205 N.W.2d 461

Supreme Court of Michigan.

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.

Franklin ANDERSON, a/d/a Frederick Anderson, Defendant-Appellant.

No. 4. March 27, 1973.

Defendant was convicted in the Midland County Circuit Court, James R. Rood, J., of assault with intent to commit murder, and he appealed. The Court of Appeals, 29 Mich.App. 578, 185 N.W.2d 624, affirmed, and defendant appealed. The Supreme Court, Williams, J., held that where there is a legitimate reason to use photographs for identification of an in-custody accused, he has right to counsel as much as he would for corporeal identification procedures. The Court further held that in absence of claim that victim was in so serious a condition when second photo identification took place in absence of counsel that there was still a need for swift action, and in view of fact there was plenty of time to arrange either for defendant’s counsel or substitute counsel to be present or to secure an ‘intelligent waiver,‘ defendant was denied his right to counsel with respect to second photo identification. The Court further held that in light of evidence of victim’s knowledge before highly suggestive photo showups took place, and in light of victim’s previous acquaintance with defendant, victim’s incourt identification was accurate in spite of employment of grossly suggestive procedures calculated, albeit unintentionally, to prompt identification of whatever Indian was pictured.

Affirmed.

Brennan, J., concurred and filed opinion.

Attorneys and Law Firms

*159 **462 Edward G. Durance, *160 Pros. Atty., Robert G. Fraser, Chief Asst. Pros. Atty., Midland, for plaintiff-appellee.

Sinclair, Edwards & Clulo by Herbert H. Edwards, Midland, for defendant-appellant.

Before the Entire Bench.

Opinion

WILLIAMS, Justice (for affirmance).

This is a very complicated case. A woman was brutally raped and murder attempted. After the woman was found in critical condition she was questioned at the hospital by various persons as to the identity of her assailant. Based on that information, a suspect was arrested and a polaroid shot taken of him. This polaroid along with a number of ‘mug shots’ was under various times and circumstances shown to the victim. In each case she identified the defendant.

The heart of the prosecution’s case was identification of the defendant by the victim. At trial defendant objected to identification being made by the victim on the basis of United States v. Wade and successor cases1 because of the character of the photo showup and because there had been no lawyer present at the photo showups. The issue in the case therefore is what the requirements of Wade and successor cases are and whether they were satisfied by the facts in this case.

This opinion will review I. The Detailed Facts, II. The Wade Rules, III. The Psychological Basis for Wade, IV. The Application of Wade to Photographic Identification Procedures in Michigan, V. Application of Rules to the Facts of this Case, VI. Minor Issues, Conclusion.

*161 **463 I-DETAILED FACTS2

IDENTIFICATION ISSUES

This crime involves a savage assault on a bar waitress with intent to commit murder. The victim had seen the defendant four or five times at the bar where she worked. On the night of the assault, the victim had seen but was not with the defendant in the bar. The accused left the bar prior to the ‘last call.’ The victim left with a Mr. Whitman after closing and had ‘coffee’ with him at her home until 3:30 when she left to see another male friend. Mr. Whitman said he saw a red car with fins and no headlights containing only the driver execute a U-turn and then follow the victim.

En route, the victim testified she stopped or was stopped. Thereafter she was personally struck, driven away in a red car with fins, and later assaulted. People’s proofs included evidence of the victim’s fingerprints on defendant’s car, blood of her type on the car’s seat and matching paint smears in damaged areas on the victim’s and defendant’s cars. There was also testimony placing the defendant and his car at a gas station near the victim’s home just after 2:00 a.m.

PRE-SURGERY

When found injured in a field the following morning, an ambulance was called and the ambulance driver, while preparing the victim for transport to the hospital, asked whether she had been in an accident and the victim responded ‘uh uh’ (no); whether she had been beaten-‘uh huh’ (yes); whether she had been raped-‘uh huh’ (yes) (page 78a). The victim was taken to Midland Hospital.

*162 Deputy Sheriff Gransden had been at the scene and followed the ambulance back to the hospital and was in the emergency room while the victim was being examined before surgery. He questioned her and her responses were by nodding her head ‘yes’ or ‘no’ and by writing on the back of a surgical glove envelope. She nodded ‘no’ when asked if she knew assailant’s name. She wrote her name on a pad. Asked again about the assailant she wrote ‘he comes in where I work. Aladdin Bar Bay City’ (page 120a). The victim was taken to X-ray before surgery.

Present in the X-ray room were a nurse and the ambulance driver. The ambulance driver questioned the victim about her assailant further and her responses were by nodding her head ‘yes’ or ‘no.’ He asked whether he were white-‘no’; colored-‘no’; Mexican-‘no’; Indian?-here she responded by voice and had to say the word several times before the ambulance driver and the nurse present both understood. The word was ‘Indian’ (pp 82a-86a):

‘It was a positive, she said Indian and she was very affirmative about the negatives (referring to white, colored, etc.) if you understand what I mean. She shook her head as best she could when I asked the questions.’ (page 87a).

The ambulance driver continued to ask whether the assailant had brown hair?-‘ no’; black hair?-‘yes’; whether they had been friends?-‘no’ (p. 87a).

POST SURGERY MEETING 8:15 P.M.

The victim was taken to surgery sometime after the questioning in the X-ray room and there was no further communication with her until 8:15 that evening after surgery in her hospital room. Present *163 for the questioning were Deputy Sheriff Gransden, Sheriff’s Matron Theisen, the prosecutor and a nurse. The victim was unable to talk but could nod her head and give gestures with her hands (p. 60a). Matron Theisen was there to take notes and later testified **464 as to the questioning (p. 133a and following). Deputy Sheriff Gransden went through a series of names picked at random (including defendant’s name) to see if she could pick out any certain name. (Frederick, James, Jim-p. 62a and 141a) She was also asked ‘Anderson’ but the record is unclear as to her response to that. When the name ‘Frank’ was mentioned there was a definite response and she waved her hands around (pp. 140a-141a). Asked if she saw the car she nodded ‘yes.’ Asked whether attacked in her car she shook her head no. Asked whether it was a pickup truck she shook her head no. She nodded yes when asked if it was a car. Deputy Gransden then went through four colors of cars, blue, black, white, red. She nodded yes to red (p. 141a). Deputy Gransden went through the different makes of cars and when he mentioned ‘Dodge’ she indicated yes (p. 62a). Apparently by the same process it was established that the assailant was in the neighborhood of six feet, somewhere around 200 pounds and an Indian. Asked whether she could identify the person who attacked her she nodded her head ‘yes’ (p. 140a). There were no pictures shown to the victim at this 8:15 meeting.

POST SURGERY MEETING 11 P.M.-FIRST PHOTO LINEUP

The defendant was arrested at about 9:30 p.m. and between 10 and 10:30 a black-and-white polaroid photograph was taken of him by a Bay City officer. Deputy Gransden drove to Bay City, picked up the picture and returned to Midland, having *164 called ahead to have Matron Theisen select other pictures from the files for a photo show-up (p. 143a). Deputy Gransden and Matron Theisen returned to the victim’s hospital room at 11:00 p.m. with six pictures, including the polaroid of defendant.

Defendant’s picture was a polaroid shot with perforated edges and depicted a single head-on view. The other five pictures were standard ‘mug shots’ depicting front and side views. Each picture had prison numbers superimposed over the front view and an arrest card was attached to each picture except that of the defendant. Before being shown the pictures, the victim was told there was a suspect and his picture was included in those she would be shown (p. 144a). The pictures were shown to the victim individually with defendant’s picture shown last. The victim identified defendant as her assailant.

DAY AFTER SURGERY-SECOND PHOTO-LINEUP

On the following day, the prosecutor conducted a ‘lineup’ with the same pictures shown individually in the same sequence. The victim again selected defendant’s photograph as pictorial identification of her assailant.

THREE DAYS PRIOR TO PRELIMINARY EXAM-THIRD PHOTO-LINEUP

Three days prior to the preliminary examination a third photo lineup was conducted by Officer Whipple for the purported reason of making a ‘positive identification’ (p. 131a). On this occasion the photos were given to her in folders.

Counsel had been appointed after the second *165 lineup but the third lineup was accomplished without notice to counsel. On this occasion there were twelve pictures shown her, all except that of defendant being front and side views while that of defendant was the same polaroid photograph shown earlier. Each photograph, including that of defendant, had paper covering the place where prison identification numbers could have been seen. On this occasion the victim again **465 identified Anderson (p. 106a). Officer Whipple said the reason he made folders as described was that it would have been ‘suggestive’ otherwise (p. 508a).

