1131 see perry v new hampshire 565 us no 108974 slip

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1131 See Perry v. New Hampshire, 565 U.S. ___, No. 10–8974, slip op. at 6–7, 15–17 (2012). 2038 AMENDMENT 14—RIGHTS GUARANTEED
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fication process that was both suggestive and unnecessary. 1132 Sec- ond, the identification procedures must have created a substantial prospect for misidentification. Determination of these elements is made by examining the “totality of the circumstances” of a case. 1133 The Court has not recognized any per se rule for excluding an eye- witness identification on due process grounds. 1134 Defendants have had difficulty meeting the Court’s standards: Only one challenge has been successful. 1135 Fair Trial. —As noted, the provisions of the Bill of Rights now applicable to the states contain basic guarantees of a fair trial— right to counsel, right to speedy and public trial, right to be free from use of unlawfully seized evidence and unlawfully obtained con- fessions, and the like. But this does not exhaust the requirements of fairness. “Due process of law requires that the proceedings shall be fair, but fairness is a relative, not an absolute concept . . . . What 1132 “Suggestive confrontations are disapproved because they increase the likeli- hood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous.” Neil v. Biggers, 409 U.S. 188, 198 (1972). An identification process can be found to be sug- gestive regardless of police intent. Perry v. New Hampshire, 565 U.S. ___, No. 10– 8974, slip op. at 2 & n.1 (2012) (circumstances of identification found to be sugges- tive but not contrived; no due process relief). The necessity of using a particular procedure depends on the circumstances. E.g. , Stovall v. Denno, 388 U.S. 293 (1967) (suspect brought handcuffed to sole witness’s hospital room where it was uncertain whether witness would survive her wounds). 1133 Neil v. Biggers, 409 U.S. 188, 196–201 (1972); Manson v. Brathwaite, 432 U.S. 98, 114–17 (1977). The factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the suspect at the time of the crime, the witness’s degree of attention, the accuracy of the witness’s prior description of the suspect, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confronta- tion. See also Stovall v. Denno, 388 U.S. 293 (1967). 1134 The Court eschewed a per se exclusionary rule in due process cases at least as early as Stovall . 388 U.S. 293, 302 (1967). In Manson v. Brathwaite, the Court evaluated application of a per se rule versus the more flexible, ad hoc “totality of the circumstances” rule, and found the latter to be preferable in the interests of deterrence and the administration of justice. 432 U.S. 98, 111–14 (1977). The rule in due process cases differs from the per se exclusionary rule adopted in the Wade - Gilbert line of cases on denial of the right to counsel under the Sixth Amendment in post-indictment lineups. Cases refining the Wade - Gilbert holdings include Kirby v.
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