought through the hallway"; "there was
no emergency present requiring a single person showup"];
P v. Nation (1980) 26 C3 169, 180 ["The danger of error in
identification is at its greatest when the police display only the
picture of a single individual"]; P v. Chavez (2018) 22 CA5
663, 676 ["suggestive" but not "unduly suggestive"];
In re Cindy E. (1978) 83 CA3 393, 402 [single person showup
is "a suggestive procedure" but, in this case, the ID was
reliable]; P v. Greene (1973) 34 C3 622, 640-45 [single
photo showup was reasonably necessary]. 9th CIR:
US v. Bruce (9C 2021) 984 F3 884, 892 [although the witness
was shown a Facebook photo of the suspect, the identification was
sufficiently reliable because the witness had had two meetings
with the perpetrator in which they had been in "close proximity,"
and one of the meetings took place in the perpetrator's car];
US v. Fowler (9C 1971) 439 F2 133, 134 [unduly suggestive
for officer to show a used car salesman two photos of the suspect
and ask if he was the person who purchased a car used in a drug
smuggling]; US v. Beck (9C 2005) 418 F3 1008, 1013
[although the agent showed the witness a bank surveillance photo
before showing her the photo lineup, the court said "our precedent
also establishes that the rights of the accused are not
jeopardized when, as here, the recollection of an eyewitness is
refreshed by the use of photographs of the crime itself"].
OTHER: US v. Edwards (7C 2022) 34 F4 570, 581 ["An
impermissibly suggestive [single] photo identification may
nonetheless survive a suppression motion where the totality of the
circumstances demonstrates the reliability of the
identification."]; US v. Bruce (9C 2021) 984 F3 884, 891
[witness and suspect were accomplices]; US v. Henderson (1C
2003) 320 F3 92, 100 [showing a witness a single booking photo of
the defendant," the officer asked, "Who is this?"; suggestive but
ID admissible because of its overriding reliability];
US v. Lawson (DCC 2005) 410 F3 735, 740 ["the employee was
shown surveillance photographs—an arguably suggestive medium—and
the photographs only depict the two individuals who had robbed the
bank"]; US v. Sanders (8C 1980) 626 F2 1388, 1389 [arguably
suggestive to show the witness surveillance photos of the bank
robbery "immediately before viewing the lineup"].

[16] USSC:
Manson v. Brathwaite (1977) 432 US 98, 116 ["we find in the
instant case little pressure on the witness to acquiesce in the
suggestion that such a display entails"]. CAL:
P v. Kennedy (2005) 36 C4 595, 611 [not suggestive to show
photo after the witness, who "had a good opportunity to view the
perpetrator" and had "asked to see a photograph in which
defendant's eyes showed"]; P v. Ingle (1986) 178 CA3 505,
513 ["unlike the recollections and description of a human witness,
the recorded memory of the video surveillance camera has little
serious potential to mislead. Indeed, its opposite potential to
correct and enhance the reliability of an eyewitness
identification in cases like the present would appear greater than
its potential to cause an incorrect result"];
P v. Alexander (2010) 49 C4 846, 903 ["Here, the
prosecutors showed [the officer] the [photographs] the night
before trial to learn what he would say about them before asking
him in front of the jury. This was not an unduly suggestive and
unnecessary procedure under the facts of this case"].

[17] CAL: Pen. Code§ 859.7(a)(2).

[18] CAL: P v.
Brandon (1995) 32 CA4 1033, 1052 ["The circumstances
surrounding the photographs being shown to Gonzales (loose, in a
stack and shown one at a time) reflect she was not influenced by
any so-called 'filler' photographs."]. OTHER:
US v. Ford (7C 2012 683 F3 761, 765 ["The array would have
been less suggestive had the manager been shown the photos one by
one (a 'sequential' array)."]; US v.
Williams (7C 2008) 522 F3 809, 811 [suggestiveness may be
reduced if "the officer conducting [the lineup is] ignorant of the
suspect's identity"].

[19] USSC: Manson v.
Brathwaite (1977) 432 US 98, 116 ["And since Glover
examined the photograph alone, there was no coercive pressure to
make an identification arising from the presence of another."].
CAL: P v. Wash (1993) 6 C4 215, 244 ["There
is no evidence that [the second witness] participated in the
Identikit procedure with [the first witness] on the composite."];
P v. Sequeira (1981) 126 CA3 1, 16 [one
circumstance that rendered a lineup "eminently fair" was that the
witnesses "were separated, told not to talk with each other, and
to designate their identifications by writing the suspect's number
on a card provided them"]; P v.
Rodriguez (1987) 196 CA3 1041, 1050 [the witnesses were
"then separately interviewed by the police as to their responses
to the viewing"]; P v. Thomas (1970) 5 CA3 889, 900
["we do not approve of the practices of ... having one witness
make an identification in the presence of another witness"];
P v. Dontanville (1970) 10 CA3 783, 793
["Each child was called in separately to view the photographs and
admonished not to discuss what transpired with the others."].
OTHER: US v. Williams (7C 2008) 522 F3
809, 812 [the witnesses "viewed the lineup separately and there
was no risk that one person's identification would influence the
others"]. COMPARE: US v. Wade (1967)
388 US 218, 234 [the witnesses "made wholesale identifications of
Gilbert as the robber in each other's presence"]; Gilbert
v. California (1967) 388 US 263, 270, fn. 2 [the
witnesses "did, however, in each other's presence, call out the
numbers of men they could identify"]; P v.
Nation (1980) 26 C3 169, 180 ["No effort was made to
separate the witnesses so as to assure independent appraisals."];
P v. Bisogni (1971) 4 C3 582, 586 ["Mrs.
Watson first looked into the room and then related to Mrs. Cahill
that the lady inside was the one who had been involved in the
robbery."]; US v. Nolan (2C 2020) 956 F3 71, 76 ["The
victim discussed with two other victims her identification of [the
suspect]."]. NOTE: The Seventh Circuit has ruled that it is
not an unduly suggestive pre-lineup procedure to have two
witnesses collaborate in providing details for a composite sketch.
Gregory-Bey v. Hanks (7C 2003) 332 F3 1036,
1048.

[20] USSC: Manson v.
Brathwaite (1977) 432 US 98, 116 ["And since Glover
examined the photograph alone, there was no coercive pressure to
make an identification arising from the presence of another."].
CAL: P v. Ingle (1986) 178 CA3 505, 513 ["It
has been recognized that permitting one eyewitness to a crime the
opportunity to observe another eyewitness make a photo lineup
identification before he himself is asked to make his own
identification is unnecessarily suggestive and fraught with the
potential for irreparable misidentification."]; P v.
Sequeira (1981) 126 CA3 1, 16 ["The witnesses were
separated, told not to talk with each other, and to designate
their identifications by writing the suspect's number on a card
provided them."]; P v. Wash (1993) 6 C4 215, 244
["There is no evidence that [the second witness] participated in
the Identikit procedure with [the first witness] on the
composite."]; P v. Dontanville (1970) 10 CA3
783, 793 ["Each child was called in separately to view the
photographs and admonished not to discuss what transpired with the
others."].

[21] CAL: P v.
Nation (1980) 26 C3 169, 180.

[22] USSC: Moore v.
Illinois (1977) 434 US 220, 224-25 ["Persons who conduct
the identification procedure may suggest, intentionally or
unintentionally, that they suspect the witness to identify the
accused. Such a suggestion, coming from a police officer or
prosecutor, can lead a witness to make a mistaken
identification."]; Simmons v. US (1968) 390
US 377, 383 ["The chance of misidentification is also heightened
if the police indicate to the witness that they have other
evidence that one of the persons pictured committed the crime."].

[23] CAL: Pen. Code§ 859.7(a)(1)
["Prior to conducting the identification procedure, and as close
in time to the incident as possible, the eyewitness shall provide
the description of the perpetrator of the offense."].

[24] USSC: Moore v.
Illinois (1977) 434 US 220, 230, fn.4 [as the defendant was
led into the lineup, a prosecutor identified him as the suspect
and told her that evidence pertaining to the crime had been found
in his apartment]. CAL: P v.
Perkins (1986) 184 CA3 583, 588 ["suggestive comments or
conduct that single out certain suspects or otherwise focus a
witness's attention on a certain person in a lineup can cause such
unfairness as to deprive a defendant of due process of law"];
P v. Arias (1996) 13 C4 92, 167 [DA's process
server told a witness that the suspect "had already been convicted
of murder and rape"]. 9th CIR: Torres v.
City of Los Angeles (9C 2008) 548 F3 1197, 1208 [it was
suggestive to tell the witness that officers had "possibly
identified the 15 to 16-year-old chubby boy" who had been in the
drive-by murder car, and there were only two "chubby boys" in the
lineup, one of which was the defendant]. COMPARE:
Simmons v. US (1968) 390 US 377, 385 ["There
is no evidence to indicate that the witnesses were told anything
about the progress of the investigation, or that the FBI agents in
any other way suggested which persons in the pictures were under
suspicion."].

[25] CAL: P v. Vanbuskirk (1976)
61 CA3 395, 400. ALSO SEE: P v. Garcia (2016) 244
CA4 1349, 1359 ["We've caught the guys."].

