What is the threshold issue in determining whether a pretrial identification procedure violates a defendant's due process rights?

California, United States of America


The following excerpt is from People v. N.S. (In re N.S.), H042832, H043128 (Cal. App. 2017):

"A pretrial identification procedure violates a defendant's due process rights if it is so impermissibly suggestive that it creates a very substantial likelihood of irreparable misidentification. The defendant bears the burden of proving unfairness as a 'demonstrable reality,' not just speculation." (People v. Contreras (1993) 17 Cal.App.4th 813, 819 (Contreras).) Thus, the threshold issue is whether the identification procedure was unduly suggestive and unnecessary. (People v. DeSantis (1992) 2 Cal.4th 1198, 1222.) If a court determines that the identification procedure was unduly suggestive and unnecessary, then it must evaluate whether the identification was nevertheless reliable

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