Neil v. Biggers Pretrial Identification Procedure

During a criminal trial, if there is an eye witness to the crime, then it will be very likely that the defense will make a motion to hold a Neil v. Biggers hearing. This pretrial hearing involves questioning the eye witness to determine if law enforcement used an improperly suggestive photo lineup (or similar issues).

In the recent S.C. Court of Appeals case, State v. Warner, Judge Hill described the procedure for this pretrial hearing. First, the judge “must decide is whether the identification was the result of a police procedure that was both unnecessary and suggestive. If it was not, the inquiry ends.” But if the judge finds it was unduly suggestive, then the eyewitness testimony would be suppressed “if the procedure created a "substantial likelihood of irreparable misidentification.”

So does the trial judge need to hold a Neil v. Biggers hearing for every eyewitness identification? The court cited both the U.S. Supreme Court and the S.C. Supreme Court in holding that not every ID witness needs a hearing, “only those procured by needlessly suggestive state action.”

Neil v. Biggers Requirements

So it appears that are 4 requirements for suppression:

1. State action

2. Unnecessary

3. Suggestive

4. If both 2 and 3, then was there “substantial likelihood of irreparable misidentification” ?