[26] USSC: Coleman v.
Alabama (1970) 399 US 1, 6 ["[The witness] testified that
when the police asked him to go to the city jail he 'took it for
granted' that the police had caught his assailants. But the record
is utterly devoid of evidence that anything the police said or did
prompted [the identification]."]. CAL: P v.
Carpenter (1997) 15 C4 312, 368 ["Anyone asked to view a
lineup would naturally assume the police had a suspect."];
P v. Contreras (1993) 17 CA4 813, 820
["Telling a witness suspects are in custody… is not
impermissible."]; P v. Ballard (1969) 1 CA3
602, 605 [not suggestive to inform witnesses that "the police had
two suspects who fit the description that she had given them"];
P v. Johnson (1992) 3 C4 1183, 1218;
P v. Dominick (1986) 182 CA3 1174, 1196 [not
suggestive to tell the witness "that one or more of the suspects
'might' be in the lineup"]; P v. Nguyen (1994) 23
CA4 32, 39 [not suggestive for an officer to tell the witness,
prior to a showup, "that he had been able to catch a few people
but that he needed a witness to identify them."].

[27] CAL: In re Carlos M. (1990)
220 CA3 372, 386 ["The record is devoid of any indication that
police told the victim anything to suggest the people she would be
viewing were in fact her attackers."]; P v.
Johnson (1989) 210 CA3 316, 323 ["officers did not indicate
that they had apprehended the suspect or that they would be
showing [the witness] the suspect"]; P v.
Dominick (1986) 182 CA3 1174, 1196 [not suggestive to tell
the witness "that one or more of the suspects 'might' be in the
lineup"]; P v. Ballard (1969) 1 CA3 602, 605 [not
suggestive to tell the witness that "the police had two suspects
who 'fit the description' that she had given them of the
perpetrators of the offenses."]; P v. Nguyen (1994)
23 CA4 32, 39 [not suggestive for an officer to tell the witness,
prior to a showup, "that he had been able to catch a few people
but that he needed a witness to identify them."]; P
v. Jardine (1981) 116 CA3 907, 915 [before a showup,
the officers told the witness, "We have a couple of guys down here
we want you to look at"]; P v. Meneley (1972) 29 CA3
41, 57 ["The advice that a suspect was in the lineup did not
suggest to the identifying witness anything more than he would
assume, and in no way suggested that defendant was the suspect
rather than one of the [fillers]."]; P v.
Contreras (1993) 17 CA4 813, 820 ["Telling a witness
suspects are in custody ... is not impermissible."].

[28] CAL: P v.
Vanbuskirk (1976) 61 CA3 402, fn.4 [even if officer had
told a witness that another witness had identified the defendant,
"there is no evidence that [the officer] suggested that it was
defendant's picture which had been selected by [the other
witness]"].

[29] CAL: P v. Garcia (2016) 244
CA4 1349 1362 ["each victim was admonished that they did not have
to identify anyone in the lineup and that they should not assume
that anyone whose picture was in the lineup was in custody"];
P v. Odom (1980) 108 CA3 100, 106 ["Each [witness] was told
not to talk to one another and to keep an open mind because this
might or might not be the person involved. The officer did not
refer to Odom as a suspect; an officer at the scene cautioned them
just because the man was in custody did not necessarily mean he
was involved in the shooting."]; P v. Cunningham (2001) 25
C4 926, 990 [the witness "was instructed that he was not to assume
the person who committed the crime was pictured therein, that it
was equally important to exonerate the innocent, and that he had
no obligation to identify anyone."]; P v. Pervoe (1984) 161
CA3 342, 357, fn.12 ["keep in mind that hair styles, facial hair,
and clothing may have changed. That the person or persons you are
being asked to identify may or may not be among the photographs.
That it is just as important to free innocent persons from
suspicion as it is to identify guilty parties."];
P v. Avila (2009) 46 C4 680, 698 ["Both Montoya and Padilla
were first admonished in writing that they were under no
obligation to identify anyone from the photographic lineup, and
the mere fact that the [DA's Office] is showing these photographs
in no way means that a photograph of the person(s) responsible for
the same is/or present."]; P v. Yeoman (2003) 31 C4 92, 124
["Before each lineup, Trimble admonished Ford that the suspect's
photograph might or might not be included and that she should not
feel obligated to choose one."]; P v. Arias (1996) 13 C4
92, 169 [the officer told the witness that "the suspect might be
in here, he might not"]; P v. Sequeira (1981) 126 CA3 1, 16
["The witnesses were separated, told not to talk with each other,
and to designate their identifications by writing the suspect's
number on a car provided them."]. OTHER:
US v. Williams (7C 2008) 522 F3 809, 811 ["the police acted
prudently in telling the witnesses that the lineup may have
contained no suspect at all"]; US v. Lawson (DCC 2005) 410
F3 735, 739 [the admonishment "included a warning that photographs
may not always depict the true complexion of a person and that
such complexion may be lighter or darker than shown in the
photo"].

[30] CAL: Pen. Code§ 859.7(a)(4).

[31] CAL: Pen. Code§
859.7(a)(10)(A). OTHER: US v.
Williams (7C 2008) 522 F3 809, 812 ["Obtaining immediate
estimates of confidence also reduced the chance of error. People
often profess greater confidence after the fact; their memories
realign to their earlier statements, so that trial testimony may
reflect more confidence than is warranted."].

[32] CAL: P v.
Perkins (1986) 184 CA3 583, 590 [such a question "was a
logical one for an investigator to ask after the chief witness had
apparently failed to identify a suspect. In order to continue the
investigation and make certain he was on the right track, [the
officer] needed to explore Maria's recollection and description of
the robber"].

[33] CAL: P v.
Perkins (1986) 184 CA3 583, 590 ["It is not impermissible
or unduly suggestive for a police officer to question witnesses
further if the officer believes the witnesses may actually
recognize someone in the lineup."]; P v.
Contreras (1993) 17 CA4 813, 819 ["questioning a witness
further if the officer believes the witness actually recognized
someone in the lineup is not impermissible"].

[34] CAL: P v.
Ochoa (1998) 19 C4 353, 413 ["Due process does not forbid
the state to provide useful further information in response to a
witness's request, for the state is not suggesting anything."];
P v. Perkins (1986) 184 CA3 583; P v.
Hernandez (1988) 204 CA3 639, 653-54.

[35] QUOTE FROM: P v.
Gordon (1990) 50 C3 1223, 1242. CAL: Pen. Code§
859.7(a)(10)(C); P v. Slutts (1968) 259 CA2
886, 893 [officer told witnesses that the person they identified
"had committed a prior similar offense and was in need of
psychiatric help"].

[36] CAL: Pen. Code§ 859.7(a)(5).

[37] QUOTE FROM: P v.
Wimberly (1992) 5 CA4 773, 790. CAL: P v.
Carpenter (1997) 15 C4 312, 367 ["Because human beings do
not look exactly alike, differences are inevitable."];
P v. Brandon (1995) 32 CA4 1033, 1052 ["there is no
requirement that a defendant in a lineup, either in person or by
photo, be surrounded by others nearly identical in appearance"].

[38] EXAMPLES: The following are
comments from courts in ruling that the defendant and the fillers
were sufficiently similar in appearance:

Live lineups

• "The five men were of substantially equivalent race,
height, and weight." P v. Mosher (1969) 1 C3 379,
396.

• "All six participants were bearded and wore identical
clothing… with one exception, the others resembled
defendant 'very much.'" P v. Carpenter (1997) 15 C4
312, 367.

• "Defendant does not appear to be significantly taller,
heavier, or older than the other participants." P v.
Blair (1979) 25 C3 640, 661.

• "The lineup was composed of six men each similarly dressed,
of the same general height and of approximately the same age. The
facial contour of four of the men was essentially similar and
three of them [like the perpetrator] had mustaches." P v.
Blum (1973) 35 CA3 515, 520.

• "The men in the lineup were dressed in street clothes
consisting of sport shirts and slacks of varying designs and
colors. All were black men of similar height and physical build."
P v. O'Roy (1972) 29 CA3 656, 662.

• Defendant and one of the fillers "had braids or dreadlocks
in their hair, while two others appear to have similar type of
hair."
P v. Johnson (2010) 183 CA4 253, 272.

• "All six men are wearing glasses; at least one of the other
men is dressed in a three-piece suit, and another is wearing a
suit jacket. All of the men have a mustache and some have other
facial hair. Several have a hairstyle similar to that of
defendant. Defendant was not the tallest, shortest, oldest, or
youngest of the participants." P v.
Cunningham (2001) 25 C4 926, 990.

• "All the participants had different types of facial hair,
some with mustaches, some with beards, goatees, etc." P v.
Adams (1982) 137 CA3 346, 353.

• "Each man wore a shirt or sweater dissimilar from each of
the others. The participants all appeared to be of comparable age
and of similar build. None had distinctive features." P v.
Lawrence (1971) 4 C3 273, 280.

Photo lineups

• "All of the men in the array were of a similar age; there
was no striking difference in the amount of head hair each had;
and the skin color of the members of the array was not strikingly
different." US v. Burnett (3C 2015) 773 F3 122, 133.