TRIAL

Timely and continuous objections by defendant’s counsel to the victim’s in-court identification were made at the preliminary examination, pretrial motions and by oral trial objections. On the motion to suppress there was testimony by Dr. Russell Leach, a psychiatrist. A hypothetical question (pp. 149a-200a) recited the facts up to and until the first photo show but excluded the fact that the victim had previously seen defendant in the bar numerous times. The doctor testified that it was ‘highly probable’ that the first identification was suggestive; that as to the second identification it was ‘possible that it would be highly probable’ to be suggestive. As to the in-court identification, however, the testimony is less clear:

‘Q. And, some twenty days later, an in-court identification of the man as the man who had, in fact, attacked her, a man who she had seen time and again, a face she would never forget, would you say that this in-court identification was the product of suggestion?

‘A. I don’t believe I can say so, under those conditions; as that is twenty-three days later. I don’t think I could apply suggestion.’ (p. 207a)

*166 SECURITY PRECAUTIONS ISSUE

During testimony as to matching paint smears on the victim’s and defendant’s autos, the jury and the court moved to the courthouse parking lot where both cars were. To assure defendant’s presence without creating prejudice the trial judge ordered the defendant be taken down to the parking lot before the jury came out, his handcuffs removed, and that he be put in a car with the window down. Apparently the jury came to the courthouse parking lot too soon, and, rather than make a display of removing the handcuffs, the officer placed the defendant in the rear seat of the automobile with his arms handcuffed behind his back.

HOSPITAL PHOTOS ISSUE

Over objection of defendant four photos taken by the hospital for teaching purposes were introduced in evidence depicting the victim on the operating table. There had previously been oral testimony as to victim’s condition.

Defendant claimed the only issue in the case was identification of the assailant and the photos were immaterial. On oral argument the People admit that the only purpose for using the photos was to show the victim’s condition in order to establish that she would have died without treatment. They contend, however, that the trial judge did not abuse his discretion in admitting the pictures.

Defendant was found guilty by the jury and sentenced to life. The Court of Appeals affirmed, People v. Anderson, 29 Mich.App. 578 (185 N.W.2d 624) (1971). We granted leave, 384 Mich. 838 (1971), primarily to *167 consider the issues relating to eyewitness identification.

II. THE WADE RULES

In United State v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the United States Supreme Court in a ‘post-indictment’ case held that, because of the established dangers of irreparable misidentification coupled with the inability to accurately reconstruct what happens at corporeal lineups, an accused in a federal prosecution is entitled to counsel at a pretrial lineup in order to protect his right to meaningfully cross-examine the identifying witness at trial. Unless and until there is **466 appropriate legislation or executive action, where a lineup is held without counsel, any subsequent in-court identification must be preceded by an evidentiary hearing out of the presence of the jury at which the prosecution must show by clear and convincing evidence that the in-court identification has a basis independent of the illegal line-up.

In Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), in a ‘post-indictment’ case the Court, applying Wade to a state prosecution, held as above regarding in-court identifications and held further that there the corporeal lineup was had without counsel, any direct evidence relating to the prior, pretrial lineup identification is Per se inadmissible. Thus, Wade, which only required a foundation for admissibility of identification evidence, was extended to a separate class of ‘hearsay’ evidence to provide a Per se exclusionary rule Regardless of adequate foundation. If evidence has been improperly admitted in violation of constitutional rights, a conviction must be reversed unless it is determined beyond a reasonable *168 doubt that such evidence did not affect the verdict.3

In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), the Court held in a ‘pre-indictment’ case that although Wade was not to be retroactive in its application, there was an independent ground of constitutional attack where the procedures used are so unnecessarily suggestive and conducive to irreparable mistaken identification that it amounts to a denial of due process.

In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the principles of Stovall were applied to the identification by photograph of an unapprehended suspect. The Court noted that the right to counsel was not raised but recognized the dangers in photographic identification. Because of the widespread and effective use of initial identification by photograph from the standpoint of apprehending offenders and avoiding needless arrests of innocent suspects, however, the Court was unwilling to Prohibit altogether the Initial identification of unapprehended suspects by photograph but would subject all such permissible photographic identification to the Stovall standard of due process. Consequently, the Court said that convictions based on eyewitness identification at trial following initial identification by photograph would be set aside on that ground only if the procedures used were so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

These cases develop the following pretrial identification rules:

1. Defendant is entitled to counsel at pretrial identification procedures (Wade).

*169 2. Unnecessarily suggestive and conducive to irreparable misidentification procedures deny due process (Stovall).

3. If there was no counsel at the pretrial identification or if the procedures were unnecessarily suggestive or conducive to irreparable misidentification, then before an In-court identification may be received in evidence, the trial court must hold an evidentiary hearing out of the presence of the jury at which the People must show by clear and convincing evidence that the in-court identification had a basis independent of the prior identification procedure (Wade).4

**467 4. Direct testimonial evidence relating to the pretrial out-of-court identification is Per se excluded (Gilbert).5

5. On appeal, if the court finds that the evidence was erroneously admitted under the above standards, the court must reverse the conviction and order a new trial unless it is able to declare beyond a reasonable doubt that the in-court identification did not affect the verdict.6

6. If the record is not complete and a determination either way cannot be made, the court should vacate the conviction and remand to the trial court for a hearing on the issue.7

In passing it should be said that the Per se exclusionary rule of Gilbert (#4 above) is not here at issue, because no direct testimony was introduced *170 by the People in Anderson as to the pretrial out-of-court photographic identification of the defendant. As the statement of facts shows, however, all of the information did come in on cross-examination by defendant.8

Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972) modifies only part of the Per se exclusionary rule of Gilbert. In a Plurality opinion the Per se exclusionary rule was held not to apply to testimony concerning ‘pre-indictment’ out-of-court corporeal identification procedures. Since there is no agreement by a majority of the United States Supreme Court regarding the limitation of right to counsel in Kirby, we are not permitted to follow Kirby as authoritative precedent on the question of counsel. The clear rule in Michigan is that a majority of the Court must agree on a ground for decision in order to make that binding precedent for future cases. If there is merely a majority for a particular result, then the parties to the case are bound by the judgment but the case is not authority beyond the immediate parties. See Hileman v. Indreica, 385 Mich. 1, 7, fn 1, 187 N.W.2d 411 (1971); In re Curzenski Estate, 384 Mich. 334, 335, fn 1, 183 N.W.2d 220 (1971); Breckon v. Franklin Fuel Co., 383 Mich. 251, 278-279, 174 N.W.2d 836 (1970); Kalamazoo v. Crawford, 154 Mich. 58, 60, 117 N.W. 572 (1908); Corporation & Securities Commission v. McLouth Steel Corp., 7 Mich.App. 410, 412, 151 N.W.2d 905 (1967); Corporation & Securities Commission v. American Motors Corp., 4 Mich.App. 65, 67, 143 N.W.2d 767 (1966); 7 M.L.P., Courts ss 51-53 and cases cited.

The same rules of decision govern the permissible construction by states of decisions of the United States Supreme Court. In *171 United States v. Pink, 315 U.S. 203, 216, 62 S.Ct. 552, 558, 86 L.Ed. 796 (1942) the rule is well summarized as follows:

‘. . . (T)he lack of an agreement by a majority of the Court on the principles of law involved prevents it (a case claimed to be determinative of Pink) from being an authoritative determination for other cases. . . .’9

Applying these well-settled constructional mandates to Kirby we see that a majority of the Court agreed on a result only, that the Per se exclusionary rule of Gilbert did not apply to the case before them. There was no ‘opinion of the Court,‘ but the ‘judgment’ of the Court was to affirm the Illinois Court of Appeals. The most **468 liberal construction of these rules might suggest that the Kirby case ‘holds’ that the Per se exclusionary rule of Gilbert does not apply in ‘pre-indictment’ cases.10 Constitutional rules of construction do not permit us to read Kirby as abrogating the pre-indictment requirements for counsel and the other rules of Wade, Gilbert, Stovall and Simmons, by all of which we are still bound.

This Court and the Court of Appeals have both consistently applied the Wade requirements to ‘pre-indictment’ corporeal identification procedures. See People v. Schumacher, 29 Mich.App. 594, 185 N.W.2d 633 (1971), rev’d, 384 Mich. 831, 186 N.W.2d 562 (1971); *172 People v. Ranes, 385 Mich. 234, 242, 188 N.W.2d 568 (1971); People v. Hutton, 21 Mich.App. 312, 320 ff, 175 N.W.2d 860 (1970).

