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WATKINS v. SOWDERS, WARDEN
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Argued November 10, 1980
Decided January 13, 1981 *
[ Footnote * ] Together with No. 79-5951, Summitt v. Sowders, Warden, also on certiorari to the same court.
A state criminal court is not required by the Due Process Clause of the Fourteenth Amendment to conduct a hearing out of the jury's presence whenever a defendant contends that a witness' identification of him was arrived at improperly. Pp. 345-349.
STEWART, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. [449 U.S. 341, 342] BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 349.
Frank W. Heft, Jr., argued the cause for petitioners in both cases. With him on the briefs was Daniel T. Goyette.
Victor Fox, Assistant Attorney General of Kentucky, argued the cause for respondent in both cases. With him on the brief were Steven L. Beshear, Attorney General, and Joseph R. Johnson and Penny R. Warren, Assistant Attorneys General.
JUSTICE STEWART delivered the opinion of the Court.
These cases, consolidated for argument and decision in the Court of Appeals and in this Court, present the question whether a state criminal trial court is constitutionally compelled to conduct a hearing outside the presence of the jury whenever a defendant contends that a witness' identification of him was arrived at improperly.
John Watkins, the petitioner in No. 79-5949, was convicted in a Kentucky court of attempting to rob a Louisville liquor store. On the night of January 11, 1975, four men entered the store, one of whom asked for a pack of cigarettes. Walter Smith, an employee of the store, turned around to get the cigarettes, and one of the men said "[t]his is a hold-up." Donald Goeing, a part owner of the store, had been stocking a soft-drink cooler, and when he heard those words, he turned towards the robbers. The man who had spoken thereupon fired two shots at him, one striking him in his arm, the other in the region of his heart. The four men then fled.
That night Smith and Goeing described the gunman to the police. Two days later, the police in the presence of Smith conducted a lineup consisting of three men, one of whom was [449 U.S. 341, 343] Watkins. Smith identified Watkins as the gunman. That same day, the police took Watkins to Goeing's hospital bed, and Goeing identified Watkins as the man who had shot him. Watkins was then charged with first-degree robbery and first-degree assault.
At the subsequent trial of Watkins, the prosecution called Smith and Goeing as witnesses. They both identified Watkins as Goeing's assailant but were not asked by the prosecution about the lineup or the showup. Watkins' counsel, however, cross-examined both men at some length about both the lineup and showup. The prosecution then called a police officer. He testified that he had taken Watkins to be identified at the hospital because "at that time there was some question as to whether or not Mr. Goeing was going to survive the incident." Watkins' counsel cross-examined the officer about both the showup and the lineup and through him introduced pictures of the lineup. For the defense, Watkins' counsel called two witnesses who said that they had been in a pool hall with Watkins at the time of the robbery and another witness who said he had been in the liquor store at the time of the robbery and had not seen Watkins. Finally, Watkins himself testified to his innocence.
On appeal, as he had at trial, counsel for Watkins argued that the trial court had a constitutional obligation to conduct a hearing outside the presence of the jury to determine whether the identification evidence was admissible. The Supreme Court of Kentucky rejected that argument. Relying on its decision in Ray v. Commonwealth, 550 S. W. 2d 482, 483 (1977), the court said "`[a]lthough we are of the opinion that the holding of such a hearing prior to the introduction of this testimony would have been the preferred course to follow, we are not persuaded the failure to have done so requires reversal of appellant's conviction.'" Watkins v. Commonwealth, 565 S. W. 2d 630, 631 (1978). The court found that the identification procedures "fail[ed] to [449 U.S. 341, 344] raise any impermissible suggestiveness" and that Watkins "was in no way prejudiced." Ibid.
Watkins then unsuccessfully sought a writ of habeas corpus in the United States District Court for the Western District of Kentucky. That court held that, "although pretrial suppression hearings are preferable, the failure to hold them does not require the reversal of a conviction." 1 The court also found that admission of neither the lineup nor the showup evidence at the state trial had violated constitutional standards.
The Court of Appeals for the Sixth Circuit affirmed the District Court's judgment and, like the District Court, ruled that a hearing on the admissibility of identification evidence need not be held outside the presence of the jury. Turning to the evidence itself, the court cited Stovall v. Denno, 388 U.S. 293 , as authority for holding that "[g]iven the seriousness of the wounds to Donald Goeing, a showup was necessary in this case." Summitt v. Bordenkircher, 608 F.2d 247, 252. The federal appellate court also held that the lineup evidence had been constitutionally admissible at the state trial.