• "A review of the photospread shows that all six of the
pictures are of Caucasian males in the same age range, with
similar skin, eye, and hair coloring. Each photo depicts a subject
wearing distinctive glasses. Four of the six photos show men with
similar length hair, with two having somewhat shorter hair. All
except for one are clean-shaven." US v.
Beck (9C 2005) 418 F3 1008, 1012.

• "The suspects depicted in the photographs are all
Caucasian, of a reasonably similar build and within the same age
group."
P v. Holt (1972) 28 CA3 343, 350.

• "All of the men depicted in the photographs are White; all
have long hair in various shades from blond to brown; and all have
beards." P v. Wash (1993) 6 C4 215, 245, fn.11.

• "Each lineup consists of five identically sized photographs
of Caucasian males of apparently similar age and with similar
facial features. Four of the men ... appear to have similarly
colored light red hair. One man has grey hair ... The color
photographs show the subjects against identical blue backgrounds."
P v. Yeoman (2003) 31 C4 4 93, 124-25, fn.6.

• "All [of the five Caucasian women in the photo lineup] are
of medium build. The four at the left appear to be of the same
general age, that is, between 40 and 50, the tall woman at the
extreme right being somewhat younger. None bears a facial
resemblance to any of the others. None has extremely distinctive
features. The facial idiosyncrasies among the five women are no
more marked than those which normally distinguish one person from
another." P v. Malich (1971) 15 CA3 253, 260.

• "The photographs themselves are not suggestive; most in
fact depict persons not significantly dissimilar from appellant in
appearance." P v. Sequeira (1981) 126 CA3 1, 13.

• "All of the photographs were of Black males, generally of
the same age, complexion, and build, and generally resembling each
other ... Minor differences in facial hair among the participants
did not make the lineup suggestive." P v.
Johnson (1992) 3 C4 1183, 1217.

• "The array depicts six African-American individuals of
generally similar ages and facial features." US v.
Lawson (DCC 2005) 410 F3 735, 739.

• "The photographic display here shows six dark-haired Latin
males approximately the same age with mustaches." P
v. Bracamonte (1981) 119 CA3 644, 656.

Voice-only lineups: Officers should attempt to use a
"collection of voices which are similar in tone, pitch, volume and
accent"; e.g., "While none of the five imitators was especially
talented in impersonating the defendant's voice, the differences
between the voices was not so great as to be unfair or
impermissibly suggestive." P v. Vallez (1978) 80 CA3
46, 54-55.

[39] CAL: Pen. Code§ 859.7(a)(7).

[40] CAL: P v. Wilson (2021) 11
C5 259, 284 ["Standing out requires more than the defendant's
potentially being a different race than others picture or having a
photo background slightly different than other images in the
array."]; P v. Carpenter (1997) 15 C4 312,
367 ["The question is whether anything caused defendant to 'stand
out' from the others in a way that would suggest the witnesses
should select him."]; P v. Sequeira (1981) 126 CA3
1, 13 ["and certainly there was no marked disparity between
appellant and the others in the lineup so as to set appellant
apart or make him conspicuous"]; P v.
Faulkner (1972) 28 CA3 384, 391 ["the crucial issue is
whether appellant has been singled out and his identification made
a foregone conclusion"].

[41] EXAMPLES: The following are
examples of comments made by the courts in ruling that the
defendant did not stand out so as to mark him for identification:

• "All the men in defendant's six-pack were distinct in some
respect from one another, with varying hairstyles and clothing,
and each of the image backgrounds was somewhat different. But
nothing in the lineup suggested that the witness should select
defendant." P v. Wilson (2021) 11 C5 259, 285.

• "Although defendant's photo does display eyes that are
somewhat more 'bulging' than the men in the other photos, it would
be virtually impossible to find five others who had similar eyes
and who also sufficiently resembled defendant in other respects."'
P v. Lucas (2014) 60 C4 153, 237.

• Although defendant was the shortest person in the lineup,
he was not "significantly" shorter than the others. P v.
Cook (2007) 40 C4 1334, 1355.

• "Defendant was neither the oldest nor the youngest of the
participants, neither the tallest nor the shortest, neither the
heaviest nor the lightest" P v. Carpenter (1997) 15
C4 312, 367.

• "Aside from the fact that defendant may have been the
shortest member of the lineup there is no evidence that he
differed in appearance from the other members." P
v. Rist (1976) 16 C3 211, 218.

• "Although defendant was the tallest, all the others were
tall as well." P v. Gordon (1990) 50 C3 1223, 1243.
Also see P v. Davis (1969) 2 CA3 230, 237
[suspect was the tallest].

• "While it has been suggested that a lineup with a tall
defendant among short men could be unfair, the California cases
have held that the height disparity in a lineup is not per se
suggestive." P v. Mosher (1969) 1 C3 379, 396.

• "Although the other men may have been darker in complexion
and not as thin, the men in the lineup were sufficiently similar
in appearance" P v. Floyd (1970) 1 C3 694, 712.

• "Appellant notes that he was wearing a bright white
sweatshirt or sweater. However, so long as the defendant is not
alone dressed in a striking manner, there is no need for the
police to match outfits of everyone in the lineup anymore than the
police are required to match the physical proportions of the other
men with scientific exactitude." P v.
Wimberly (1992) 5 CA4 773, 790.

• "While defendant's profile is facing the opposite direction
from the other five pictures, the point of concern to the witness
is the person's features, not the direction he is facing."
P v. West (1984) 154 CA3 100, 105. Compare
P v. Carlos (2006) 138 CA4 907, 912 [photo
lineup was suggestive because the suspect's name and ID number
were printed below his photo, while none of the other photos
contained names or numbers].

• "While in the six-picture color photo lineup appellant was
darker complected than the other Negroes, this does not by itself
render the 4identification unduly suggestive." P v.
Guillebeau (1980) 107 CA3 531, 557.

• Although the photos of both defendants showed them holding
pieces of paper in front of them, some of the fillers were
photographed "against height markers." "In short, the photo arrays
carried mixed suggestions." US v.
Duran-Orozco (9C 1999) 192 F3 1277, 1282.

• "Nor is the validity of a photographic lineup considered
unconstitutional simply where one suspect's photograph is much
more distinguishable from the others in the lineup." P v.
Brandon (1995) 32 CA4 1033, 1052.

• "We cannot agree with defendant that placement of three
'new' photographs in the top row of the display and the three
'old' photographs—including the more recent photograph of
defendant himself—in the bottom row created two suggestive
'subsets' of photos." P v. Johnson (1992) 3 C4 1183,
1217.

• "Any discoloration in defendant's photograph would not
suggest it should be selected." P v.
Gonzalez (2006) 38 C4 932, 943. Also see P v.
Hicks (1971) 4 C3 757, 764 [court rejects argument that
photo lineup unreliable because his photo "had a gray background
while the others had a white background"].

• "The fact defendant's face has a 'yellow cast' is
unimpressive as photograph number six has a distinctly 'red cast,'
number four has an 'orange cast,' and others have differing color
characteristics." P v. West (1984) 154 CA3
100, 105.

• Although the defendant was the only person in the photo
lineup wearing a gold shirt and gold sweater, this clothing "was
not similar to that described to the police by [the witness]."
P v. Lawrence (1971) 4 C3 273, 280.

• "Each hair style is different and nothing about defendant's
hair draws one's attention." P v.
Bracamonte (1981) 119 CA3 644, 656.

• "But even if Whitewater were in fact the only Native
American, all of the men featured in the lineup shared similar
physical characteristics such that Whitewater's ethnicity did not
isolate him." US v. Whitewater (8C 2018) 879 F3 289, 292.

[42] CAL: P v. De Angelis (1979)
97 CA3 837, 841 ["The contention of 'strategically' placing
defendant's photo toward the center of the display fails of merit.
No matter where placed, a like complaint could be made."];
P v. Davis (1969) 2 CA3 230, 237-38 [immaterial that
defendant was at the end of the line]; P v. Faulkner (1972)
28 CA3 384, 392 ["the positions of the lineup participants were
allotted by chance drawing"].

[43] QUOTE FROM:
P v. Johnson (1992) 3 C4 1183, 1217.

[44] CAL: Pen. Code§ 859.7(a)(6).

[45] CAL: P v.
DeSantis (1992) 2 C4 1198, 1223 [short suspect stood on
books that were concealed from the witnesses]; P v.
Adams (1982) 137 CA3 346 [bandage covered up]; P v.
De Angelis (1979) 97 CA3 837 [all the photos of comparable
fillers were in black and white, and the only photo of the suspect
was in color, so officers reproduced the color photo in black and
white].

[46] CAL: P v.
Slutts (1968) 259 CA2 886 ["To be completely fair [the
investigator] should have sketched beards on all the
photographs."].

[47] CAL: P v.
Wimberly (1992) 5 CA4 773, 790 [a suspect may not challenge
a lineup "when his own conduct has caused the procedure to be
suggestive."]; P v. Yeoman (2003) 31 C4 93,
125 [the rule prohibiting suggestive lineups and showups "speaks
only to suggestive identification procedures employed by the
People."]; P v. Boyd (1990) 222 CA3 541, 574.

