The Champion

May 2006 , Page 44 

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Challenging The Assumptions Of Neil v. Biggers

By Gerald F. Uelmen

When I was teaching Criminal Procedure at Loyola Law School in L.A. 27 years ago, I was able to pull off a stunt I had always wanted to do: stage a dramatic classroom confrontation involving two undergraduate students who were unknown to any of my students, and then a week later, stage two lineups in the classroom, to see if students could identify the perpetrators. I set it up so we could actually test the assumptions the Supreme Court made in deciding Neil v. Biggers, 409 U.S. 188 (1972) and Manson v. Braithwaite, 432 U.S. 98 (1977). In those cases, the Supreme Court held that an out-of-court identification obtained by the use of an unduly suggestive identification procedure could nonetheless be admitted if shown to be reliable.

Reliability is to be assessed based upon five factors: the opportunity to view, the degree of attention, the accuracy of the description, the level of certainty, and the lapse of time between the crime and the viewing. My experiment resulted in a remarkably h

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