394 U.S. 440 (1969), 47, Foster v. California

Docket Nº:No. 47
Citation:394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402
Party Name:Foster v. California
Case Date:April 01, 1969
Court:United States Supreme Court

Page 440

394 U.S. 440 (1969)

89 S.Ct. 1127, 22 L.Ed.2d 402




No. 47

United States Supreme Court

April 1, 1969

Argued November 19, 1968




Petitioner was convicted of robbery of a Western Union office. The office manager viewed a police station lineup of three men, petitioner (who is almost six feet tall and who was wearing a leather jacket similar to one worn by the robber) and two much shorter men. The manager could not positively identify petitioner as the robber, and asked for and was given a chance to speak to him. Petitioner was brought into an office alone and seated across from the manager at a table. The manager was still uncertain. About a week later, he viewed another lineup, of petitioner and four different men. This time the manager was "convinced" petitioner was the robber. He testified to the lineup identifications at the trial and repeated his identification in the courtroom.


1. Although the rule that an accused must be given the opportunity to be represented by counsel at a lineup does not apply to lineups conducted prior to June 12, 1967, Stovall v. Denno, 388 U.S. 293, the conduct of identification procedures must not be "so unnecessarily suggestive and conducive to irreparable mistaken identification" as to be a denial of due process of law. Id. at 302. P.442.

2. The suggestive elements in the repeated confrontations the police arranged between the manager and petitioner so undermined the reliability of the eyewitness identification as to violate due process. Pp. 442-443.

3. The question of whether the error was harmless under Chapman v. California, 386 U.S. 18, should be determined in the first instance by the California courts. P. 444.

Reversed and remanded.

Page 441

FORTAS, J., lead opinion

MR. JUSTICE FORTAS delivered the opinion of the Court.

Petitioner was charged by information with the armed robbery of a Western Union office in violation of California Penal Code § 211a. The day after the robbery, one of the robbers, Clay, surrendered to the police and implicated Foster and Grice. Allegedly, Foster and Clay had entered the office while Grice waited in a car. Foster and Grice were tried together. Grice was acquitted. Foster was convicted. The California District Court of Appeal affirmed the conviction; the State Supreme Court denied review. We granted certiorari, limited to the question whether the conduct of the police lineup resulted in a violation of petitioner's constitutional rights. 390 U.S. 994 (1968).

[89 S.Ct. 1128] Except for the robbers themselves, the only witness to the crime was Joseph David, the late-night manager of the Western Union office. After Foster had been arrested, David was called to the police station to view a lineup. There were three men in the lineup. One was petitioner. He is a tall man -- close to six feet in height. The other two men were short -- five feet, five or six inches. Petitioner wore a leather jacket which David said was similar to the one he had seen underneath the coveralls worn by the robber. After seeing this lineup, David could not positively identify petitioner as the robber. He "thought" he was the man, but he was not sure. David then asked to speak to petitioner, and petitioner was brought into an office and sat across from David at a table. Except for prosecuting officials there was no one else in the room. Even after this one-to-one confrontation, David still was uncertain whether petitioner was one of the robbers: "truthfully -- I was not sure," he testified at trial. A week or 10 days later, the police arranged for David to view a second lineup. There were five men in that lineup. Petitioner was the only person in the second lineup who had

Page 442

appeared in the first lineup. This time David was "convinced" petitioner was the man.

At trial, David testified to his identification of petitioner in the lineups, as summarized above. He also repeated his identification of petitioner in the courtroom. The only other evidence against petitioner which concerned the particular robbery with which he was charged was the testimony of the alleged accomplice Clay.1

In United States v. Wade, 388 U.S. 218 (1967), and Gilbert v. California, 388 U.S. 263 (1967), this Court held that, because of the possibility of unfairness to the accused in the way a lineup is conducted, a lineup is a "critical stage" in the prosecution, at which the accused must be given the opportunity to be represented by counsel. That holding does not, however, apply to petitioner's case, for the lineups in which he appeared occurred before June 12, 1967. Stovall v. Denno, 388 U.S. 293 (1967). But in declaring the rule of Wade and Gilbert to be applicable only to lineups conducted after those cases were decided, we recognized that, Judged by the "totality of the circumstances," the conduct of identification procedures may be "so unnecessarily suggestive and conducive to irreparable mistaken identification" as to be a denial of due process of law. Id. at 302. See Simmons v. United States, 390 U.S. 377, 383 (1968); cf. P. Wall, Eye-Witness Identification in Criminal Cases; J. Frank & B. Frank, Not Guilty; 3 J. Wigmore, Evidence § 786a (3d ed.1940); 4, id. § 1130.