[48] USSC: Simmons v.
US (1968) 390 US 377, 384, 386, fn.6. CAL:
P v. Wilson (2021) 11 C5 259, 286 ["We have previously
concluded a witness viewing multiple photo lineups and making an
identification each time was not the product of unduly suggestive
procedure, and conclude that is true here."]; P v.
Alexander (2010) 49 C4 846, [prosecutors showed the witness
the photos of defendant and others the night before trial to learn
what he would say about them before asking him in front of the
jury. "This was not an unduly suggestive and unnecessary procedure
under the facts of this case"]; P v.
Johnson (2010) 183 CA4 253, 272 ["California and federal
courts have rejected [the argument] that identification procedures
are impermissibly suggestive if the defendant is the only person
appearing in both a display of photographs and a subsequent
lineup."]; P v. Cook (2007) 40 C4 1334, 1355
["the fact that the defendant alone appeared in both a photo
lineup and a subsequent live lineup does not per se violate due
process"]; P v. Wimberly (1992) 5 CA4 773, 789
["California and federal courts have rejected the argument that
identification procedures are impermissibly suggestive if the
defendant is the only person appearing in both a display of
photographs and a subsequent lineup."]; P v.
DeSantis (1992) 2 C4 1198, 1224 ["The fact that defendant
was the only person common to both lineups did not per se violate
his due process rights."]; P v.
Faulkner (1972) 28 CA3 384, 390 [court rejects argument
that lineup was unduly suggestive because the defendant appeared
in a previous lineup]. ALSO SEE: P v.
Yeoman (2003) 31 C4 93, 124-25 [although defendant's photo
appeared in two photo lineups, the witness did not identify him in
the first lineup, plus the officers used a different photo in the
second lineup and the second lineup occurred about a month after
the first one]; P v. Holt (1972) 28 CA3 343,
350 ["A photographic identification procedure is not rendered
unduly suggestive by the inclusion of two photographs of the
accused."]; P v. Yeoman (2003) 31 C4 93, 124-25 [no
rule exists that any attempt to elicit an ID of the defendant from
a witness after the witness failed to identify him is necessarily
unduly suggestive].

[49] USSC: Foster v.
California (1969) 394 US 440, 442-43 ["this case presents a
compelling example of unfair lineup procedures [as the suspect]
was wearing a leather jacket similar to that worn by the robber"].
CAL: P v. Caruso (1968) 68 C2 183, 187
["During the robbery [the witnesses] noted the driver's large size
and dark complexion, and, if they were to choose anyone in the
lineup, defendant was singularly marked for identification."];
P v. Ware (1978) 78 CA3 822, 839 ["Appellant was
also the only person in the photos wearing a blue denim jacket of
the type she reported her assailant was wearing."].
9th CIR: Torres v.
City of Los Angeles (9C 2008) 548 F3 1197, 1208 [only
defendant and one other person in a six-person photo lineup were
chubby like the perpetrator]. OTHER: US v. Ford (7C
2012 683 F3 761, 765-66 ["The only description that the manager
had given the police was that the robber was very fair and had
freckles, and only Ford's photo matches that description."];
Raheem v. Kelly (2C 2001) 257 F3 122, 134 ["A
lineup is unduly suggestive as to a given defendant if he meets
the description of the perpetrator previously given by the witness
and the other lineup participants obviously do not."].
BUT ALSO SEE: P v. Wilson (2021) 11 C5 259, 285 ["To
the extent Wilson's mouth shape was distinct from the other
individuals depicted, we have acknowledged all humans appear
somewhat different from one another."]; P v.
Arias (1996) 13 C4 92, 169-70 [the witness's "recollection
and use of a distinct aspect of the robber's appearance [i.e., 'a
bad case of acne'] enhances, rather than undermines, the inference
that his photo identification was accurate"];
In re Charles B. (1980) 104 CA3 541, 544-45 [although the
perpetrator wore a bandana, and although the defendant was the
only person in the photo lineup who wore a bandana, "two of the
other photos showed persons with different headgear"].
COMPARE: P v. Davis (1969) 2 CA3 230,
237 ["Defendant was in a lineup of eight men all of whom were
wearing blue jackets similar to the one defendant wore when he
robbed the liquor store."]; P v.
Gonzalez (2006) 38 C4 932, 944 ["Defendant's tattoo did not
make the live lineup impermissibly suggestive. None of the
witnesses observed a tattoo on the gunman's head."]; P v.
Hill (1974) 12 C3 731, 766, fn.35 [although the victim said
the perpetrator "wore a mask or had a beard," and although the
defendant may have been the only person in the photo lineup who
had a beard, this was not unduly suggestive because the witness
said he based his identification on the defendant's "eyes, cheeks,
nose, and hairline"].

[50] CAL: P v.
DeSantis (1992) 2 C4 1198, 1222 ["This hardly uncommon
apparel cannot be termed a badge of identity here"]; P
v. Cunningham (2001) 25 C4 926, 990 ["at least one
of the other men is dressed in a three-piece suit, and another is
wearing a suit jacket"]; P v. Dontanville
(1970) 10 CA3 783, 792 ["While it is true that defendant's
photograph has the mustache with the most pronounced gap in the
center [a characteristic of the perpetrator observed by witnesses
to the crime], others of the photographs have mustaches with at
least slight gaps."]; P v. Harris (1971) 18
CA3 1, 6 ["The mere fact that defendant was wearing the same color
pants worn by the robber did not make the lineup unfair."].

[51] USSC: US v.
Ash (1973) 413 US 300, 321 ["the Sixth Amendment does not
grant the right to counsel at photographic displays"]. CAL:
P v. Virgil (2011) 51 C4 1210, 1256 ["the
Sixth Amendment does not guarantee a criminal defendant the right
to counsel at a photographic lineup"]; P v.
Reese (1981) 121 CA3 606, 613 ["The crucial distinction
between a live lineup and a photo lineup is that the photo lineup
can be reproduced in court, so the trier of fact can determine
suggestiveness."]; P v. Hawkins (1970) 7 CA3 117,
121 ["Any suggestive influences present at a photo-identification
in large measure are preserved by the photographic evidence, or
readily detectable by cross-examination of the participants."];
P v. Lawrence (1971) 4 C3 273, 279-80 ["we conclude
the right to counsel does not extend to post-arrest photographic
identification proceedings"]. OTHER: US v.
Gallo-Moreno (6C 2009) 584 F3 751, 760 [no Sixth Amendment
right to counsel unless the suspect was "present in a trial-like
confrontation"].

[52] USSC: Perry v.
New Hampshire (2012) 565 US 228, 246 [the attorney "can
expose the flaws in the eyewitness' testimony during
cross-examination and focus the jury's attention on the
fallibility of such testimony during opening the closing
arguments."]; US v. Ash (1973) 413 US 300,
312; US v. Wade (1967) 388 US 218, 230-1,
236. CAL: P v. Carpenter (1999) 21 C4
1016, 1046 ["defense counsel must not be allowed to interfere with
a police investigation"]; P v.
Bustamante (1981) 30 C3 88, 99 ["At most, defense counsel
is merely present at the lineup to silently observe and to later
recall his observations for purposes of cross-examination or to
act in the capacity of a witness"]; P v.
Williams (1971) 3 C3 853, 856 [the right to counsel was
adopted "to enable an accused to detect any unfairness in his
confrontation with the witness, and to insure that he will be
aware of any suggestion by law enforcement officers, intentional
or unintentional, at the time the witness makes his
identification."]. ALSO SEE: P v.
Williams (1971) 3 C3 853, 860 (dis. opn. of Mosk, J.):
"defense counsel has no affirmative right to be active during the
course of the lineup. He cannot rearrange the personnel,
cross-examine, ask those in the lineup to say anything or to don
any particular clothing or to make any specific gestures. Counsel
may not insist law enforcement officials hear his objection to
procedures employed, nor may he compel them to adjust their lineup
to his views of what is appropriate. ¶ At most, defense counsel is
merely present at the lineup to silently observe and to later
recall his observations for purposes of cross-examination or to
act in the capacity of a witness." ALSO SEE:
P v. Carpenter (1999) 21 C4 1016, 1046 ["As Justice
Mosk's strong dissent, joined by two others, noted, defense
counsel must not be allowed to interfere with a police
investigation."].

[53] CAL: P v.
Williams (1971) 3 C3 853; P v. Harmon (1989)
215 CA3 552, 566; P v. Carpenter (1999) 21 C4 1016,
1046 [court distinguishes Williams]; P v.
Malich (1971) 15 CA3 253, 261 ["the attorney's exclusion
from the actual identification after the lineup emasculates the
lineup and vitiates an in-court identification based upon it"].

[54] CAL: P v.
Carpenter (1999) 21 C4 1016, 1045; P v.
Carpenter (1997) 15 C4 312, 368 ["Defendant cites no
authority that defense counsel must be given time to scrutinize
the police reports before the lineup."]; P v.
Perkins (1986) 184 CA3 583, 591 ["since the identification
process had been completed, Perkins' counsel had no more right to
be present at the interview than he would at any
nonconfrontational identification by a victim"]; P v.
Mitcham (1992) 1 C4 1027, 1067 ["The premise of defendant's
argument—that the lineup identification was not complete until
[the interview]—is plainly incorrect. the lineup identification
procedure was complete when [the victim] filled out and signed the
identification card"].

[55] CAL: P v.
Wimberly (1992) 5 CA4 773; P v.
Nichols (1969) 272 CA2 59, 64.