III.-PSYCHOLOGICAL PRINCIPLES

The psycho-legal fundamentals in this case derive from the tension between four factors involved in eyewitness identification in criminal cases. The four factors are:

1. The natural and usually necessary reliance on eyewitness identification of defendants by the police and prosecution;

2. The scientifically and judicially recognized fact that there are serious limitations on the reliability of eyewitness identification of defendants;

3. The scientifically and judicially recognized fact that frequently employed police and prosecution procedures often (and frequently unintentionally) mislead eyewitnesses into misidentification of the defendant;

4. The historical and legal fact that a significant number of innocent people have been convicted of crimes they did not commit and the real criminal was left at large.

The first factor, the reliance on eyewitness identification of defendants by the police and prosecution, is too well understood to require review or comment. Since the United States Supreme Court has specifically recognized each of the other factors, this Court can reasonably take judicial notice of them.11

However, these four factors and the United States Supreme Court discussions based on them *173 have such widespread and deep-rooted impact on everyday police work, prosecution and criminal procedure rules that this opinion must briefly consider the scientific and historical data behind the last three factors in order to promote the fullest understanding and acceptance of the resulting rules of law.

For the purpose of our decision, rather than unduly extend this opinion with elaborate examination and documentation of the scientific support for the limitations on the reliability of eyewitness identification and the significant legal record of proven misidentification, we will discuss the matter **469 only briefly. If, however, anyone has questions about these propositions or wants to study the scientific and historical background of these propositions further, the results of our research, particularly the extensive references and bibliography, are annexed to this opinion as Appendix A.

The second factor, the scientific fact that there are serious limitations on the reliability of eyewitness identification of defendants, was specifically recognized by the United States Supreme Court when it said:

‘. . . The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification . . .’ Wade, 228, 87 S.Ct. 1933.

The conclusions of Wade rested on writings that depend either upon scientific analysis or the earlier works of scientists in the field which demonstrate the serious limitations of eyewitness identifications by the results of experiments. These results may at first blush be surprising but on just a little reflection make sense and fall right into line with everyday experience. Here follows a description of just one of many actual experiments and *174 the startling results which indicate that identification of individuals-however earnest-is often unreliable.

This experiment was conducted at Dartmouth College and was designed to evaluate the impact of even slight suggestibility in a ‘lineup’ identification upon witnesses who were relatively sophisticated in nuances of psychology, Brown, An Experience in Identification Testimony, 25 Jour.Crim.L. & Criminology 621 (1935).

By pre-arrangement and without warning, a workman entered a classroom in session, walked across it, paused in front of the instructor’s desk, tinkered with the radiator, made an inquiry about the heat and finally left unobtrusively. The incident was treated casually by the instructor and none of the students were forewarned of the experiment.

After a lapse of two weeks, the workman was again brought into the class with five other workmen of the same general dress and appearance. ‘Lineups’ were then conducted separately before four different groups of students who were asked to indicate their selection of the workman they had previously seen as well as their degree of confidence in this judgment.

1) The first group consisted of 30 persons studying legal psychology who were familiar with surprise psychological tests of this nature (many of them suspected a test when the man first walked in). Of this group 23 or 76.6% Correctly identified the workman, 3 were unable to identify, 1 thought it was a hoax, 2 identified the wrong man, and 1 would have been willing to swear in court that the man was not in the lineup. One of the 2 who made the wrong identification also expressed his willingness to swear in court that his identification was correct.

*175 2) The second group consisted of 64 students with no experience in ‘surprise’ tests but some did suspect a test when the man first walked in. Of these, 42 or 65.6% Made correct identifications but 11 or 17.1% Were unable to make a correct identification.

3) The third group consisted of 16 random students. The questionnaire upon which they were to indicate their identification was worded to provide the slightest suggestion that the correct man was probably in the lineup (e.g., ‘which of the men . . .‘ rather than ‘are any of these men . . .’). Only Five men were shown to these students and the man who had actually entered the classroom was excluded from the lineup.

The amazing result is that 62.5% Positively identified the wrong man. Two persons were too unsure to make an identification and only 4 correctly stated that the original man was not in the lineup.

**470 4) The fourth group of 17 students had not witnessed the original incident at all. While 12 correctly stated that they did not remember the incident, the remaining 29.4% ‘recalled’ an incident that they had never witnessed and attempted to identify one of the men.12

*176 Actual legal cases support the same conclusion. For example, in one Massachusetts case 12 witnesses identified the wrong man as the culprit. See P. Wall, Eye-Witness Identification in Criminal Cases 12 (1965, 2nd printing 1971). The author references other examples of erroneous identification by 13, 14, and 17 witnesses noting that ‘. . . these are by no means the most extreme examples . . .’ Id.

The classic British case of Adolph Beck resulted in a British Government Committee impaneled by royal command to present a report to Parliament. As the result of a complaint to the police by a prostitute that Beck was the man that had defrauded her, Adolph Beck was convicted and incarcerated. No sooner did he leave prison on the first charge than he was ‘fingered,‘ convicted and imprisoned again in a similar incident. Years later the real culprit confessed after committing many more crimes. The British Government Committee in their report to Parliament reached the following conclusion:

‘. . . Evidence as to the identity based on personal impressions, however Bona fide, is perhaps of all classes of evidence the least to be relied upon, and therefore, unless supported by other facts, an unsafe basis for the verdict of a jury.’13

Despite the reputation the British have for no- *177 nonsense handling of criminal cases, British law is so concerned with the fallibility of eyewitness identification and the possibility of unfounded accusations in rape cases that corroborating evidence is required by statute and case law in some cases. Even where it is not required, the courts insist upon instructions to the jury **471 of the great dangers of such identifications, even if the complainant’s evidence is clear and convincing.14

Pre-lineup display of photographs in any case is so distrusted in England that it has long been grounds for quashing the conviction. See Rex v. Haslom, 19 Crim.App.Rep. 59, 60; 134 LT Rep. 158 (1925).

The third factor, the scientific fact that frequently employed police and prosecution procedures often mislead eyewitnesses into misidentification of defendants, was clearly recognized by Justice Brennan speaking for the United States Supreme Court when he wrote:

‘. . . A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification. A commentator has observed that ‘(t)he influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor-perhaps it is responsible for more such errors than all other factors combined.’ Wall, Eye-Witness Identification in Criminal Cases 26 . . .’ Wade, 388 U.S. 228-229, 87 S.Ct. 1933.

*178 Improper suggestion commonly comes about because of three things. First, the witness when called by the police or prosecution either is told or believes that the police have apprehended the right person. Second, if the witness is shown only one person or a group in which one person is singled out in some way, he is tempted to presume that he is the person. Third, as the second factor just discussed above shows, eyewitness identification has inherent weaknesses from the standpoint of the witness’s problems of sensation, retention, etc., and the similarity in appearance of people.

The fourth factor, the historical and legal fact that all too many innocent people have been convicted of crimes they did not commit and the real criminal who committed the crime was consequently protected and left at large, was recognized by the United States Supreme Court in the quotation we set forth above but repeat here with the emphasis on the last clause:

‘. . . The vagaries of eye witness identification are well-known; the Annals of criminal law are rife with instances of mistaken identification.’ Wade, 228, 87 S.Ct. 1933. (Emphasis added.)15

In Borchard, Convicting the Innocent (1932), the author discusses some 50 of the best known cases of mistaken convictions. In the introduction the author singles out erroneous eyewitness identification as the one greatest source of error:

‘Perhaps the major source of these tragic errors is an identification of the accused by the victim of a crime of violence. This mistake was practically alone responsible *179 for twenty-nine of these convictions. Juries seem disposed more readily to credit the veracity and reliability of the victims of an outrage than any amount of contrary evidence by or on behalf of the accused, whether by way of alibi, character witnesses, or other **472 testimony. These cases illustrate the fact that the emotional balance of the victim or eyewitness is so disturbed by his extraordinary experience that his powers of perception become distorted and his identification is frequently most untrustworthy . . . How valueless are these identifications by the victim of a crime is indicated by the fact that in eight of these cases the wrongfully accused person and the really guilty criminal bore not the slightest resemblance to each other, whereas in twelve other cases, the resemblance, while fair, was still not at all close. In only two cases can the resemblance be called striking.’ Id, xiii. (Footnotes omitted, emphasis added.)

A number of other authors have collected cases where there have been convictions based on mistaken eyewitness identification. See, e.g., Du Cann, Miscarriages of Justice (1960); Frank & Frank, Not Guilty (1957); Gardner, The Court of Last Resort (1952); Hale, Hanged in Error (Penguin ed. 1961); Ram, A Treatise on Facts as Subjects of Inquiry by a Jury (4th Amer ed 1890); Rolph, Personal Identity (1957); Wall, Eye-Witness Identification in Criminal Cases (1965); Watson, The Trial of Adolph Beck (1924); Wigmore, The Science of Judicial Proof s 254 (3d ed 1937); Wilder and Wentworth, Personal Identification (1918); Williams, The Proof of Guilt (3d ed 1963).