James Summitt, the petitioner in No. 79-5951, was convicted in a Kentucky court of rape. Late on the night of July 20, 1974, the prosecutrix was forced into a car occupied by two men, driven to an isolated location, raped by one of the men, and then returned to her own car. The next day she reported the crime to the police, described the rapist, and looked through 12 volumes of photographs from police files, without identifying the man who had raped her. Two days later she was taken to another police station, where she examined more pictures. A police officer testified at the subsequent trial of Summitt that "after a short time she pointed to the defendant's picture and said: `This is the man that raped me. [449 U.S. 341, 345] There's no doubt about it, this is Jimbo, the man that raped me.'" In addition to the officer, the prosecutrix and her stepfather as witnesses for the prosecution described the prosecutrix's examination of the police photographs, and the prosecutrix testified that Summitt was the man who had raped her. There was extensive cross-examination.
The Supreme Court of Kentucky found "no error in the trial court's refusal to conduct a suppression hearing and no semblance of impermissible suggestiveness in the identification procedure." Summitt v. Commonwealth, 550 S. W. 2d 548, 550 (1977). Summitt then sought a writ of habeas corpus in the United States District Court for the Western District of Kentucky, but that court found no constitutional error. The Court of Appeals, as in the consolidated Watkins case, affirmed the judgment of the District Court, 608 F.2d 247.
We granted certiorari to consider the constitutional claim asserted by both petitioners throughout their state and federal court proceedings. Sub nom. Watkins v. Bordenkircher and Summitt v. Bordenkircher, 445 U.S. 926 .
The issue before us is not, of course, whether a trial court acts prudently in holding a hearing out of the presence of the jury to determine the admissibility of identification evidence. The prudence of such a hearing has been emphasized by many decisions in the Courts of Appeals, most of which have in various ways admonished trial courts to use that procedure. 2 The [449 U.S. 341, 346] issue here, rather, is whether such a hearing is required by the Due Process Clause of the Fourteenth Amendment.
In urging an affirmative answer, the petitioners first cite cases holding that a defendant has a right to the presence of his counsel at a postindictment lineup, e. g., United States v. Wade, 388 U.S. 218 , and that an identification procedure, in the absence of a lineup, may be so defective as to deprive a defendant of due process of law, e. g., Stovall v. Denno, 388 U.S. 293 . The petitioners then analogize their cases to Jackson v. Denno, 378 U.S. 368 , in which this Court enunciated a defendant's right "to have a fair hearing and a reliable determination on the issue of voluntariness," id., at 377, and in which the Court declared unconstitutional a New York procedure which gave the jury what was in practice unreviewable discretion to decide whether a confession was or was not voluntary.
The petitioners contend that Jackson v. Denno established a per se due process right to a hearing outside the presence of the jury whenever a question of the voluntariness of a confession is raised. If such a hearing is required where the voluntariness of a confession is at issue, it follows, the petitioners argue, that a similar hearing must also be required where the propriety of identification procedures has been questioned.
Even if it be assumed that Jackson v. Denno did establish the per se rule asserted, 3 the petitioners' argument must fail, [449 U.S. 341, 347] because Jackson v. Denno is not analogous to the cases now before us. The Court in Jackson did reject the usual presumption that a jury can be relied upon to determine issues according to the trial judge's instructions, but the Court did so because of the peculiar problems the issue of the voluntariness of a confession presents. The Court pointed out that, while an involuntary confession is inadmissible in part because such a confession is likely to be unreliable, it is also inadmissible even if it is true, because of the "`strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will.'" Id., at 385, quoting Blackburn v. Alabama, 361 U.S. 199, 206 -207. The Court concluded in Jackson that a jury "may find it difficult to understand the policy forbidding reliance upon a coerced, but true, confession . . . . Objective consideration of the conflicting evidence concerning the circumstances of the confession becomes difficult and the [jury's] implicit findings become suspect." Id., at 382.