[56] CAL: P v.
Hart (1999) 20 C4 546, 625 ["the public defender's
refusal to attend the lineup cannot be equated with a
denial of defendant's right to counsel"].

[57] USSC: Montejo v.
Louisiana (2009) 556 US 778, 786 [Sixth Amendment waiver
must be "voluntary, knowing, and intelligent"].

[58] USSC: US v.
Wade (1967) 388 US 218, 237. CAL: P v.
Wells (1971) 14 CA3 348, 354; P v.
Banks (1970) 2 C3 127, 134.

[59] CAL: P v.
Thomas (1970) 5 CA3 889, 897; P v.
Banks (1970) 2 C3 127, 136; P v. Wells (1971)
14 CA3 348, 354.

[60] CAL: P v.
Banks (1970) 2 C3 127, 134-36; P v.
Schafer (1970) 4 CA3 554, 560.

[61] USSC: Moore v.
Illinois (1977) 434 US 220, 231; US v.
Wade (1967) 388 US 218, 239-41; Gilbert v.
California (1967) 388 US 263, 272-73. CAL:
P v. Diggs (1980) 112 CA3 522, 528.

[62] USSC: US v.
Wade (1967) 388 US 218, 242 ["On the record now before us
we cannot make the determination whether the in-court
identification had an independent origin."]; Gilbert
v. California (1967) 388 US 263, 272 ["the record
does not permit an informed judgment whether the in-court
identifications… had an independent source"]. CAL:
P v. George (1972) 23 CA3 767, 774 [the
prosecution "must show that there was a sufficient independent
source for the in-court identification"].

[63] USSC:
Neil v. Biggers (1972) 409 US 188, 198 ["It is, first of
all, apparent that the primary evil to be avoided is 'a very
substantial likelihood of irreparable misidentification.' While
the phrase was coined as a standard for determining whether an
in-court identification would be admissible in the wake of a
suggestive out-of-court identification, with the deletion of
'irreparable' it serves equally well as a standard for the
admissibility of testimony concerning the out-of-court
identification itself."]. NOTE: Unintentional suggestiveness: If the actions of officers
rendered a lineup or showup unduly suggestive, it is immaterial
that they did not intend to do so. See
P v. Rodriguez (1977) 68 CA3 874, 881 ["it matters not
whether the incident at [the officer's] office was caused by
inadvertence"]. Suggestiveness if ID is not contested: If
the identity of the perpetrator was not a contested issue in
court, any suggestiveness in the lineup would be irrelevant. See
In re Carlos M. (1990) 220 CA3 372, 386, fn.8 ["We are
unaware of any case permitting a defendant who admits involvement
to claim prejudicial error based on a faulty lineup."].
ALSO SEE: P v. Virgil (2011) 51 C4 1210, 1256 ["If
the answer to the first question is 'no,' because we find that the
challenged procedure was not unduly suggestive, our inquiry into
the due process claim ends."]; P v. Avila (2009) 46 C4 680,
699 ["Because we have concluded the lineup was not unduly
suggestive, we need not consider whether it was reliable"];
P v. Johnson (2010) 183 CA4 253, 272 ["If the defendant
fails to show that the identification procedures were unduly
suggestive, we need not address any arguments regarding the
identifications' reliability"]; P v. Yeoman (2003) 31 C4
93, 125 ["Only if the challenged identification procedure is
unnecessarily suggestive is it necessary to determine the
reliability of the resulting identification."];
P v. Ochoa (1998) 19 C4 353, 412 ["If, and only if, the
answer to the first question is yes [i.e., Was the procedure
unduly and unnecessarily suggestive?] and the answer to the second
question is no [i.e., Was the ID nevertheless reliable?], is the
identification constitutionally unreliable."].

[64] USSC: Manson v.
Brathwaite (1977) 432 US 98, 116 ["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."]; Foster v. California (1969) 394
US 440, 442, fn.2 ["The reliability of properly admitted
eyewitness identification, like the credibility of the other parts
of the prosecution's case is a matter for the jury."];
Simmons v. US (1968) 390 US 377, 384 ["The
danger that use of the [photo lineup] technique may result in
convictions based on misidentification may be substantially
lessened by a course of cross-examination at trial which exposes
to the jury the method's potential for error."]. CAL:
P v. Perkins (1986) 184 CA3 583, 591 ["Here,
Perkins's counsel was able to effectively develop and
cross-examine witnesses about the facts of Maria's identification.
No more was required."]. OTHER: US v.
Williams (7C 2008) 522 F3 809, 811 ["The normal way of
dealing with [errors] is to expose the problem at trial so that a
discount may be applied to the testimony, rather than to exclude
relevant evidence."]; US v. Henderson (1C
2003) 320 F3 92, 101 ["Short of [a very substantial likelihood of
irreparable misidentification], such evidence is for the jury to
weigh."]. ALSO SEE: P v. Rist (1976) 16 C3
211, 216 ["Confusion, or lack of clarity and positiveness in a
witness' identification testimony goes to the weight, not the
admissibility of the testimony."]; P v. Prado (1982)
130 CA3 669, 674 ["Hansen's failure to make a positive
identification of appellant based on photographic displays merely
goes to the weight of the evidence, not its sufficiency."].

[65] QUOTE FROM:
Neil v. Biggers (1972) 409 US 188, 198 [emphasis added].
USSC: US v. Crews (1980) 445 US 463, 473 ["the trial
court expressly found that the witness' courtroom identification
rested on an independent recollection of her encounter with the
assailant"]; Gilbert v. California (1967) 388 US 263, 272
["The admission of the in-court identifications without first
determining that they were not tainted by the illegal lineup but
were of independent origin was constitutional error."].
CAL: P v. Tereskinski (1982) 30 C3 822, 834 ["if the
witness, relying upon his memory of the crime, is able to identify
the defendant based upon his physical appearance, the testimony of
the witness rests upon an adequate independent basis"];
P v. Rodriguez (1993) 21 CA4 232, 241 ["[The in-court
identifications] are admissible because they were based on the
witnesses' independent recollections of the crime."];
P v. Reagan (1982) 128 CA3 92, 101-2;
P v. Williams (1988) 44 C3 883, 918-19;
In re Dung T. (1984) 160 CA3 697, 717-18 ["Clearly if the
in-court identification was independent of the [illegal] lineup
identification, the in-court identification would be admissible"];
P v. Nation (1980) 26 C3 169, 181 ["The mere fact that [the
witness] testified at trial that her identifications stemmed from
her observation at the time and place of the street encounter begs
the critical inquiry, i.e., 'How did her testimony as to her
specific observations tend to show that her in-court
identification was not infected with the taint of the illegal
pretrial confrontation?'"]; P v. Williams (1973) 9 C3 24,
37 ["there being evidence that his in-court identification had an
origin independent of any pretrial identification procedure, it
was properly received"]; P v. Malich (1971) 15 CA3 253, 261
["If an in-court identification has a source independent of the
illegal confrontation preceding it, its admission is not error."].
OTHER: US v. Lawson (DCC 2005) 410 F3 735, 739, fn.
3 ["If an out-of-court identification is held inadmissible, any
subsequent in-court identification by the same witness will also
be barred, unless the prosecution can show an independent,
untainted source for the in-court identification."].

[66] QUOTE FROM:
US v. Correa-Osorio (1C 2015) 784 F3 11, 19.

[67] USSC:
Manson v. Brathwaite (1977) 432 US 98, 116;
US v. Crews (1980) 445 US 463, 473 ["the trial court
expressly found that the witness' courtroom identification rested
on an independent recollection of her encounter with the
assailant"]. CAL: P v. Cook (2007) 40 C4 1334, 1354
["The cases hold that despite an unduly suggestive identification
procedure, we may deem the identification reliable under the
totality of the circumstances, after we consider such factors as
the witness's opportunity to view the suspect at the time of the
offense, the witness's degree of attention at that time, the
accuracy of the witness's prior description, the level of
certainty the witness expressed when making the identification,
and the lapse of time between the offense and the
identification."]. OTHER: Lee v. Foster (7C 2014)
750 F3 687, 692 ["Even if we found Johnson's identification
procedure to be unnecessarily suggestive, however, it was
nonetheless reliable under the circumstances."]. ALSO SEE:
P v. Nation (1980) 26 C3 169, 181 ["The mere fact that [the
witness] testified at trial that her identifications stemmed from
her observation at the time and place of the street encounter begs
the critical inquiry, i.e., 'How did her testimony as to her
specific observations tend to show that her in-court
identification was not infected with the taint of the illegal
pretrial confrontation?'"]. NOTE: In the past, pretrial
identification testimony would be suppressed if officers employed
procedures that were unduly "suggestive." See Neil
v. Biggers (1972) 409 US 188, 198. This changed in
1977 when the Supreme Court pointed out in Manson
v. Brathwaite (1977) 432 US 98, 114 that
suggestiveness, while relevant, does not necessarily lead to
misidentification; that the proper test for determining the
admissibility of a pretrial identification is simply whether it is
reliable. Said the Court, "Reliability is the linchpin in
determining the admissibility of identification testimony."