For a number of obvious reasons, however, including the fact that there is no on-going systematic study of the problem, the reported cases of misidentification are in every likelihood only the top of the iceberg. The writer of this opinion, for example, was able to turn up three very recent unreported cases right here in Michigan in the *180 course of a few hours’ inquiry. (See the cases of Charles Clark, Lewis Nasir, and Charles Edward Richardson in Appendix A.)

The excerpted material above is intended only to suggest a flavor of the consistent findings by researchers. Briefly, we find that there are serious problems concerning the accuracy of eyewitness identification and that real prospects for error inhere in the very process of identification completely independent of the subjective accuracy, completeness or good faith of witnesses. For almost 100 years these problems have occupied the energy of some very astute judges, prosecutors and scholars who have consistently identified the problems. We cannot blink at the evidence of the problem and must make a forthright effort to insure that evidence of eyewitness

IDENTIFICATION IS AS RELIABLE AS POSSIBLE. IV. THE APPLICATION OF WADE TO PHOTOGRAPHIC IDENTIFICATION PROCEDURES IN MICHIGAN

This Court has not heretofore ruled on the right to counsel at post-apprehension photographic show-ups. People v. King, 384 Mich. 310, 181 N.W.2d 916 (1970) dealt with corporeal identification following uncounseled identification by photograph but the question of the right to counsel was not presented. The question was resolved under the Simmons-Stovall standard of due process and avoidance of impermissibly suggestive procedures. Id, 313, 181 N.W.2d 916.

Our Court of Appeals, however, follows the rule that there is a right to have counsel present at a photographic identification of an accused who is in custody. See People v. Cotton, 38 Mich.App. 763, 197 N.W.2d 90 (1972) overruling People v. Wilkins, 36 Mich.App. 143, 193 N.W.2d 209 (1971); *181 People v. Thomas, 36 Mich.App. 190, 193, 193 N.W.2d 328 (1971); People v. Martin, 37 Mich.App. 621, 628, 194 N.W.2d 909 (1972); People v. Fossey, 41 Mich.App. 174, 182, 199 N.W.2d 849 (1972). See also, People v. Rowell, 14 Mich.App. 190, 198, 165 N.W.2d 423 (1968) (concurring opinion of Levin, J.); People v. Adams, 19 Mich.App. 131, 133, n 1, 172 N.W.2d 547 (1969); **473 People v. Greer, 29 Mich.App. 203, 206, 185 N.W.2d 44 (1970).16 We approve.

In Cotton, supra, defendant had been arrested and two corporeal lineups were held with defendant’s counsel present. Both lineups produced identifications by both witnesses of persons Other than defendant. Defendant’s car was impounded but defendant was released. After his release one witness identified defendant from a group of pictures shown her by the police without counsel present. Defendant was asked to return to the police station and a third lineup was held with counsel present in which the witness identified defendant.

Judge John H. Gillis, after noting that the dangers in photographic identification are at least as great or greater than in corporeal, wrote for the panel:

‘. . . we hold that an accused being held in custody is entitled to be represented by counsel at any photographic identification proceedings.’ 38 Mich.App. 763, 768, 197 N.W.2d 90, 93.

The court went on to apply the rule to the case where defendant Cotton was Not in custody because the investigation had focused on defendant:

‘Turning to the photographic display in the present case, we are of the opinion that this was no longer an in-the-field identification. Its purpose was to build a case *182 against the defendant by eliciting identification evidence, not to extinguish a case against an innocent by-stander. . . . ‘ Id, 769-770, 197 N.W.2d 94.

Cotton and the other cases holding there is a right to counsel in photographic identification recognize that Wade was founded on well recognized principles of social science. The concurring opinion of Judge Levin in People v. Rowell, 14 Mich.App. 190, 197, 165 N.W.2d 423 (1968) is the basis for the later Michigan cases on this issue such as Cotton, supra. In Rowell, Judge Levin considers the problem as follows:

‘The photographic identification stage is as critical as the line-up stage, perhaps more so. The danger of misidentification at the photographic identification stage is as great, perhaps greater. Just as the facts and circumstances of a line-up identification cannot be readily reconstructed at trial, . . . so too the facts and circumstances of a photographic identification preceding the line-up cannot later be readily reconstructed.

‘I am persuaded, and this is the reason I write to state my separate views, that On principle photographic identification should be prohibited where the defendant is in custody unless the witness is physically incapacitated from going to a place where a line-up can be conducted. . . . And in that rare situation where photographs may properly be displayed of an accused person already in custody, the Accused person is entitled to be represented by counsel at the photographic identification stage for the reasons expressed in Wade and Gilbert.’ 14 Mich.App. 190, 198-199, 165 N.W.2d 423, 427. (Footnotes omitted, emphasis added.)

As the citation in Rowell, supra, indicates, the authorities which persuaded Judge Levin are Wall, Eye-Witness Identification in Criminal Cases (1965) and the extensive references quoted and cited therein. In all, eight of the thirteen Court of Appeals *183 Judges17 plus two visiting **474 Judges18 have had occasion to consider this matter. All of them now appear to agree on the principle that an accused in custody is entitled to counsel at a photographic identification procedure.

There is strong support for this Michigan position in the Federal Courts, in other State Jurisdictions and in England. The United States Supreme Court has not directly ruled on the subject yet, but Justice Harlan in Simmons, where the right to counsel was not raised, spoke of the greater dangers of photographic identification as follows:

‘The reliability of the identification procedure could have been increased by allowing only one or two of the five eyewitnesses to view the pictures of Simmons. If thus identified, Simmons could later have been displayed to the other eyewitnesses in a lineup, thus permitting the photographic identification to be supplemented by a Corporeal identification, which is normally more accurate. See P. Wall, Eye-Witness Identification in Criminal Cases 83 (1965); Williams, Identification Parades, (1955) Crim.L.Rev. 525, 531.’ Simmons, 390 U.S. 386, n. 6, 88 S.Ct. 972 (Emphasis added.)

The references to Wall by Justice Harlan in Simmons conclude in part as follows:

‘. . . A photographic identification, even when properly obtained is clearly inferior to a properly obtained corporeal identification. Consequently, witnesses should be asked to examine photographs Only when a proper corporeal identification is impossible (as where no suspect has yet been found) or Difficult. In any other case, the use of photographs is Improper, for it constitutes  *184 the unnecessary employment of an identification procedure clearly inferior in reliability to one which is available.’ Wall, 70. (Emphasis added.)

In United States v. Ash, 149 U.S.App.D.C. 1, 461 F.2d 92, cert. granted, 407 U.S. 909, 92 S.Ct. 2436, 32 L.Ed.2d 682 (1972) Judge Leventhal wrote for the court:

‘. . . the dangers of mistaken identification from uncounseled lineup identifications set forth in Wade are applicable in large measure to photographic as well as corporeal identifications . . .. While these difficulties may be somewhat mitigated by preserving the photograph shown, it may also be said that a photograph can preserve the record of a lineup; yet this does not justify a lineup without counsel . . ..’ Id, 461 F.2d 100.

See also United States v. Zeiler, 427 F.2d 1305, 1307 (CA 3, 1970).19 But Cf. McGee v. United States, 402 F.2d 434 (C.A.10, 1968), cert. den., 394 U.S. 908, 89 S.Ct. 1020, 22 L.Ed.2d 220 (1969); United States v. Bennett, 409 F.2d 888 (C.A.2, 1969), cert. den. sub nom. Haywood v. United States, 396 u.S. 852, 90 S.Ct. 113, 24 L.Ed.2d 101; reh. den., 396 U.S. 949, 90 S.Ct. 376, 24 L.Ed.2d 256 (1970).20

*185 **475 The Pennsylvania Supreme Court said in Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738, 740, cert. den. 400 U.S. 919, 91 S.Ct. 173, 27 L.Ed.2d 159 (1970):

‘. . . Wade cannot be undercut simply by substituting pictures for people, nor can the police prepare a witness for the lineup by privately showing the witness pictures of the accused.’ (Emphasis added.)