Where identification evidence is at issue, however, no such special considerations justify a departure from the presumption that juries will follow instructions. It is the reliability of identification evidence that primarily determines its admissibility, Manson v. Brathwaite, 432 U.S. 98, 113 -114; United States ex rel. Kirby v. Sturges, 510 F.2d 397, 402-404 (CA7 1975) (Stevens, J.). And the proper evaluation of evidence under the instructions of the trial judge is the very task our system must assume juries can perform. Indeed, as the cases before us demonstrate, the only duty of a jury in cases in which identification evidence has been admitted will often be to assess the reliability of that evidence. Thus the [449 U.S. 341, 348] Court's opinion in Manson v. Brathwaite approvingly quoted Judge Leventhal's statement that,
A "predicament," if one chooses to call it that, is always presented when a lawyer decides on cross-examination to ask a question that may produce an answer unfavorable to his client. Yet, under our adversary system of justice, cross-examination has always been considered a most effective way to ascertain truth. 4 We decline in these cases to hold that the Due Process Clause of the Fourteenth Amendment inevitably requires the abandonment of the time-honored process of cross-examination as the device best suited to determine the trustworthiness of testimonial evidence.
A judicial determination outside the presence of the jury of the admissibility of identification evidence may often be advisable. In some circumstances, not presented here, such a determination may be constitutionally necessary. But it does not follow that the Constitution requires a per se rule compelling such a procedure in every case.
Accordingly, the judgments are
[ Footnote 2 ] E. g., United States v. Mitchell, 540 F.2d 1163 (CA3 1976); United States v. Cranson, 453 F.2d 123 (CA4 1971); Haskins v. United States, 433 F.2d 836 (CA10 1970); United States v. Ranciglio, 429 F.2d 228 (CA8 1970); United States v. Allison, 414 F.2d 407 (CA9 1969); United States v. Broadhead, 413 F.2d 1351 (CA7 1969); Clemons v. United States, 133 U.S. App. D.C. 27, 408 F.2d 1230 (1968) (en bane). The Court of Appeals for the Fifth Circuit has left the matter to the discretion of the district courts. United States v. Smith, 546 F.2d 1275 (1977). At least two Federal Courts of Appeals have commended hearings outside [449 U.S. 341, 346] the presence of the jury to state courts, Nassar v. Vinzant, 519 F.2d 798 (CA1 1975); United States ex rel. Phipps v. Follette, 428 F.2d 912 (CA2 1970), and at least one has held that due process may in some circumstances require a hearing outside the presence of a jury to decide the admissibility of identification evidence. United States ex rel. Fisher v. Driber, 546 F.2d 18 (CA3 1976).
[ Footnote 3 ] See Pinto v. Pierce, 389 U.S. 31, 32 :
[ Footnote 4 ] As Professor Wigmore put it, "[cross-examination] is beyond any doubt the greatest legal engine ever invented for the discovery of truth." 5 J. Wigmore, Evidence 1367 (Chadbourn rev. 1974).
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.
The Court holds that the Due Process Clause of the Fourteenth Amendment did not require that the trial judge in each of the instant cases hold a "fair hearing," Jackson v. Denno, 378 U.S. 368, 377 (1964), to decide the admissibility of eyewitness identification evidence, and that a remand is not now required to accord such a hearing. While freely conceding that a "judicial determination outside the presence of the [449 U.S. 341, 350] jury of the admissibility of identification evidence may often be advisable [and i]n some circumstances . . . constitutionally necessary," ante, at 349, the Court holds that the Constitution does not require "a per se rule compelling such a procedure in every case," ibid. I dissent. In my view, the Due Process Clause mandates such a hearing whenever a defendant, as both petitioners did at their respective trials below, has proffered some evidence that pretrial police procedures directed at identification were impermissibly suggestive. The flaw in the Court's reasoning lies in its statement that identification evidence does not implicate the "special considerations" on which Jackson v. Denno relied to "justify a departure from the presumption that juries will follow instructions." Ante, at 347. Surely jury instructions can ordinarily no more cure the erroneous admission of powerful identification evidence than they can cure the erroneous admission of a confession. Accordingly, the separate judicial determination of admissibility required by Jackson for confessions is equally applicable for eyewitness identification evidence. Because the record before us is inadequate to conclude that in each case the identification evidence was properly admitted, see Jackson v. Denno, supra, at 376-377, I would remand these cases for further proceedings.