[68] USSC: Colman v.
Alabama (1970) 399 US 1, 4 ["This is a claim that must be
determined on the totality of the surrounding circumstances."];
Stovall v. Denno (1967) 388 US 293,
302 ["However, a claimed violation of due process of law in the
conduct of a confrontation depends on the totality of the
circumstances surrounding it"]; Simmons v.
US (1968) 390 US 377, 383 ["This is a claim which must be
evaluated in light of the totality of surrounding
circumstances."]. CAL: P v. Sanchez (2019) 7 C5 14,
36 [several indications of reliability]; P v.
Cook (2007) 40 C4 1334, 1354 ["The cases hold that despite
an unduly suggestive identification procedure, we may deem the
identification reliable under the totality of the circumstances"];
P v. Nguyen (1994) 23 CA4 32, 39 ["even if we were
to determine that the procedure was suggestive, we would still
conclude that the identification was reliable under the totality
of the circumstances"]; P v. Kennedy (2006)
36 C4 595, 610 ["Admission of the identification evidence is error
only if… it is unreliable under the totality of
circumstances."]; P v. Clark (1992) 3 C4 41,
137 [reliability test applies to voice-only lineups].

9th CIR: Torres v.
City of Los Angeles (9C 2008) 548 F3 1197, 1209 ["a
suggestive photo array may still serve as a basis for probable
cause if sufficient indicia of reliability are present"].
OTHER: US v. Williams (7C 2008) 522 F3
809, 812 [although the defendant was arguably marked for
identification, there was strong evidence that the identification
was reliable].

[69] USSC: US v.
Wade (1967) 388 US 218, 229 ["[The dangers of
misidentification] are particularly grave when the witness'
opportunity for observation was insubstantial, and thus his
susceptibility to suggestion the greatest."] CAL:
P v. Cook (2007) 40 C4 1334, 1354 ["we consider such
factors as the witness's opportunity to view the suspect at the
time of the offense"].

[70] EXAMPLES: The following are
comments from courts in ruling that the witness had a good
opportunity to view the perpetrator:

• Witness observed the defendant from 30 feet away on a very
bright day. In re G.B. (2018) 24 CA5 464, 467].

• Stabbing victim "turned around and faced [the assailant]
from a distance of only 10 feet and asked him to put the knife
down."
P v. Chavez (2018) 22 CA5 663, 677.

• "Malloy had three opportunities to view the taller robber:
(1) when the two robbers forced their way into the restaurant; (2)
when Malloy removed the money from the safe; and (3) when Malloy
handed the victims' personal belongings to the taller robber in
the freezer. In all, Malloy estimated that he had "a good three
minutes" to view the taller robber."
Sanders v. Cullen (9C 2017) 973 F3 778, 797.

• "two to three minutes ... within two feet ... natural light
…" Manson v. Brathwaite (1977) 432 US
98, 114.

• "up to half an hour ... under adequate artificial light in
her house and under a full moon outdoors…" Neil
v. Biggers (1972) 409 US 188, 200.

• "The robbery took place in the afternoon in a well-lighted
bank. The robbers wore no masks. Five bank employees had been able
to see the robber for periods ranging up to five minutes."
Simmons v. US (1968) 390 US 377, 385.

• "a well-lit store ..." P v.
Arias (1996) 13 C4 92, 168.

• "as close as 1½ feet…" P v.
Blum (1973) 35 CA3 515, 519.

• "she was 'locked in eye-to-eye contact' with the man for 30
to 60 seconds." P v. Kennedy (2005) 36 C4 595, 610.

• "close range for at least three minutes ..." P v.
York (1980) 108 CA3 779, 786.

• 15-20 minutes, "clear and unobstructed view ... under
well-lighted conditions ..." P v. Ware (1978) 78 CA3
822, 839, fn.11.

• "approximately 12 minutes during the assault, her home was
well-lighted…" P v. Wells (1971) 14
CA3 348, 355.

• "unobstructed view ... for at least three minutes…"
P v. Rist (1976) 16 C3 211, 216.

• "well-lit bedroom for a couple of minutes…"
P v. Fortier (1970) 10 CA3 760, 764.

• "directly under a street light," victim observed the
robber's face "from a distance of an arm's length plus eight to
ten inches…" P v. Johnson (1989) 210 CA3 316,
323.

• "20-to-30 second opportunity ... with lighting provided by
the headlights of both cars and a streetlight ... looked him in
the face…" P v. Martinez (1989) 207 CA3 1204,
1220.

• Kidnapping victim had "ample time" to see the perpetrator's
face while he drove her around in a car. P v.
Brandon (1995) 32 CA4 1033, 1052.

• "Her view of his face with the nylon covering (which did
not distort his features) from a foot away lasted about a minute
and a half." P v. Edwards (1981) 126 CA3 447, 454.

• "unobstructed view of his face as he entered the market ...
she was very near him…" P v. Hawkins (1970) 7
CA3 117, 124.

• "[The witness] had an opportunity to view defendant for
several minutes before defendant shot Trego, and [the witness]
started to run." P v. Cunningham (2001) 25 C4
926, 990.

• "He observed the visitor for a period of three to five
minutes from a distance of about eighteen inches. The lighting was
excellent." P v. Blair (1979) 25 C3 640, 658.
Compare Moore v. Illinois (1977) 434 US 220,
229 ["only 10 to 15 seconds" after awakening from a nap];
P v. Bisogni (1971) 4 C3 582, 587 [only "two short
looks" and "a glance"]; P v. Caruso (1968) 68 C2
183, 188 ["fleeting glance"]; P v. Nation (1980) 26
C3 169, 181 [a "glance"].

• Voice lineup: "The first call was approximately 30 minutes
in length. The second call lasted for about two minutes."
P v. Clark (1992) 3 C4 41, 137.

• "The robbery lasted three to five minutes, [the victim]
spent three-quarters of the time observing defendant's face."
P v. Bethea (1971) 18 CA3 930, 934.

• "at close range ... seventy-five minutes."
In re Carlos M. (1990) 220 CA3 372, 387.

• "[The victim's] degree of attention was high since there
were no other customers in the store, and appellant's companion
[had] asked for [the victim's] assistance." P v.
Nguyen (1994) 23 CA4 32, 39.

• The victim "observed defendants face-to-face, at a close
distance, as they approached him" and "he looked at them every
time he had the chance [during the robbery]." US v.
Rivera (1C 2009) 555 F3 277, 284.

• Both bank tellers "had the opportunity to plainly see
Jones."
US v. Jones (8C 2008) 535 F3 886, 891.

• The witness "viewed Davis for three to five minutes from
her office and could see his face for about two minutes."
US v. Davis (5C 2014) 754 F3 278, 282. COMPARE:
US v. Nolan (2C 2020) 956 F3 71, 75 ["The robbers were
partially disguised."].

• The bank teller "observed [the robber] at close range and
for a considerable period of time." US v.
Lawson (DCC 2005) 410 F3 735, 739. Compare Moore
v. Illinois (1977) 434 US 220, 229 ["only 10 to 15
seconds" after awakening from a nap]; P v.
Bisogni (1971) 4 C3 582, 587 [only "two short looks" and "a
glance"]; P v. Caruso (1968) 68 C2 183, 188
["fleeting glance"]; P v. Nation (1980) 26 C3 169,
181 [a "glance"].

[71] USSC: Moore v.
Illinois (1977) 434 US 220, 229 ["only 10 to 15 seconds"
after awakening from a nap]. CAL: P v.
Bisogni (1971) 4 C3 582, 587 [only "two short looks" and "a
glance"]; P v. Caruso (1968) 68 C2 183, 188
["fleeting glance"]; P v. Nation (1980) 26 C3 169,
181 [a "glance"].

[72] EXAMPLES: The following are
comments from courts in ruling that the witness's attention had
been directed at the perpetrator:

• Informant was "paying careful attention" to Castro–Caicedo
during these meeting" and the informant "testified he was meeting
with coconspirators to forge a deal about a drug shipment."
US v. Castro-Caicedo (1C 2014) 775 F3 93, 99.

• "She was no casual observer, but rather the victim of one
of the most personally humiliating of all crimes." Neil
v. Biggers (1972) 409 US 188, 200.

• "Glover was not a casual or passing observer, as is so
often the case with eyewitness identification." Manson
v. Brathwaite (1977) 432 US 98, 115.

• "This was not a case of a hurried look in circumstances
where there was no reason to observe with particularity."
P v. Bauer (1969) 1 C3 368, 374.

• "[The victim] kept reminding herself to study the fact of
the robber because she knew she would be called upon later to
identify him." P v. Gomez (1976) 63 CA3 328, 336.

• "[The witness] focused on his attackers' faces in order to
identify them if he survived the attack." P v.
Sanders (1990) 51 C3 471, 508.

• "[The witness] looked straight in his face, and made a
conscious effort to stare at him. Her degree of attention could
hardly have been higher: appellant Phan was a threat not only to
her but to her children." P v. Phan (1993) 14 CA4
1453, 1462.

• "The witness had been attentive to defendant, a stranger
who had presented himself under extraordinary and suspicious
circumstances." P v. Harpool (1984) 155 CA3 877,
886.

• "The victim took time while in the motel room to get a
clear view, under daylight, of her assailant." P v.
Kilpatrick (1980) 105 CA3 401, 412.

• "Their degree of attention [during a 'tense conversation']
can hardly be passed off as that of casual observers."
In re Cindy E. (1978) 83 CA3 393, 402.

