Was the show-up suggestive? Was the show-up necessary? Was the show-up evidence admissible?

Question

Anderson and a female companion, Engstrom, broke into a house at night occupied by Raymond Ward and his girlfriend, N.B. At gunpoint, Anderson forced Ward and N.B. into a bedroom, ordered N.B. to lie on the floor, placed the gun against Ward's head, and demanded money. When Ward hesitated, Anderson shot him in the neck. Ward then surrendered all of his available money (some $ 140 in cash). When police were called, N.B. described the robber as a black man with a shaved head, and although she observed the robber face to face, she did not indicate how well and for how long. N.B. did not provide additional details of the male robber's description, although she provided details concerning his female accomplice. N.B. hid in the corner of the bedroom until the assailant left the house. Anderson and Engstrom were arrested after a police chase. The police brought N.B. to the scene of the traffic stop to see if she could identify them. During the show-up N.B. was not able to get a good view of Anderson's facial features because he would not stand up straight. He insisted on bending over from the waist, so that his face was pointed toward the ground. Anderson, a black male, was in handcuffs, flanked by two uniformed police officers. Despite Anderson's posture, N.B. positively identified him as the male robber because of his shaved head and clothing.
What will be an ideal response?

Answer 1

Yes, No, Yes.

The fact that Anderson was handcuffed and flanked by police officers during the show-up tended to suggest his guilt—it was suggestive. The show-up was not necessary. There was sufficient evidence against Anderson at the time of his arrest to hold him. No circumstances, such as the possibility that the only witness might die, required an immediate and suggestive show up. A live or photographic line up could have been held within less than a day. Nevertheless, the show-up evidence was admitted into evidence. In Stovall v. Denno (1967) the Supreme Court held that due process is violated when an initial identification procedure is unnecessarily or impermissibly suggestive. This was a two-part rule: first, was the show-up suggestive, and second, was there some good reason for the authorities' failure to resort to less suggestive procedures. In Stovall the only witness to the crime was in critical condition and may have died before a less suggestive identification procedure could be held (the suspect was brought into her hospital room). Under Stovall, the show-up in this case would not have been admissible. The Supreme Court's later decision of Manson v. Brathwaite (1977), ultimately rejected a rule of per se suppression in favor of the "totality of circumstances" approach. In Stovall the "totality of circumstances" referred to factors concerning the suggestiveness and necessity of a show-up. But in Brathwaite, the Court used this phrase to refer to the factors that might negate or mitigate the presumed suggestiveness of an unnecessary show-up: the witness's opportunity to view the perpetrator during the crime, the witness's degree of attention, the accuracy of any prior description given by the witness, the witness's level of certainty when making the identification at the show-up, and the length of time between the crime and the show-up. After finding that Alaska precedent comported with the federal cases, the Court of Appeals concluded that the "show-up in Anderson's case was no more suggestive than a typical show-up. We further note that, even though Anderson and Engstrom were displayed to N.B. in virtually identical ways, N.B. positively identified Anderson but told the police that she could not identify Engstrom. This fact supports the judicial consensus that a typical show-up is not so suggestive as to violate the guarantee of due process of law—not so suggestive that we should conclude, as a matter of law, that a resulting identification is the product of suggestion rather than memory."