At least since United States v. Wade, 388 U.S. 218 (1967), the Court has recognized the inherently suspect qualities of eyewitness identification evidence. 1 Two particular attributes of such evidence have significance for the instant cases. First, eyewitness identification evidence is notoriously unreliable:
Second, despite its inherent unreliability, much eyewitness identification evidence has a powerful impact on juries. Juries seem most receptive to, and not inclined to discredit, testimony of a witness who states that he saw the defendant commit the crime. 3
Any purported distinction between the instant cases and Jackson is plainly specious. In Jackson, this Court invalidated a New York State procedure whereby the jury was instructed first to determine the voluntariness of a defendant's confession 6 and then to disregard the confession if it concluded that the confession was involuntary. Jackson struck down this practice and required first that the voluntariness [449 U.S. 341, 354] of a confession be determined by the judge before its admission in evidence, and second that the jury not be allowed to consider an inadmissible confession. Jackson refused to rely on the curative effect of jury instructions where the trial judge had not applied "`the exclusionary rules before permitting evidence to be submitted to the jury.'" 378 U.S., at 382 , n. 10, quoting Meltzer, Involuntary Confessions: The Allocation of Responsibility Between Judge and Jury, 21 U. Chi. L. Rev. 317, 327 (1954). 7
For purposes of the instant cases, three factors central to our decision in Jackson are apposite. First, Jackson stated, as the Court today notes, ante, at 347, "that the Fourteenth Amendment forbids the use of involuntary confession . . . because of the probable unreliability of confessions that are obtained in a manner deemed coercive." 378 U.S., at 385 -386. Second, Jackson stated, as the Court today further notes, ante, at 347, that involuntary confessions are inadmissible "because of the `strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will.'" 378 U.S., at 386 . 8 Third, because of the sensitive nature of confession [449 U.S. 341, 355] evidence, Jackson found that instructions were not adequate to assure that the jury would ignore involuntary confession evidence:
Nor can it be assumed, as the Court has, that cross-examination will protect the accused in this circumstance. That is no more true here than it was in Jackson, where the defendant was also allowed to cross-examine on the question of voluntariness. Cross-examination, of course, affects the weight and credibility given by the jury to evidence, 11 but cross-examination is both an ineffective and a wrong tool for purging inadmissible identification evidence from the jurors' minds. It is an ineffective tool because all of the scientific [449 U.S. 341, 357] evidence suggests that much eyewitness identification testimony has an unduly powerful effect on jurors. Thus, the jury is likely to give the erroneously admitted evidence substantial weight, however skillful the cross-examination. See generally E. Loftus, Eyewitness Testimony 9 (1979). Cross-examination is also a wrong tool in the sense that jury instructions are the means normally employed to cure the erroneous introduction of evidence. At best, cross-examination might diminish the weight the jury accords to the admissible evidence. The likelihood is, however, that the jury would continue to give the improperly admitted evidence substantial weight, even if properly instructed to disregard it.
It is clear beyond peradventure, I submit, that because of the dangers to a just result inherent in identification evidence - its unreliability and its unusual impact on the jury - a "fair hearing and a reliable determination" of admissibility, Jackson v. Denno, 378 U.S., at 377 , are constitutionally mandated. The Due Process Clause obviously precludes the jury from convicting on unreliable identification evidence. Manson v. Brathwaite, supra. 12 But the only way to be sure that the jury will not rest its verdict on improper identification evidence, as a practical matter, is by not permitting the jury to hear it in the first place. A Jackson v. Denno hearing would expediently accomplish that purpose. 13 I believe that the Due Process Clause requires no less. [449 U.S. 341, 358]
A large and distinguished group shares my view. The lower federal courts with virtual unanimity have encouraged the type of hearing sought by petitioners. 14 As already noted, [449 U.S. 341, 359] the Court too states that "[a] judicial determination outside the presence of the jury of the admissibility of identification evidence may often be advisable [and i]n some circumstances . . . constitutionally necessary." Ante, at 349. I should think it follows from this congruence of opinion on the desirability of such a judicial hearing that evolving standards of justice 15 mandate such a hearing whenever a defendant proffers sufficient evidence to raise a colorable claim that police confrontation procedures were impermissibly suggestive. See, e. g., United States ex rel. Fisher v. Driber, 546 F.2d 18, 22 (CA3 1976).
In the instant cases, the suggestiveness of the confrontation procedures was clearly shown, and equally clearly cross-examination in front of the jury was inadequate to test the reliability of the evidence because of the undoubted inhibiting effect on cross-examination from fear that rigorous questioning of hostile witnesses would strengthen the eyewitnesses' testimony and impress it upon the jury. See United States v. Wade, 388 U.S., at 240 -241. 16 In any event, the record [449 U.S. 341, 360] is inadequate to decide that petitioners could not have succeeded in foreclosing admission of the evidence if they had been afforded a hearing out of the jury's presence in the first place. Accordingly, I would remand for such further proceedings as are necessary to give these petitioners "a fair hearing and a reliable determination," Jackson v. Denno, 378 U.S., at 377 , that the identification evidence in each trial was not erroneously admitted.