• "The [phone] calls were highly unusual, and Cohen paid
close attention." P v. Clark (1992) 3 C4 41, 73.

• Robbery victim: "I just know that I would always know him
if I ever saw him again." P v. Brown (1969) 273 CA2
109, 112.

• "He was no mere casual observer but a crime victim
subjected to a close, extended encounter with the perpetrators."
P v. Arias (1996) 13 C4 92, 168.

• "Her degree of attention was high: she kept fighting off
defendant, who was trying to remove her clothes." P v.
Cowger (1988) 202 CA3 1066, 1072.

• "The clerk paid close attention to the robbers' appearance
(as demonstrated by her ability to provide an accurate
description").
US v. Arthur (1C 2014) 764 F3 92, 101.

[73] USSC: Manson v.
Brathwaite (1977) 432 US 98, 115 ["as a specially trained,
assigned, and experienced officer, he could be expected to pay
scrupulous attention to detail"]. CAL: P v.
Fortier (1970) 10 CA3 760, 765 [officers are "trained to
notice a suspect's physical characteristics"]; P v.
Bethea (1971) 18 CA3 930, 934 [liquor store manager "had
been the victim of three robberies"]. 9th CIR: US
v. Duran-Orozco (9C 1999) 192 F3 1277, 1282 ["He
gave them the attention an alert police officer would give to
possible suspects"]. OTHER: US v.
Gallo-Moreno (6C 2009) 584 F3 751, 758 ["Tovar's status as
a DEA agent bolsters our conclusion about his degree of
attention"]"].

[74] EXAMPLES: The following are
comments from courts pertaining to the witness's detailed
description of the perpetrator:

• The description included "the assailant's approximate age,
height, weight, complexion, skin texture, build, and voice."
Neil v. Biggers (1972) 409 US 188, 200. Also
see P v. Blum (1973) 35 CA3 515, 519 ["a
detailed description"].

• The witness identified the attacker as a man wearing a red
T-shirt and blue jeans. "The only other man with a red T-shirt was
wearing white shorts, not blue jeans, and had a distinctively
different appearance." P v. Chavez (2018) 21 CA5 971.

• The description included the perpetrator's "race, his
height, his build, the color and style of his hair, and the high
cheekbone facial feature. It also included clothing [he] wore."
Manson v. Brathwaite (1977) 432 US 98, 115.

• "[The witness] described his age, facial appearance and his
wearing apparel, as well, in some detail." P v.
Rodriguez (1970) 10 CA3 18, 32.

• Description included "clothing, hair, complexion, facial
hair, height, weight, and condition of intoxication." P v.
Martinez (1989) 207 CA3 1204, 1220.

• "Initially, the victims were unable to give investigators a
detailed description of the robbers beyond noting that they were
light-skinned or Hispanic." US v. Nolan (2C 2020) 956 F3
71, 75.

[75] QUOTE FROM: P v.
Flint (1986) 180 CA3 13, 18. USSC: Neil
v. Biggers (1972) 409 US 188, 200 [witness's
description "included the assailant's approximate age, height,
weight, complexion, skin texture, build, and voice"]. CAL:
P v. Lewis (1966) 240 CA2 546, 548 [ID based on
defendant's "build, walk, and mannerisms"].

.[76] QUOTE FROM: P v. Cunningham (2001) 25
C4 926, 958, 990 [perpetrator was "dressed distinctively"; i.e.,
"burgundy three-piece pinstripe polyester suit and tie ... thick
glasses with dark rims ... mustache that connected with a
goatee-like beard ... hair in back was shoulder-length in the
middle"]. CAL: P v. LeBlanc (1972) 23 CA3
902, 906 [the "oddity" of the perpetrator's hair styling caused
the victim to notice him]; P v. Arias (1996) 13 C4
92, 169-70 ["In our view, [the witness's] recollection and use of
a distinct aspect of the robber's appearance enhances, rather than
undermines, the inference that his photo identification was
accurate."]; P v. Malich (1971) 15 CA3 253, 261-62
["small wire on her upper right teeth, as though she were wearing
a dental plate"]; P v. Harpool (1984) 155 CA3 877,
886 ["very distinct dental features"]; P v.
Faulkner (1972) 28 CA3 384, 392 ["unusual high forehead"
and "chuke"].

[77] CAL: P v. Sanchez (2019) 7
C5 14, 37 [witness had seen suspect twice before single-photo
lineup]; P v. LeBlanc (1972) 23 CA3 902, 906
["defendant had been a customer of the store before on several
occasions"]; P v. Nash (1982) 129 CA3 513, 515 ["The
victim had seen appellant around the neighborhood on one or two
occasions prior to this event."]; P v. Phan (1993)
14 CA4 1453, 1462 ["[The witness] had seen him before, four days
earlier when he had attempted to open her garage."]; P v.
Rodriguez (1977) 68 CA3 874, 882 ["[The witness] remembered
defendant because she had seen him on two separate
occasions before she saw the photograph of him"].
OTHER: US v. Books (7C 2019) 914 F3 574, 578 [bank
tellers had "prior dealings and first-hand familiarity with
[Books]."]; US v. Omar (8C 2015) 786 F3 1104, 1109 ["we
have reasoned that when someone already familiar with a suspect is
asked to comment on whether a recorded voice or image portrays the
suspect ... concerns about the prejudicial effect of undue
suggestiveness are absent.]."

[78] USSC: Manson v.
Brathwaite (1977) 432 US 98, 115 ["There is no question
whatsoever."]; Neil v. Biggers (1972) 409 US
188, 200-1 ["no doubt"]; Simmons v. US (1968)
390 US 377, 385 ["none of the witnesses displayed any doubt"];
Coleman v. Alabama (1970) 399 US 1, 5 ["That
man, there, is the one"]. CAL: P v.
Kennedy (2005) 36 C4 595, 611 ["Oh, my God, that's him"];
P v. Greene (1973) 34 CA3 622, 641 ["My God, that's
him"]; P v. Jardine (1981) 116 CA3 907, 915 ["That's
the two guys right there."]; P v. Wash (1993) 6 C4
215, 245 ["no uncertainty"]; P v. Clark (1992) 3 C4
41, 137 [ID was "positive and unshaken"]; P v.
West (1984) 154 CA3 100, 105 ["without hesitation"];
P v. Fortier (1970) 10 CA3 760, 764 ["no doubt"];
P v. Gomez (1976) 63 CA3 328, 336 ["no doubt in her
mind"]; P v. Sanders (1990) 51 C3 471, 508
["certain"]; In re Carlos M. (1990) 220 CA3 372, 387
["positive"]; P v. Martinez (1989) 207 CA3 1204,
1220 ["certain"]; P v. Kilpatrick (1980) 105 CA3
401, 412 ["positive"]; P v. Bethea (1971) 18 CA3
930, 934 ["This is the one."]. OTHER:
US v. Davis (5C 2014) 754 F3 278, 282 [ID was made in "less
than a minute"]. ALSO SEE: P v. Brown (1969)
273 CA2 109, 112 [Robbery victim: "I just know that I would always
know him if I ever saw him again."]; P v.
Guillebeau (1980) 107 CA3 531, 557 [the witness "emphasized
that she would never forget appellant's face"].

[79] QUOTE FROM: P v.
Rist (1976) 16 C3 211, 216. CAL: P v.
Lewis (1966) 240 CA2 546, 548 ["lack of positiveness in
identification does not destroy the value of the identification
but goes onto to its weight"]; P v.
Prado (1982) 130 CA3 669, 674 ["Hansen's failure to make a
positive identification of appellant based on photographic
displays merely goes to the weight of the evidence, not its
sufficiency."].

[80] CAL: P v. Chavez (2018) 22
CA5 663, 676 ["Without hesitation"]; P v.
Wells (1971) 14 CA3 348, 355 ["instantaneous" ID];
P v. Harris (1971) 18 CA3 1, 6 ["immediately"];
P v. Hawkins (1970) 7 CA3 117, 123
["unhesitatingly"]; P v. LeBlanc (1972) 23 CA3 902,
906 ["unhesitantly"]; P v. Dontanville (1970)
10 CA3 783, 793 ["immediately"]; P v. Cowger (1988)
202 CA3 1066, 1072 ["instantaneously"]; P v.
Brandon (1995) 32 CA4 1033, 1052 ["immediately"].
OTHER: US v. Arthur (1C 2014) 764 F3 92, 102
["immediately"].

the record reveals that the clerk recognized the appellant
immediately, evincing a stark and visceral reaction.

[81] CAL: P v.
Arias (1996) 13 C4 92, 169 [veteran officer testified "a
witness typically selects a photo, if at all, within five minutes
or so," but that taking 15 to 20 minutes would indicate indecision
which he would include in his report].

[82] CAL: P v.
Guillebeau (1980) 107 CA3 531, 557 [the witness was able to
help make a composite picture of her assailant "which strongly
resembled appellant"]; In re Carlos M. (1990) 220
CA3 372, 387 ["generally accurate description"]; P v.
Sanchez (1982) 131 CA3 718, 731 ["there was substantial
congruity between her prelineup description and appellant's actual
description"]; P v. Johnson (1989) 210 CA3 316, 323
["his description of the perpetrator matched Johnson precisely"];
P v. Kilpatrick (1980) 105 CA3 401, 412 ["Her
descriptions of defendant's vehicle and personal appearance as
well as her clothing ... were all accurate."]; P v.
Blum (1973) 35 CA3 515, 519 ["a detailed description"];
P v. Cunningham (2001) 25 C4 926, 989.

