The State charged William Dee with murder. At the scene of the homicide, officers found a gun with its serial number scratched off. According to Dee, the victim brandished this weapon at him in an attempt to extort money. When Dee’s ex-wife, Gayle Appelgate, informed the police that he owned an “untraceable” gun, they arranged for her to view a weapons “lineup.” In this display, the gun discovered at the scene was the only one without a serial number. Ms. Appelgate chose this gun as similar to the one she had observed in Dee’s home. Dee filed a motion to suppress her identification of the weapon, contending that the lineup of weapons was unduly suggestive because it included only one untraceable gun. After conducting a hearing, the trial court granted the motion, concluding that the impermissible suggestiveness tainted any identification testimony by the witness. The State filed an appeal from this ruling. During the pendency of that appeal, the trial court reconsidered and held that, although the procedure was suggestive and had infected Ms. Appelgate’s ability to identify the gun, Neil v. Biggers, 409 U. S. 188 93 SC 375, 34 LE2d 401 1972, did not apply so as to require exclusion of her testimony. The trial court certified this order for immediate review, and we granted the application for interlocutory appeal.
A pre-trial procedure in which either the victim or another eyewitness confronts the accused or views his photograph in an effort “to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial.” United States v. Wade, 388 U. S. 218, 228 IV 87 SC 1926, 18 LE2d 1149 1967. See also Simmons v. United States, 390 U.S. 377, 384 88 SC 967, 19 LE2d 1247 1968; Gilbert v. California, 388 U. S. 263, 272 IV 87 SC 1951, 18 LE2d 1178 1967. If such an identification procedure is “so unnecessarily suggestive and conducive to irreparable mistaken identification, the defendant is denied due process of law.” Stovall v. Denno, 388 U. S. 293, 302 II 87 SC 1967, 18 LE2d 1199 1967. “It is the likelihood of misidentification which violates a defendant’s right to due process, and it is this which is the basis of the exclusion of evidence . . . .” Neil v. Biggers, supra, 198 III.