In Thompson v. State, 85 Nev. 134, 451 P.2d 704, cert. den., 396 U.S. 893, 90 S.Ct. 189, 24 L.Ed.2d 170 (1969) the Supreme Court of Nevada said:

‘We can discern no substantial difference between a lineup of photographs of persons and a lineup of the persons themselves insofar as the constitutional safeguards required by Wade, supra, are concerned . . ..’ (Emphasis added.)21

Justice Traynor of the California Supreme Court said in People v. Gould, 54 Cal.2d 621, 7 Cal.Rptr. 273, 278, 354 P.2d 865, 870 (1960):

‘(I)dentification from a still photograph is Substantially less reliable than identification of an individual seen in person.’ (Emphasis added.)

In England, whose courts are known for their ‘no nonsense’ approach to criminal evidence, pre-lineup display of photographs has long been grounds for quashing the conviction. See Rex v. Haslom, 19 Crim.App.Rep. 59, 60; 134 L.T.Rep. 158 (1925), where police showing of photographs to witnesses after the accused had been arrested was ‘indefensible’ and the conviction was quashed. See *186 also Rex v. Goss, 17 Crim.App.Rep. 196, 197 (1923) where the court said:

‘No doubt there are circumstances in which the police of necessity make use of photographs, but to make use of photographs beforehand to see whether important witnesses can identify an accused person whom they are afterwards going to see is to pursue a course which is not a proper one.’22

From our own examination of the authorities as cited in this opinion and discussed briefly in Appendix A, we conclude that eyewitness identification through photographs is at least as hazardous as corporeal identification and probably is more **476 hazardous to the securing of correct identifications.

1 2 We therefore derive the following two rules:

1. Subject to certain exceptions,23 Identification by *187 photograph should not be used where the accused is in custody.

2. Where there is a legitimate reason to use photographs for identification of an in-custody accused, he has the right to counsel as much as he would for corporeal identification procedures.24

V. APPLICATION OF RULES TO THE FACTS OF THIS CASE

3 Although Defendant Anderson was in custody before the first photo identification took place at about 11:15 p.m., the failure to have counsel present falls within a well-recognized exception-there was Necessity for an immediate identification since the victim was critically ill in the hospital’s intensive care unit and because of the hour and other facts it was not possible to arrange an immediate lineup. See People v. Adams, 19 Mich.App. 131, 133, 172 N.W.2d 547 (1969); *188 People v. Rowell, 14 Mich.App. 190, 198-199, 165 N.W.2d 423 (1968). Under these circumstances, even a one-man corporeal confrontation such as used in Stovall might be justified, but the better course would be to First conduct a photographic ‘lineup’ with a Fair display of pictures.

4 A different conclusion follows respecting the second and third identifications. The second identification was conducted by the prosecutor on the day following the first identification. Although the use of photographs rather than a corporeal lineup may have been justified under the circumstances, there is no claim that the victim was in so serious a condition that there was still a need for swift action. There was plenty of time to arrange either for defendant’s counsel or substitute counsel to be present or to secure an ‘intelligent’ waiver.

5 The third identification took place three days before the preliminary examination without the knowledge or consent of the prosecutor and without notice to counsel who had been assigned weeks earlier. On oral argument, the People concede that the use of this procedure was inexcusable. In view of the fact that the victim was well enough to testify for hours at the preliminary examination three days later, there is no excuse for not at least attempting to arrange a corporeal lineup rather than using photographs. There is also no excuse for failing to notify counsel.

**477 Our holding that defendant was denied his right to counsel with respect to the second and third photo identifications establishes the legal reason in this case why the People are required to show an independent basis for the in-court identification by clear and convincing evidence.

While we agree that there is an independent basis for the in-court identification in this case, it is necessary because of the highly suggestive identification *189 procedures employed, to establish more evidence than the two factors mentioned by the trial court and the Court of Appeals.25 In cases where the identification procedures employed are suggestive and conducive to irreparable misidentification then, by definition, these procedures operate upon the unconscious recognition process of the witness and create a likelihood that there will be a misidentification irrespective of the degree of previous acquaintanceship between the witness and the culprit and irrespective of the opportunity to observe during the commission of the crime.

6 Where the procedures used are, as in this case, grossly beyond the bounds of propriety it becomes even more important to examine the evidence of what ‘independent’ knowledge the victim or witness had of the identity of the culprit Before suggestive influences were brought to bear.

Importantly, while in the emergency room at the hospital the victim was questioned by Officer Grandsen and her responses were by nodding her head ‘yes’ or ‘no.’ When asked who did this to her she was able, despite her condition, to scrawl on the back of a surgical glove envelope the following:

‘He comes in where I work. Aladdin Bar Bay City.’

The victim was also questioned in the X-ray room before surgery by the ambulance driver in the presence of a nurse. He asked whether he was white and she shook her head ‘no’; colored?- *190 ‘no’; Mexican?-‘no’; Indian?-here she responded by guttural voice sounds and had to say the word several times before the ambulance driver and the nurse present were both to understand.

‘It was a positive, she said Indian and she was very affirmative about the negatives, if you understand what I mean. She shook her head as best she could when I asked the question.’ (Joint Appendix, p. 68a; Trial Record, p. 85.)

Although there was testimony that an Indian other than the appellant was in an altercation with the victim and her male escort in a downtown Bay City bar a week or two before the crime and the same Indian was seen leaving the bar where the victim worked about a week before the crime occurred, there was no suggestion that this other Indian was either a regular patron of the Aladdin Bar or that he and the victim had ever been in the Aladdin Bar at the same time.

7 Because of this evidence of the victim’s knowledge before the suggestion took place viewed in combination with her previous acquaintance with defendant, we are satisfied that her in-court identification was accurate in spite of the employment of grossly suggestive procedures calculated (albeit unintentionally) to prompt an identification of whatever Indian was pictured. It just happens in this case that the Indian pictured was the right Indian, as the jury found beyond a reasonable doubt. Because we find there was an independent basis established by clear and convincing evidence, **478 there is no occasion for us to determine whether the victim’s identification testimony was ‘harmless’ constitutional error.26

VI. MINOR ISSUES

A. Was it Prejudicial Error for the Defendant to *191 be Handcuffed and Subjected to Security Precautions?

8 We recognize that a defendant may be prejudiced in the eyes of the jury by being shackled and manacled in their presence. People v. Duplissey, 380 Mich. 100, 155 N.W.2d 850 (1968). However, we agree with the Court of Appeals that there was no prejudicial error in this case and we adopt that portion of their opinion, 29 Mich.App. 578, 582(2)-583(1), 185 N.W.2d 624.

B. Was it Prejudicial Error to Admit Photographic Slides Depicting the Condition of the Victim While Being Treated at the Hospital?

9 This issue is controlled by our recent decision in People v. Eddington, 387 Mich. 551, 561-563, 198 N.W.2d 297 (1972). Under the standards of Eddington we find no reversible error or abuse of discretion in the use of the photographs here.

CONCLUSION

This case graphically demonstrates the need for police and prosecutorial agencies to cooperate in promulgation and enforcement of legally sufficient and practically effective written guidelines for identification procedures, both corporeal and photographic.

The conviction is affirmed.

T. M. KAVANAGH, C.J., and T. G. KAVANAGH and BRENNAN, JJ., concur.

SWAINSON, J., concurs in result.

*192 **479 APPENDIX A

THE PROBLEM OF EYEWITNESS IDENTIFICATION

The text of the opinion (pp. 466-470) makes reference *193 to some of the aboundant scientific and legal authorities concerning the existence and scope of the problem. This Appendix A supplements the opinion with additional references to the legal and scientific recognition of the problem (Part I) and presents a survey of some psychological factors identified as major causes of

THE PROBLEM (PART II). I. LEGAL & SCIENTIFIC RECOGNITION OF THE EXISTENCE AND SCOPE OF THE PROBLEM

‘. . . (T)he assumption (is) that witnesses can see accurately, hear accurately, and recall accurately. This assumption which is the keystone ‘As If’ of the law of evidence, is in fact contradicted by the findings of psychological science.’1

**480 Scores of legal and scientific writers have commented on the make-believe quality of same of our rules of evidence:

‘The notion, still tolerably prevalent, that the faithfully sworn testimony of a mentally competent witness is in general to be regarded as an exact presentation of reality is without justification.’2

For some reason, the law has until recent years in such decisions as Wade and Simmons, ignored *194 what the behavioral sciences can tell us about the reliability of eyewitness testimony. Almost 90 years ago, Hugo Munsterberg, a pioneer in experimental and theoretical psychology, wrote:

‘The courts will have to learn, sooner of later, that the individual differences of men can be tested to-day by the methods of experimental psychology far beyond anything which common sense and social experience suggest. Modern law welcomes, for instance, for identification of criminals all the discoveries of anatomists and physiologists as to the individual differences; even the different play of lines in the thumb is carefully registered in wax. But no one asks for the striking differences as to those mental details which the psychological experiments on memory and attention, on feeling and imagination, on perception and discrimination, on judgment and suggestion, on emotion and volition, have brought out in the last decade.’3

*195 And even since Wade and Simmons, many decisions seem to have misconstrued **481 the thrust of the Supreme Court’s concern. See e.g., Notes, Pretrial Identification Procedures-Wade to Gilbert to Stovall: Lower Courts Bobble the Ball, 55 Minn.L.Rev. 779 (1971). We have therefore made our own examination of the authorities cited in Wade. In order to properly make an independent evaluation we have also examined additional authorities, including many of the citations and references documenting the authorities cited in Wade. Aside from the recognition of the impact of science and psychology on evidence generally, there is specific recognition of the problems in the area of eyewitness identification. For example, Dean Wigmore, in The Science of Judicial Proof ss 253, 254 (1937) catalogues numerous cases of erroneous identification. He says of the process of securing eyewitness identification:

‘The whole process therefore calls for caution and precaution.