[83] USSC: US v.
Wade (1967) 388 US 218, 241 ["any discrepancy between any
pre-lineup description and the defendant's actual description" is
relevant].

[84] CAL: P v.
Virgil (2011) 51 C4 1210, 1256 ["Inconsistencies in her
descriptions of the man she saw, and in her accounts of her
activities on the day of the murder, are matters affecting the
weight of her eyewitness testimony, not its admissibility."];
In re Carlos M. (1990) 220 CA3 372, 387 ["The accuracy of
her description of appellant, while inaccurate as to the type of
pants he was wearing, was an otherwise generally accurate
description."]; P v. Arias (1996) 13 C4 92, 169
["These estimates are not so disparate as to cast particular
suspicion on Lam's reliability at trial."]; P v.
Smith (1970) 4 CA3 41, 48 ["Crime victims often have
limited opportunity for observation; their reports may be hurried,
perhaps garbled by fright or shock."]; P v.
Blair (1979) 25 C3 640, 662 ["In spite of these
discrepancies, there are significant factors pointing in the
direction of reliability."].

[85] USSC: Neil v.
Biggers (1972) 409 US 188, 201 ["the victim made no
previous identification at any of the showups, lineups, or
photographic showups. Her record for reliability was thus a good
one"]. CAL: P v. Wilson (2021) 11 C5 259, 287 [the
witness's "failure to definitely identify Wilson in person and in
a photograph, indicates the procedure was not unduly suggestive"];
P v. Ware (1978) 78 CA3 822, 839 ["Shortly after the
incident she was shown a mug book of some 200 photos and
positively stated that none of the pictures was that of her
assailant."]; P v. Nash (1982) 129 CA3 513, 518
["the victim was shown but did not identify many men before she
saw appellant"] P v. Bauer (1969) 1 C3 368, 374
["Each of the witnesses rejected a number of mug shots"];
P v. Sanchez (1982) 131 CA3 718, 731 [witness
"declined to identify anyone out of a photo lineup that did
not contain a photograph of appellant"]; P v.
Spencer (1972) 22 CA3 786, 796 ["Miss Lawson did not
identify anyone in the first lineup, from which appellant was
absent"].

[86] USSC: US v.
Wade (1967) 388 US 218, 241 [it is relevant whether the
witness made "any identification prior to the lineup of another
person"]. CAL: P v. West (1984) 154 CA3 100,
105; P v. Dominick (1986) 182 CA3 1174, 1197.

[87] CAL: P v.
Clark (1992) 3 C4 41, 137 ["it is a matter of common
experience that the ability to remember a perceptive experience
diminishes over time"].

[88] NOTE:
All IDs were reliable: Showups: Neil
v. Biggers (1972) 409 US 188, 201 [seven months];
US v. Jones (8C 2008) 535 F3 886, 892 [less
than one hour]; P v. Edwards (1981) 126 CA3 447, 455
[4½ hours]; In re Carlos M. (1990) 220 CA3 372, 387 ["less
than three hours"]; P v. Gomez (1976) 63 CA3 328,
336 [1½ to two hours]; P v. Cowger (1988) 202 CA3
1066, 1072 [two hours] P v. Nash (1982) 129 CA3 513,
518 [20 hours]; P v. Martinez (1989) 207 CA3 1204,
1220 [one hour]. Photo lineups: Manson v.
Brathwaite (1977) 432 US 98, 116 [two days]; P v.
Ware (1978) 78 CA3 822, 840 [within a week]; P v.
West (1984) 154 CA3 100, 105 [9½ months]; P v.
Wells (1971) 14 CA3 348, 355 ["only 3 days"]; P v.
Blum (1973) 35 CA3 515, 519 [29 days] P v.
Arias (1996) 13 C4 92, 168-69 [ten months]; P v.
Sanchez (1982) 131 CA3 718, 731 [93 days]; P v.
Sanders (1990) 51 C3 471, 508 ["Only two days"];
Simmons v. US (1968) 390 US 377, 385 [one
day]; US v. Castro-Caicedo (1C 2014) 775 F3 93, 100 [4 ½
years]. Live lineups: P v. Kennedy (2005) 36
C4 595, 611 ["only three weeks"]; P v. Thomas (1970)
5 CA3 889, 900 [14 hours]; P v. Blair (1979) 25 C3
640, 662 [five months]; US v. Rivera (1C
2009) 555 F3 277, 284 [six months]; US v. Henderson (1C
2003) 320 F3 92, 101 [2 ½ years]; US v. Flores-Rivera (1C
1995) 56 F3 319, 331 [7 years]. ALSO SEE: P
v. Avila (2009) 46 C4 680, 699 [Re 5½-year delay:
"While this fact goes to the reliability of the identification, it
does not affect a determination whether the lineup was unduly
suggestive."].

[89] USSC: Simmons v.
US (1968) 390 US 377, 385 ["These initial identifications
were confirmed by all five witnesses in subsequent viewings"].
CAL: P v. Farham (2002) 28 C4 107, 184
["Significantly, defendant had given a detailed confession to the
police"]; P v. Anthony (1970) 7 CA3 751, 765 ["The
circumstantial evidence that defendant was the robber is
overwhelming."]; P v. Bauer (1969) 1 C3 368, 374
["substantial corroborating evidence"]; "];
In re Richard W. (1979) 91 CA3 960, 971 [the incriminating
evidence "is strong and persuasive"]; P v.
Nguyen (1994) 23 CA4 32, 39 ["we note that appellant's
fingerprint was found at the crime scene"]. OTHER:
US v. Williams (7C 2008) 522 F3 809, 812
["Three witnesses identified the same person at the lineup"].

[90] CAL: P v.
Hart (1999) 20 C4 546, 625 ["a defendant generally has no
right to refrain from participating in a lineup"]; Goodwin
v. Superior Court (2001) 90 CA4 215, 221;
P v. Huston (1989) 210 CA3 192, 216; P v.
Ellis (1966) 65 C2 529, 533.

[91] CAL: P v.
Alexander (2010) 49 C4 846, 905 ["The jury reasonably might
question why, if he were not involved in the shooting, defendant
would not want to appear in the lineup to clear his name despite
his attorney's advice."]; P v. Smith (1970) 13 CA3
897, 910; P v. Johnson (1992) 3 C4 1183, 1222;
P v. Ellis (1966) 65 C2 529.

[92] CAL: P v.
Huston (1989) 210 CA3 192, 217.

[93] EXAMPLE: The following is an
example of a refusal admonition:
You do not have a right to refuse to participate in a lineup.
But if you refuse, your decision to do so may be used in court
as proof that you are, in fact, guilty of the crime for which
you have been arrested and that you knew that any witnesses at
the lineup would positively identify you as the perpetrator.
Having these consequences in mind, do you still refuse to
participate in the lineup?

[94] CAL: P v.
Johnson (1992) 3 C4 1183, 1223, fn.9; P v.
Ellis (1966) 65 C2 529, 539.

[95] CAL: P v.
Alexander (2010) 49 C4 846, 905-906.

[96] USSC: Schmerber v.
California (1966) 384 US 757, 770-71 [Court notes that a
search warrant may authorize the use of force to obtain a blood
sample]. OTHER: In re Maguire (1C 1978) 571 F2 675,
677 ["While it may not enhance the image of justice to force a
witness kicking and screaming into a lineup, the choice has been
made by the witness, not the court."]; US v.
Pipito (7C 1987) 861 F2 1006, 1010 [court may authorize the
use of force to obtain palm prints]. ALSO SEE:
US v. Wade (1967) 388 US 218, 222 ["We have
no doubt that compelling the accused merely to exhibit his person
for observation by a prosecution witness prior to trial involves
no compulsion of the accused to give evidence having testimonial
significance."].

[97] CAL: P v.
Sequeira (1981) 126 CA3 1, 13-15; Pen. Code§ 4004.
NOTE: The order should state that, following the lineup,
the suspect is to be returned forthwith to the county in which he
was in custody. Sequeira, supra, at p. 14.

[98] CAL: Goodwin v.
Superior Court (2001) 90 CA4 215, 226 ["There is wisdom in
a procedure authorizing an ex parte order ... compelling a suspect
who is out of custody to attend a lineup ... [However] that
procedure does not currently exist in California law."].

[99] CAL: P v. Mena (2012) 54 C4
146, 164; P v. Abel (2012) 53 C4 891, 912
[motion untimely when filed one year after preliminary hearing];
Evans v. Superior Court (1974) 11 C3 617,
625; P v. Redd (2010) 48 C4 691, 725 [no
reasonable likelihood of misidentification]; P v.
Sullivan (2007) 151 CA4 524, 560 ["[Defendant]
failed to make the prima facie showing required by
Evans."]; P v. Farnam (2002) 28 C4
107, 183-84; P v. Vallez (1978) 80 CA3 46, 56
["Motions made shortly before trial will generally be denied
unless good cause is shown for the delay."].