identification. This opinion relates to that ruling.
The following sets forth my findings of fact and conclusions of law on the matter of identification testimony of Mrs. Hemphill and Mr. Liekefett.
On March 1, 1973, the Meadowlands National Bank in North Bergen, New Jersey, was robbed. At approximately 11:00 a.m. on that date an armed robber came to the teller window behind which stood Mr. Liekefett. To Mr. Liekefett's left stood Mrs. Hemphill. The robber warned them that "This is a holdup," and further admonished them that if they gave any warning and failed to obey his instructions they would be shot. Instinctively, Mrs. Hempel moved her leg slightly and the robber turned the gun partially toward her and warned her that if she moved again she would be shot.
Thereafter, following the directions of the robber, Mr. Liekefett reached down to his drawer and pulled out cash and put it up on the counter in front of the robber. Each time he did so he would look at the gun and at the face of the robber.
Mrs. Hemphill during the entire course of the robbery never took her eyes off the face of the robber. Mrs. Hemphill testified that the incident lasted for approximately two minutes. Mr. Liekefett estimated that it was closer to three minutes.
The lighting was excellent and the view of both of the bank employees of the robber's face was unobstructed.
At all times during the robbery the robber held his gun on the employees, pointing it in Mr. Liekefett's direction other than the one movement toward Mrs. Hemphill to which reference has already been made.
Apparently because a door to the bank makes a squeaky noise and a customer had entered, the robber terminated the holdup, put his gun inside of his coat and coolly turned and walked out of the bank.
Within a few hours the Federal Bureau of Investigation had exhibited a photographic spread (Exhibits G-8-A through G-8-G) to Mrs. Hemphill and Mr. Liekefett. Both they and the agent who presented the spread testified as to the procedures utilized. It is plain that there was no suggestiveness either in what was said or done by the agent when he presented the photographs to the witnesses. It is equally plain, based upon my own observation of the spread, that there was no suggestiveness in the photographs utilized. The photograph of the defendant Mauchlin was included because Special Agent Gerrity, who made the photograph presentation, was very familiar with Mauchlin and based upon events that had transpired over the preceding several weeks, the physical description furnished by Mrs. Hempel, and the modus operandi, suspected strongly that Mauchlin might be the robber. There are others whose photographs also appeared in the spread who to a greater or lesser degree resembled Mauchlin.
Under all the circumstances, therefore, I find that the spread was fairly composed by the agent.
Both Mrs. Hemphill and Mr. Liekefett selected Mauchlin's photograph (Exhibit G-8-A) as the one which resembled the bank robber.
Later on the day of the robbery Mrs. Hemphill went to the North Bergen Police Headquarters where she was shown further photographs contained in a "mug shot" book. There was no evidence offered relating to what was thus exhibited to her.
During the course of these proceedings a photograph containing two frames of film of a camera maintained by the bank and depicting the robbery in progress were shown to Mrs. Hemphill. She, of course, identified the man in the photograph and the entire scene as representing the one who had robbed the bank and the event which she had just a few hours before participated in.
Also on March 1st Mr. Liekefett saw photographs shown to him by the North Bergen Police but subsequent to the aforesaid FBI procedure. He did not see the frames of the filming of the holdup until March 2, 1973. Both Mrs. Hemphill and Mr. Liekefett initialled the photograph embodying the two frames of film and the exhibit itself was marked as G-7 at the Simmons hearing.
Mr. Liekefett never saw any photographs thereafter. His services at the bank were terminated after March 2, 1973.
Mrs. Hemphill for many weeks after the robbery had available to her for observation the photograph referred to as G-7 herein because the bank officers decided, probably because of previous robberies, that it might be well to post this photograph on a wall where the employees would be able to become familiar with the features of the robber. I carefully observed both witnesses as they made an in-court identification of the defendant Mauchlin. Both of them made the identification with certainty and without hesitation or doubt. Even before the identification was made in court, the witnesses had been asked what descriptions they had given to the FBI about the robber. These descriptions reasonably approximate the features of Mauchlin as I observed him in court.
The government urges that there was no impermissible suggestiveness in the pretrial procedures which tainted the in-court identification. The government indicated that it did not intend to offer any testimony before the jury relating to the selection of Mauchlin's photograph from the photograph spread presented by the FBI. The government, however, did state that it intended to offer for jury consideration Exhibit G-7.
The Supreme Court has stated in connection with the issue just raised the following ( Simmons v. United States, 390 U.S. 377, at 384, 88 S. Ct. 967, at 971, 19 L. Ed. 2d 1247):
(Each) case must be considered on its own facts, and . . . convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.
The danger on which the Court was focusing, of course, was the " (regardless) of how (an) 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." Id. at 383-384, 88 S. Ct. at 971. Yet despite the serious risks and even more serious consequences of misidentification through the use of photographs, the Supreme Court was "unwilling to prohibit (their) employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement," noting that the technique was "used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs." Id. at 384, 88 S. Ct. at 971.
I consider the Simmons test to be a two-fold one: that to sustain the exclusion of identification testimony, there must be a showing both of impermissibly suggestive procedures and of the substantial likelihood of misidentification. Where one or both is lacking, eyewitness identification testimony is to be admitted.
While the Supreme Court has not explicitly adopted a two-step approach in applying the Simmons test of the totality of the circumstances, in Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972), the Court upheld a conviction where the one eyewitness, the victim of a rape, had over some seven months viewed suspects "in her home or at the police station, some in lineups and others in show-ups," and many in photographs, before identifying her attacker at a showup. The Court reaffirmed that "the primary evil to be avoided is 'a very substantial likelihood of irreparable misidentification, ' Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247." It then went on to consider "whether . . . unnecessary suggestiveness alone requires the exclusion of evidence." Neil v. Biggers, supra, at 198-199, 93 S. Ct. at 382, The Court concluded:
While we are inclined to agree . . . that the police did not exhaust all possibilities in seeking persons physically comparable to respondent, we do not think that the evidence must therefore be excluded. The purpose of a strict rule barring evidence of unnecessarily suggestive confrontations would be to deter the police from using a less reliable procedure where a more reliable one may be available, not because in every instance the admission of evidence of such a confrontation offends due process. ( Id. at 199, 93 S. Ct. at 382).