‘1. It calls for caution, in that testimonial assertions to identity must be accepted only after the most careful consideration. On the one hand, the process of Recognition being often more or less subconscious, it May be quite correct, even though no specification of marks can be given as reasons for recognition. On the other hand, The risk of injustice being so serious, the great possibilities of lurking error should cause hesitation, . . .

‘2. The process also calls for Precaution, in taking *196 measures beforehand objectively to reduce the chances of testimonial error. . . . ‘ Id, s 252, p. 537. (Emphasis added except the words ‘caution’ and ‘Precaution.’)4

The opinion, pp 14-15, makes reference to a number of authors documenting examples of misidentification. Often quoted in cases and other materials on the problem are the comments of Felix Frankfurter:

‘What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials. These instances are recent-not due to **482 the brutalities of ancient criminal procedure.’ Frankfurter, The Case of Sacco & Vanzetti 30 (1927).5

*197 The actual number of these tragic miscarriages of justice may never be known. Although no systematic study has ever been conducted in Michigan, we were able in a few hours inquiry to turn up three recent examples of misidentification in Wayne and Macomb Counties.

1. Louis Nasir

The case of Louis Nasir illustrates one of the reasons that cases of erroneous conviction are difficult to ferret out-the evidence offered and the testimony of eyewitnesses is no different, but to the contrary, the case is indistinguishable from cases of correct identification. The innocence of the convicted man comes to light not from the record or proof itself but, as in the Nasir case, by the confession of a criminal who is later arrested for an unrelated crime. In fact in the Nasir case, this might not even have happened except for the diligent post-trial investigation by the Warren Police Department, the Macomb Prosecutor’s Office and court-appointed counsel.

Louis Nasir was once arrested for commission of a crime as the result of mistaken identification. *198 Although no charges were brought his picture was taken and found its way into the ‘mug book.’ Several years later in May of 1965, a bandit wearing wraparound sunglasses and a straw hat held up a credit union in Warren and escaped with almost $5,000.00. There were three witnesses, the manager, an employee named Dimples Anderson and a credit union customer. On the afternoon of the robbery the manager and Dimples were unable to select anyone from a mug book and were unable to select anyone from a lineup in which Louis Nasir was not present. The day after the robbery the manager and the employee picked Nasir from a mug book and also picked him in a one-man ‘show-up’ from behind a one-way glass. On the following Monday all three witnesses picked Nasir from a lineup that did not appear unfair in itself from the record, absent any prior suggestion in the one-man photo show-up or any suggestion that may have occurred in the use of photographs.

Nasir was tried for robbery and the sole issue was identification. Despite the testimony of six witnesses who said they saw Nasir at work the day of the robbery, the jury believed the identification testimony of the credit union manager, Dimples Anderson and the customer and returned a verdict of guilty. Nasir was sentenced to serve 7 to 20 years in prison.

The court-appointed attorney who was to prosecute the appeal was convinced of Nasir’s innocence and enlisted the aid of the two detectives who helped convict Nasir. Working together, the three men found the man who confessed to being an accomplice to the crime. The real robber, who resembled Nasir, had been shot to death in February, **483 1966. A friend of the dead man, who was serving time in Jackson, corroborated the story by *199 revealing that the crime had been admitted to him before the death of the real culprit.6

An hour after Nasir took lie detector tests he was freed on bond pending a new trial and the charges were dismissed on motion of the prosecutor. Nasir had spent 375 days in prison.

One of the ironies of the case is the absolute certainty of the witnesses regarding their identification of Nasir. Dimples Anderson, for example, testified that she had no doubt whatsoever about the identity of the man:

‘Q. It’s possible that you could have made a mistake today?

‘A. No.

‘Q. If you should find out later-if I were to tell you-. . . that this man could not have possibly been there, would you say that you could be mistaken?’7

2. Charles Edward Richardson

On January 16, 1968, a man held up a gas station and escaped. The two gas station attendants *200 positively identified Charles Richardson, who lived in the neighborhood and was about the same size as the man who robbed the station. Two or three months later a man named Kendrick was arrested on an unrelated charge and as the result of diligent police investigation he confessed to the robbery of the gas station. Charles Richardson was released from Jackson Prison. After this evidence was presented to the trial judge, Honorable Horace W. Gilmore, the charges were dismissed on motion of the prosecutor.

This is another case where there was no intentional suggestion and the witnesses were honestly ‘positive’ in their minds about the earlier identification. Again the error is not apparent from the record but was only discovered by diligent police investigation of an unrelated crime. At the Nolle Prosequi hearing the identifying witness upon seeing both the innocent man and the confessed robber could no longer make an identification:

‘The Court: You are aware that Mr. Kendricks has admitted to committing this crime?

‘A. Yes, I heard.

‘The Court: And has testified that Mr. Richardson did not do it?

‘A. Yes, I do, sir.

‘The Court: Can you identify either one of them as the person?

‘A. Well, right now, positively, I couldn’t.’8

**484 3. Charles Clark

On November 23, 1937, three men held up a clothing store in Hamtramck. The owner was shot *201 and killed. The owner’s daughter, who was 21 years old at the time, went to the assistance of her father and was slugged with a revolver by one of the robbers. Charles Clark was later identified by the girl in a lineup as the man who shot her father. One of the other defendants implicated Clark in an initial statement, but he and two others said at the trial later that Clark had no part in it. Clark’s landlady testified that he was home all that day. Nevertheless, Clark was convicted primarily on the identification testimony of the young woman and was sentenced to life imprisonment.

Clark tried for a new trial several times over the 30 years imprisonment, but it was denied each time. Partly because Clark was an exemplary prisoner he was offered parole by the prison authorities and later was offered a pardon and commutation of sentence, but he turned these down because acceptance of such terms would have been a tacit admission of guilt. At one point in a quest for a new trial he was offered the opportunity to plead to a lesser charge, the sentence of which would have freed him immediately. Again he refused.

Finally in 1968 the case was assigned to the Legal Aid & Defenders Association of Detroit. The attorneys researched early transcripts and discovered that the victim’s daughter, the sole identifying witness, had originally said that she could not identify Clark as one of the bandits. In an affidavit in support of the motion for a new trial the witness revealed that after she said she could not identify the defendant, the Hamtramck detectives had pointed Clark out as the guilty man before the lineup.

Clark was granted a new trial in 1968 and the *202 case was dismissed on motion of the prosecutor. As a result of this, on January 28, 1972, Public Act No. 1 of the 76th Legislature was signed into law by Governor William G. Milliken as follows:

‘Sec. 1. There is appropriated from the general fund of the state the sum of $10,000.00, to Charles Lee Clark, born October 17, 1899 at Americus, Georgia, residing at 238 E. Mount Vernon, Detroit, Michigan, for mental suffering incurred in state prison for an offense of which he was found innocent upon later trial after 30 years of confinement.

‘Sec. 2. The money appropriated under the provisions of this act is not made in payment of any claims for damages, but is provided solely out of humanitarian consideration.

‘Ordered to take immediate effect.

‘Approved January 28, 1972.’9

II. WHAT ARE THE CAUSES OF THE PROBLEM?

Wade and Simmons recognize the psychological factors entailed in identification. **485 10 Briefly, the causes stem from the universal fallibilities of perception and memory. Even assuming favorable conditions attending both the original perception and the memory period, there is additional possibility *203 for error inherent in the ‘recognition process’ itself. The possibility for error from these sources will be increased by the operation of aggravating factors, a major one being the many subtle forms of suggestion.