Judged by that standard, this case presents a compelling example of unfair lineup procedures.2 In the

Page 443

first lineup arranged by the police, petitioner stood out from the other two men by the contrast of his height and by the fact that he was wearing a leather jacket similar to that worn by the robber. See United States v. Wade, supra, at 233. When this did not lead to positive identification, the police permitted a one-to-one confrontation between petitioner and the witness. This Court pointed out in Stovall that

[t]he practice of showing suspects singly to [89 S.Ct. 1129] persons for the purpose of identification, and not as part of a lineup, has been widely condemned.

388 U.S. at 302. Even after this, the witness' identification of petitioner was tentative. So, some days later, another lineup was arranged. Petitioner was the only person in this lineup who had also participated in the first lineup. See Wall, supra, at 64. This finally produced a definite identification.

The suggestive elements in this identification procedure made it all but inevitable that David would identify petitioner whether or not he was, in fact, "the man." In effect, the police repeatedly said to the witness, "This is the man." See Biggers v. Tennessee, 390 U.S. 404, 407 (dissenting opinion). This procedure so undermined the reliability of the eyewitness identification as to violate due process.

In a decision handed down since the Supreme Court of California declined to consider petitioner's case, it reversed a conviction because of the unfair makeup of a lineup. In that case, the California court said:

[W]e do no more than recognize . . . that unfairly constituted lineups have in the past too often brought about the conviction of the innocent.

People v. Caruso, 68 Cal.2d 183, 188, 436 P.2d 336, 340 (1968). In the present case, the pretrial confrontations clearly were so arranged as to make the resulting identifications virtually inevitable.

Page 444

The respondent invites us to hold that any error was harmless under Chapman v. California, 386 U.S. 18 (1967). We decline to rule upon this question in the first instance. Accordingly, the judgment is reversed and the case remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

MR. JUSTICE WHITE, with whom MR. JUSTICE HARLAN and MR. JUSTICE STEWART concur, being unwilling in this case to disagree with the jury on the weight of the evidence, would affirm the judgment.

BLACK, J., dissenting

MR. JUSTICE BLACK, dissenting.

The Court here directs the California courts to set aside petitioner Foster's conviction for armed robbery of the Western Union Telegraph Co. at Fresno, California. The night manager of the telegraph company testified before the court and jury that two men came into the office just after midnight, January 25, 1966, wrote a note telling him it was a holdup, put it under his face, and demanded money, flashed guns, took $531 and fled. The night manager identified Foster in the courtroom as one of the men, and he also related his identification of Foster in a lineup a week or so after the crime. The manager's evidence, which no witness disputed, was corroborated by the testimony of a man named Clay, who was Foster's accomplice in the robbery and who testified for the State. The testimony of these two eyewitnesses was also corroborated by proof that Foster and another person had committed a prior armed robbery of a Western Union office in another city six years before, when they appeared at the company's office, presented a note to an employee announcing their holdup, flashed a gun, and fled with company money. In this case, Foster's attorney admitted conviction

Page 445

for the prior Western Union armed robbery.1 The circumstances of the two robberies appear to have been practically indistinguishable. Such evidence that a particular person committed a prior crime has been almost universally accepted [89 S.Ct. 1130] as relevant and admissible to prove that the same person was responsible for a later crime of the same nature.2 A narration of these facts, falling from the lips of eyewitnesses, and not denied by other eyewitnesses, would be enough, I am convinced, to persuade nearly all lawyers and judges, unhesitatingly to say,

There was clearly enough evidence of guilt here for a jury to convict the defendant, since, according to practice, and indeed constitutional command, the weight of evidence is for a jury, and not for judges.

Nevertheless the Court in this case looks behind the evidence given by witnesses on the stand and decides that, because of...

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