FOSTER V. CALIFORNIA, 394 U. S. 440 (1969)

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U.S. Supreme Court

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

Foster v. California

No. 47

Argued November 19, 1968

Decided April 1, 1969

394 U.S. 440


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


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

2. The suggestive elements in the repeated confrontations the police arranged between the manager and petitioner so undermined the reliability of the eyewitness identification as to violate due process. Pp. 394 U. S. 442-443.

3. The question of whether the error was harmless under Chapman v. California, 386 U. S. 18, should be determined in the first instance by the California courts. P. 394 U. S. 444.

Reversed and remanded.

Page 394 U. S. 441

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