The combined operation of these factors becomes even more significant in the process of seeking truth at trial because of another phenomenon singled out in Wade and Simmons-once any identification decision is made it may well be ‘irreparable’-the witness, whether right or wrong, is unlikely to change his or her mind.11 So for judges, lawyers and even more so to police (who have the most difficult job of finding and building a case against the one right man out of many) the important question is whether an identification is irreparably Correct or whether it is probably an irreparable Misidentification. It is important therefore to understand something of the operation of some of the most basic of these principles of psychology because our only measure of the probative worth of identification evidence is an ability, however fragile, to weigh the probability of error in a given set of conditions.

A. ‘RECOGNITION’

Since ‘identification’ entails an act of recognition, some knowledge of the literature on the psychology of recogniton is helpful in appreciating the impact of suggestion and the effects of inaccurate memory or perception. Inherent in the process of recognition itself are two basic factors which encourage error. As will be seen, these factors are what the Court meant in Wade when it mentioned ‘identification parades’ and ‘show-ups’ and said:

*204 ‘It is obvious that risks of suggestion attend either form of confrontation and increase the dangers inhering in eyewitness identification.’12

Simmons also referred to the suggestion inherent in the procedure itself:

‘. . . Even if the police subsequently follow the most correct photographic identification procedures . . . there is some danger that the witness may make an incorrect identification . . .’13

1. Identification is a Result of ‘Recognition’ Memory and is Less Accurate than ‘Recall’ Memory.

‘Recall’ and ‘Recognition’ are distinct forms of remembering. ‘Recall’ is a straightforward proposition in which there are only very limited ‘cues’ available to aid memory and the range of possible responses eliminates any significance in guessing. ‘Recognition’ memory on the other hand, arises Only where useful memory cues do exist and the job is to make a ‘right’ choice, or ‘reasoned’ guess between the presented alternatives.14

Identification of suspects is a form of ‘recognition memory’ involving an element of choice. As the number of possible choices decreases, the possibility of guessing and the consequence of unreliable results increases. A one-man or one-photo ‘show-up’ is, like a ‘true and false’ exam, simply a form of ‘recognition’ memory where there are only two choices-yes or **486 no-and a flip of the coin *205 would produce as many ‘right’ answers as wrong ones. In a true-false exam in school, however, we can take comfort in our measure of accuracy because we have predetermined what choice is ‘right.’ There is no such comfort in a show-up.

Thus, in a display of six pictures, there is inherent in the very process a degree of suggestion (the mere display suggests one of them is ‘correct’) and a possibility of error (five out of six guesses).15

2. ‘Recognition’ Encourages Positive Identification of Things Merely Similar.

Wade and Simmons both note16 that the very process of sight recognition presents dangers that persons who are merely similar may be perceived as one and the same. Wade leads us to the explanation found in Wigmore, The Science of Judicial Proof ss 250-253 (1937), and also noted in P. Wall, Eye-Witness Identification in Criminal Cases 10 (1965). The gist of it is that Recognition depends on ‘similarity’ and therein lies the key to false recognition and major opportunities for unintentional, subtle suggestion.

When we ‘see’ something ‘out there,‘ the original mental record consists of an ‘attitude’ or ‘sensation’ composed of the various items in the *206 object perceived. This ‘attitude’ or ‘sensation’ is preserved in the memory (more or less imperfectly) in the combination of the various perceived items by a process sometimes called ‘association.’ What occurs during the recognition process is that a subconscious attitude or sensation of sameness or resemblance is aroused. This ‘attitude’ or ‘sensation’ of sameness is accompanied by a subjective feeling of ‘familiarity’ when there are elements of similarity between the new and the previous situation.17

The way the mental processes operate in a hypothetical case (as lawyers are so fond of) is explained by Wigmore, Supra, s 251. Dean Wigmore posits a simple case. There are two people, A and B. Each has perceivable characteristics (whatever they are) by which people identify him.

You, the reader, have seen Only person A previously and are now confronted with Either A or B (you don’t know which). THE QUESTION IS: What are your chances of mistaking PERSON B for A? Now this is completely apart from any ‘suggestion’ intentional or otherwise but considers only the relationship between perception and memory as they operate in the ‘recognition’ process.

*207 **487 Four stages in the mental process which will produce the recognition are suggested by Wigmore:

‘(1) First, the mind, when perceiving A, Perceived a pattern, made up of items (say) b c d e f g.

‘(2) Next the observer’s memory Recorded an impression of this pattern, all or part, I.e. all or some of the items b c d e f g associated.

‘(3) Next, on being shown A or B, the mind Perceives all or some of these items in the person perceived; if that person is A, the items perceivable will be b c d e f g; but if that person is B, the items perceivable will be (say) b c d m n p.

‘(4) Next, comes the Recollection of the originally recorded impressions by the stimulated process of association; and here the result depends on what took place mentally in stage (2) above:‘ Wigmore, Supra, s 251, p. 535.

‘Mental Condition 4a: If in Stage 2 the items recorded were All six of b c d e f g, then on sight of A the recollection will reproduce them all (subconsciously or otherwise), I.e. the correct sensation of identity, positive and complete, will take place, and Correctly; whereas, on sight of B, having b c d m n p, the sensation of nonidentity will take place, and Correctly.’ Id.

‘Mental Condition 4b: Now if in Stage 2 the memory record (or the original perception plus record) included Only the items (say) b c d-, then the sight of Either A or B (both of whom contain those three items) will produce a sensation of Identity, because the sight of b or c or d will by association stimulate one or both of the remaining two items, and the sensation of identity will be more or less positive according to the number of items b c d originally recorded and revived; but if person A is the one shown, the recognition will be Correct, while if person B is shown this recognition will be Incorrect.’ Wigmore, Supra, pp 535-536.

*208 ‘. . . Now Case 4b is a Very common case. The mind ordinarily retains only a few of the items marking a personality; moreover, it will ordinarily perceive only a few in the first place, and the number recorded and revivable will be still fewer. Hence, the danger in such a case of the observer perceiving B and receiving the sensation of his identity with A.’ Id.18

In conclusion, Wigmore points out another variable noted in Wade and Simmons-that the danger of misidentification increases with the degree of Similarity in general appearance between the person seen previously and the person(s) now before you for scrutiny.19 Complicating it further, as the degree of similarity and danger of misidentification increase together they carry along a greater feeling of Certainty that you have made the right choice:

‘Moreover, the Danger increases in the Proportion of B’s actual likeness to A, **488 while really a different individual. E.g. in the case above supposed, A’s items were b c d e f g, and B’s items were b c d m n p. But if B’s items are b c d e f p, and thus five out of six marks are the same, the chances are increased that the observer will record some or all of marks b c d e f, which are the same for both A and B, and the *209 chances are reduced that his mind will record g, which is the only item different from B’s item p.’20

In sum, real prospects for error and suggestion inhere in the very process of ‘recognition’ completely independent of the accuracy and completeness of perception or memory, and whether or not other suggestive influences are present. The importance of the process is that recognition depends upon similarity-degrees of unspecified sameness which become easily affected by suggestion. The identification resulting from even a recognition process unaffected by suggestion is worth no more than the correspondence between what is accurately recalled of the original object and what is perceived of the compared object. Because of the fallibility of perception and memory, there may be very little real correspondence between the two, but an apparent correspondence, though wrong, can result in ‘identification.’21

*210 B. PERCEPTION, MEMORY AND ‘INTERFERENCE’

Reference has already been made above to the fact that a great number of variables will affect not only the accuracy of perception but also will influence the amount and substance of what is retained in memory. Other than such obvious factors are the physical defects an observer may have, the opportunity to observe, environmental conditions and the like, there are some factors affecting the accuracy of **489 perception and memory worth noting briefly.22

*211 1. There is a general unreliability of observation for Unexpected events. A person is capable of grasping only a limited number of impressions at one time and his already limited range of accuity is aggravated when the event is unexpected. Experiments indicate that six to eight impressions are about the maximum of what an experienced observer can grasp of a single, sudden event.23

2. In Critical situations perception will become distorted and any Strong emotion (as opposed to mildly emotional experiences) will affect not only what and how **490 much we Perceive, but also will affect our Memory of what occurred.24

*212 Related to this is the effect of what is called ‘retroactive inhibition’ and ‘cerebral dysfunction.’ Where a person has been in an experience coupled with high emotional stress and especially where there may have been blows to the head in an accident it is very commonly found that memory for the period just preceding the high stress or accident is blank or hazy at best. The generality of this effect, variously called as above or known as ‘retrograde amnesia,‘ has been well established.25 The upshot of the evidence regarding the effect of emotion upon perception and recall is summed up well in Anastasi, Fields of Applied Psychology 548 (1964):

‘. . . Contrary to legal folklore, strong emotion at the time of observation or subsequent report tends to increase the probability of error.’

