*1 release, summary pre-trial reversal, without the conditions failed tions for prejudice, however, to the submission of consider alternative nonfinaneial con- petitions appropriate previously to the motions or ditions to those which had officers, judicial Court.6 District been see United States Leathers, U.S.App.D.C.

-, 17, 1969; April 412 F.2d filed States, U.S.App. Weaver United (1968), F.2d it is D.C. Ordered the Court that the case be remanded District Court re- UNITED STATES America Salley consideration in v. United States, supra, hereto, attached and Unit- USHERY, Appellant. Ronald A. Leathers, supra. ed States No. 22888. Appeals

United States Court

District of Circuit. Columbia April

Filed 1969. SMITH, Appellant,

Calvin F. Washington, O’Rourke, Mr. Francis J. UNITED STATES of C., pleadings appellant. onwas Atty., Messrs. David G. Q. Atty., Nebeker, and Frank Asst. U. S. pleadings appellee. were on the of Columbia Circuit. Burger Wright, Argued 9,May 1968. Judges, in Chambers. Decided June ORDER May Certiorari Denied See 89 S.Ct. 1780. PER CURIAM. Rehearing Petition Denied appeal of the Dis- This from an order July 5, 1968. denying appellant’s motion trict Court pre-trial came on reduction bail record consideration and the memoranda of and fact sub- law parties,

mitted appearing

It that the General Sessions

Judge appellant’s improperly con- altered pre-trial presid- while ditions of release

ing hearing, preliminary appellant’s Salley U.S.App. v. United D.C.-, 413 F.2d filed 1968, and appearing the District

Judge, upon appellant’s motion to amend seeking Blue v. addition to See vacation Grady App.D.C. order, petitioner bail Kronheim’s Washington Clemmer, Salley might $1,- also seek review imposed by Judge U.S.App.D.C. 000 bond condition Fickling. 1, supra. note see also Holmes v. F.2d 209

367 thereby. not raised Since the issue was the result that in the District incomplete, we re the factual is taking mand this case for making findings and the of such evidence using appropriate, criteria announced Simmons v. 377, 967, 19 L.Ed.2d 390 U.S. 88 S.Ct. applying princi (1968),* 1247 and Wade, ples v. announced in United States 1926, 218, 18 L.Ed.2d U.S. 388 87 S.Ct. 1149 Califor Gilbert State nia, 18 L.Ed. 388 U.S. 87 S.Ct. Denno, 1178 2d Stovall 1967, 18 L.Ed.2d 87 S.Ct. 388 U.S. (1967). Wright United also 1199 404 20,153 (No. decided 1968). re Jurisdiction tained this court.