3. Because of the limited range and accuity of perception, much of what we perceive is actually a result of ‘filling in’ by Our imagination in accordance with our Attitudes and Expectations.26 This *213 propensity to supplement perception by ‘filling in’ in accordance with our attitudes and expectations also has a pronounced effect upon Memory. That is, even assuming a completely accurate perception, our memory will often be incomplete in fact but by the unconscious process of ‘filling in’ we believe we remember things that we have only imagined. This tendency to Unconscious invention of memory during the recall stage provides a fertile ground for suggestive influences however unintentional.27

4. The accuracy of what we perceive as well as what we remember of that perception will be distorted by a number of other factors such as Fatigue, nervous exhaustion, alcohol and Drugs;28 the influences **491 of Group preserves, ‘prestige’ or ‘status’ persons and especially those groups, causes or persons with whom the witness is in some way ‘identified’;29 and the effect of principles *214 of Contiguity (when two things are experienced together, the subsequent recurrence of one will tend to bring back the other), Recency (all things being equal, a most recent experience is better remembered than the more remote), Primacy (the tendency for the first association as well as the most recent to make a strong impression) and Frequency (if several things have been connected with another thing in the past, the one that has most frequently been connected in this way is most likely to recur).30

5. The role of time is greatly misunderstood. Although everyone knows that forgetting and time go hand in hand, it is not satisfactory to say that the Reason we forget is time, because Time is not a causal agent. Time does not enter as a factor in its own right, but merely permits a number of effective variables to operate, some of which have been discussed above. In general, and regardless of what of the variables are operating, Forgetting occurs rapidly in a short interval after the incident to be remembered, becomes progressively slower and gradually levels off. This is described as the ‘curve of forgetting.’31

Time allows for the operation of Interfering factors between the particular activity and the occasion for remembering. The more similar the interpolated activity is to the original learning in substance and degree of sophistication, the greater the impairment in recall of the original material.

The amount of interference is also a function of the Amount of interpolated activity, so Repeated *215 interference destroys memory as effectively as grossly misleading interpolated activity. An obvious factor that should not be underplayed is that the lesser the amount and accuracy of original learning, the more susceptible memory is to interference.

In short, forgetting is not so much a matter of ‘fading away’ but of being crowded out by new impressions causing quantitative and qualitative changes in memory. Striking distortions in remembering may be produced by interpolated activity and material that is similar to the material originally perceived or learned.32 The consequent inaccurate and altered memory of the witness at the time for identification magnifies the impact of the ‘recognition’ process which, because it depends upon similarity,33 is only as reliable and trustworthy as the memory of the identifying witness. It is during the retention period and at the occasion for identification or ‘recognition’ that the most potent of distorting influences comes into play-suggestion.

C. SUGGESTION

Both Wade and Simmons single out suggestive influences as a major factor contributing to the great number of misidentifications.34 The authorities, including **492 those cited in Wade and Simmons are unanimous that on top of the unreliability of sensation, perception and memory there is ‘. . . One factor which, more than anything else, devastates memory and plays havoc with our best intended recollections: that is, the power of suggestion.’35

*216 Suggestion may be implanted deliberately by over-zealous investigators, by a hint, impressive manner, gesture, tone of voice, facial expression or in other ways.36 The rare case of intentional suggestion, however, is not our concern here but rather we are concerned with the probability of innocent suggestive influences from a host of sources. It would serve no useful purpose here and there is not sufficient space to catalog the many forms of subtle, unintentional suggestive influences. Wade and Simmons identify some of the most common ones.37 The importance of the existence of so many possible forms of unintentional suggestion lies in the fact that We are peculiarly susceptible to it and the fact that it is an Unconscious process so that we are Unable to detect its influence while it operates.38

*217 Experiments by psychologists have repeatedly demonstrated the extent to which people are susceptible to suggestion.39 One interesting test discussed in the opinion, pp. **493 10-12, graphically demonstrates the impact of even limited suggestion on the accuracy of a lineup identification. Brown, An Experience in Identification Testimony, 25 Jour of Crim L & Criminology 621 (1935). In another experiment an ‘assault’ was staged in a law school class before 34 students. They were afterwards told to make notes and were given exact descriptions because they might have to testify in court. Five weeks later a 7-man lineup was held in which none of the ‘other’ 6 closely resembled the ‘right’ man. Result?-Only 3 or 8.8% Of the 34 students could pick out the right man. Comment, Possible Procedural Safeguards Against Mistaken Eyewitness Identification, 2 UCLA L Rev 552 (1955).

D. COGNITIVE DISSONANCE

Given the dangers of misidentification resulting from the vagaries of perception, memory, recognition and the impact of suggestion, it becomes important to understand another factor singled *218 out in Wade and Simmons-the effect upon a witness of having made an identification. Both Wade and Simmons recognize that the first identification may well be irreparable whether right or wrong because the witness who made that identification will be greatly influenced by what he then perceived and decided.

In Wade the Court said:

‘Moreover, ‘(i)t is a matter of common experience that, once a witness has picked out the accused at the lineup, he is not likely to go back on his word later on, so that in practice the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there are then, before the trial.“ Wade, 388 U.S. 229, 87 S.Ct. 1933.

In Simmons, Justice Harlan said:

‘Regardless of how the initial misidentification comes about, the witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen, reducing the trustworthiness of subsequent lineup or courtroom identification.’ Simmons, 390 U.S., 383-384, 88 S.Ct. 971.

This factor noted by the Court is a recognition of what psychologists refer to as ‘dissonance’ theory. As one author puts it:

‘(This theory) does not rest on the assumption that man is a rational animal; rather it suggests that man is a rationalizing animal-that he attempts to appear rational, both to others and to himself.’40

The essence of the theory of cognitive dissonance is that before a decision is made, a subject knows certain factors and alternatives which he must *219 weigh to make the decision. The stronger the conflicts of a subject with respect to the alternatives in a decision process, the Greater will his certainty be once the decision is made. In other words, the amount of ‘dissonance’ existing After the decision is a function of the number of things the person knows that are inconsistent with the decision he has made. The greater the conflict before the decision, the greater the dissonance afterwards. Therefore, the more difficulty a person has making a decision, the greater is his tendency to justify that decision (reduce the dissonance) afterwards.41

*220 **494 It cannot be overemphasized that this apparent certainty of the witness after the decision is not the result of conscious or intentional suppression of countervailing factors. The Cognitive and recall processes actually change after a decision is once made and we perceive the strength and weight of the alternatives that led to the decision much differently after we have made a decision:

‘Once the decision is made and the person is committed to a given course of action, the psychological situation changes decisively. There is less emphasis on objectivity and there is more partiality and bias in the way in which the person views and evaluates the alternatives. . . .’ Festinger, Conflict, Decision & Dissonance 155 (1964).

CONCLUSIONS

This brief survey of some of the psychological phenomena involved in eyewitness identification is intended only to aid an appreciation of the seriousness of the problem and its manifold causes. With this background, not only can we evaluate better the claims of parties relating to identification procedures, but also we have at least a starting point to evaluate proposals for alternatives to counsel.

BRENNAN, Justice (concurring).

We granted leave in this case to review the validity of the procedures of photographic identification employed by the police.

My brother’s opinion concludes:

‘Because of this evidence of the victim’s knowledge before the suggestion took place viewed in combination with her previous acquaintance with defendant, we are satisfied that her in-court identification was accurate in *221 spite of the employment of grossly suggestive procedures calculated (albeit unintentionally) to prompt an identification of whatever Indian was pictured.’

Despite careful study, I can see no difference between that conclusion and the conclusion reached by the learned judge of the Court of Appeals:

‘An examination of the record in the present case discloses that while the procedures followed in the photographic display were suggestive, they were not impermissibly so in light of complainant’s prior opportunities to view defendant.’

This, then, is the rule of law in the case, both in the Court of Appeals and in this court;

**495 Where the victim was acquainted with her assailant, and described him to the police, and was in critical condition in the hospital, it was not error to permit an in-court identification of the defendant to be made, despite evidence that the defendant was the only Indian among six persons whose photographs were shown to the victim at the hospital.

The balance of my brother’s opinion, though scholarly and exhaustive, neither adds nor detracts from the rule of law in the case.

If a court is to avoid burdening the profession with confusing seriatim opinions, it is necessary for the justices to ingest much unpalatable dicta. Accordingly, I have signed my brother’s opinion. But, if our opinions are to be of any value as precedent, they should be limited to the enunciation of those rules of law which are decisional, related to the facts in the case before us, and supportive of the result arrived at.

Parallel Citations

205 N.W.2d 461