Remanded. Reifsnyder, Washington, Mr. C. Frank PRETTYMAN, Senior Circuit court), ap- (appointed C. (dissenting). pellant. Clarke, Jr., Atty., De- Mr. A. David my brethren I think would affirm. partment Justice, with whom Messrs. purpose, and the intent and misconceive Atty., and Frank David G. Q. meaning, therefore the Blackwell, Asst. Nebeker and Joel D. Stovall,3 Gilbert,2 Wade,1 Court in brief, ap- Attys., U. S. were on Simmons was cases. pellee. on this fourth the series and latest in merely subject. In it the Senior Prettyman, rulings developed the prior cite but its Judge, and Cir- Weight Robinson, length. Therefore thesis at some Judges. cuit reasonably taken can developed doc careful summation PER CURIAM: opinion the trine. primary ap- The issue raised peal, plausibly unwilling circum- tendered em- prohibit its “We are discloses, whether stances the record photographs], ployment [the use police pretrial procedures super- used in the our either the exercise of appellant less, or, identification visory matter power still robbery proc- requirement. victim violated In- of constitutional and, so, lineup in- stead, if were the ess case must we each hold facts, court tainted identifications of on its own considered (1) necessity California, These criteria include U.S. Gilbert State identification; photographs to use 1951, 18 L.Ed.2d 87 S.Ct. (2) dif- (1967). number persons in the ferent used identification Denno, S.Ct. U.S. Stovall v. procedure; (3) information (1967). L.Ed.2d 1199 police instructions, any, given if immediately 4. Simmons 390 U.S. (1968). prior identification. 19 L.Ed.2d 1247 S.Ct. Wade, S.Ct. 18 L.Ed.2d 1149 eyewitness iden- where court- convictions based solid depend at trial room identification should stark- tification ly upon by photograph photograph whether a ground only photo- their search for the criminal aside on graphic contained the likenesses two *3 fifteen; suggestive give necessary, or it, impermissibly of it I so to is not as as prove every very prosecutor for the a of to to likelihood in rise substantial many every photo- irreparable case how are in misidentification.” judge graph persuade used or to the trial There no dissent in the (beyond that the number was reasonable concurring Black, sep- case. Mr. Justice doubt, My suppose). a reasonable I no- arately, emphatic more than was even tion is that the Court meant to vivid majority point- the of the Court. He emphatic alerting judges in trial to ed to from out that inferences be drawn carefully every possibility watch for testimony the witnesses misidentification, by no matter what weight jury, are a matter of for the not process effected; but at the time same court, reviewing for a he the labeled telling judges the Court was trial not to process question “frivo- raised processes impede reasonable identifi- lous”. The that claim that Court held a Eyewitness cation. identification at unduly procedure an identification is so by prejudicial fatally to taint a convic- photograph aside, set the Court tion “must be evaluated in said, “only’’ use was totality surrounding circumstances.” give impermissibly suggestive “so as to Mr.' the Justice Black very to rise a substantial likelihood of “wide-ranging, has Court no un- such irreparable (Em- misidentification.” power.” controllable The Court stressed phasis supplied.) impressed I am the the cer- identification and the strong expressions Court, the tainty of the witnesses under cross-ex- buttressed the of Mr. vehement view amination. “there the said was in Justice Black. circumstances of this chance case little procedure that, honesty I should all utilized mis- in confess led to Supreme says when Court a convic- identifieation Simmons.” given tion should be if a set aside just When the four in cases procedure suggestive”, “impermissibly cited, possible listed erroneous various impression I derive an intimation an steps procedure, an it in sug- permissibly that a erecting was not a series obstacles gestive and that a not to conviction is prosecutor every a to surmount in case Similarly a aside flaw. I such proof. said, example, When it adjectives impressions derive improper employment appended to “likelihood” “misidenti- “may err, a sometimes” cause witness fieation”. danger” or “there is some or “[t]his complaining In case before us the danger will be increased” if such-and- male, middle-aged awas of an happens, mean, did not Court government, ficial of the Canadian on opinions, I prosecutor read that a duty Embassy active at the He here. disproving every bears the burden of in looked at the a robber down the barrel of potentialities case all mentioned gun period example, Court. For a noticeable a on well- lighted alia, intend that testified,6 convictions He street. inter 5. Id. at 88 S.Ct. 971. I have And on cross-exami- testimony was, part: nation tlie in example, preliminary hearing, 6. For long How of time did direct examination pictures? you look at the gun “This the man who with whom had conversation which minute. One precedent it is used that case before in consciously robber’s noted he court. identi possible use in later features my assailant He described his fication. deference opinion, all they the scene. arrived brethren, case the remand clearly, posi findings by He identified tively further emphatically. hearings He identified course, (involving, of (cid:127) again photograph, evidence-taking) him possibly further un again He was emphatic courtroom. contrary directly to clear and In addi cross-examination. shaken Court. directions surrounding “totality tion, among the pos upon the which bear circumstances” misidentification, fact sibility appellant had arrested the that when *4 be cards pocket a number of credit

his

longing to this victim. 7 not Wright apposite. were there involved The events FULLARD, Appellant, John P.

totally before those different from now Principally no on-the- us. spot was there UNITED STATES confrontation between “no and the robber and commonly accepted sense was The identification there word”. product quite possibly cir- of various District of Columbia Circuit. display Wright put on cumstances. was Argued Feb. familiar before an uncertain witness Decided March general physical with the car and the robbers. characteristics the two Wright promulgated be-

Moreover reexamined

fore should Court’s testified: On cross-examination man who accosted me pointing body. Now, pistol weapon es right holding “Q Which man? “A "A I said I “Q Which ones did “Q “A Yes. “Q And which man was # person? jury me that I side. less were two men. Now, Smith. Calvin Smith. at me Yes. weapon which other away pointed you would revolver, that was was held words, you part recognize held testified at you towards? sir? you pointed about six your tell ^[*] chest on conversation that man. were recognize? pointed a You said body actually As picture, facing there inch- ^[*] your 7. 131 (No. 20153, the revolver. about his verify that. lighting were tify that I would be able attention throughout so I made a “Q “Q “A “A Yes. Calvin Smith was “A ^ “A ^[*] “Q Were And what Very good. No, Did in that man if I beginning identity? «(í V # Jan. up? you'have I did not. focused you in no particular 31, 1968). entire area, ^ had the doubt whatsoever. of the need to iden- I have returned your sir? in fact I was condition of remember effort eyes V # opportunity, conscious revolver holding insure doubt him.” *1* # your you