[ Footnote 1 ] The special nature of eyewitness identification evidence has produced an enormous reservoir of scholarly writings, many based on solid empirical research. For a bibliography of that literature, see E. Loftus, Eyewitness Testimony 237-247 (1979).
[ Footnote 2 ] "[S]uggestibility inherent in the context of the pretrial identification" is a factor that has led the Court to require the presence of counsel at postindictment lineups. United States v. Wade, 388 U.S., at 235 . If counsel is not present at such a lineup, the identification may not be introduced into evidence at trial and an in-court identification may be made only if the prosecutor establishes "by clear and convincing evidence that the in-court identification [was] based upon observatio[n] . . . of the suspect other than the lineup identification." Id., at 240.
[ Footnote 3 ] "[J]uries unfortunately are often unduly receptive to [identification] evidence . . . ." Manson v. Brathwaite, 432 U.S. 98, 120 (1977) (MARSHALL, J., dissenting) (footnote omitted). See Loftus, supra, at 8-19; P. Wall, Eye-witness Identification in Criminal Cases 19-23 (1965); Hammelmann & Williams, Identification Parades - II, 1963 Crim. L. Rev. 545, 550. See generally A. Yarmey, The Psychology of Eyewitness Testimony (1979).
[ Footnote 4 ] Loftus, supra, at 19 (emphasis supplied). Professor Loftus exhaustively canvasses statistical and psychological evidence which persuasively supports her conclusion that eyewitness identification evidence is "overwhelmingly influential." Id., at 9.
[ Footnote 5 ] Professor Loftus, ibid. (emphasis in original), observes that "[j]urors [449 U.S. 341, 353] have been known to accept eyewitness testimony pointing to guilt even when it is far outweighed by evidence of innocence."
Wall, supra, at 19 (footnotes omitted) (emphasis supplied), concludes:
[ Footnote 6 ] Distinguishing Jackson from the instant cases on the basis that the jury there was first instructed to determine voluntariness is not persuasive. That consideration goes to the weight given the evidence by the jury. Jackson itself recognized that the lingering effect of the involuntary confession might be decisive in the jury's deliberation. Such an effect is no less likely to be decisive in the case of powerful eyewitness identification evidence that a jury has been instructed to ignore. In both instances, peculiarly powerful evidence must leave an indelible impact on a juror's mind. See n. 7, infra.
[ Footnote 7 ] The Court in Jackson noted:
[ Footnote 8 ] Of course, police misbehavior is not always so lacking in subtlety that involuntary confessions are invariably wrenched from an accused by force. Thus, indirect methods of interrogation which seek to elicit a statement [449 U.S. 341, 355] from a custodial suspect may also warrant a conclusion of involuntariness. See Rhode Island v. Innis, 446 U.S. 291, 301 (1980) (interrogation includes actions which "the police should know are reasonably likely to elicit an incriminating response"); cf. Brewer v. Williams, 430 U.S. 387 (1977) (Sixth Amendment violation).
[ Footnote 9 ] See n. 6, supra.
[ Footnote 10 ] In both of these cases, the eyewitnesses were also the victims of the crimes. Not only does that dual status affect the reliability of the identification, but it also is likely to make the testimony more powerful and thus less curable by jury instructions. Clearly, this is not a case where 14 reliable identifications were properly received in evidence, but a 15th by a nonvictim witness was subject to suggestive confrontation procedures and was unreliable, thereby raising the possibility that the error was harmless beyond a reasonable doubt.
[ Footnote 11 ] In Manson v. Brathwaite, 432 U.S., at 116 , the Court stated:
[ Footnote 12 ] In Jackson v. Denno, the Court was concerned that the jury not hear a defendant's confession until a trial judge had made a preliminary determination of voluntariness. The Court assumed that were this not done, a deleterious impact on the jury's deliberations would operate:
[ Footnote 13 ] The Court errs in any event in deciding these cases on the premise that petitioners request a per se rule requiring a hearing out of the jury's presence in every case. In the first place, petitioners rely substantially [449 U.S. 341, 358] on authority which does not go that far. Brief for Petitioners 43-45. Clearly, they have sought reversal of their convictions on the basis that they were entitled to such a hearing. Moreover, there is no question here that they raised a colorable claim that the confrontation procedures were impermissibly suggestive. See, e. g., United States ex rel. Fisher v. Driber, 546 F.2d 18, 22 (CA3 1976); United States v. Cranson, 453 F.2d 123, 127 (CA4 1971), cert. denied, 406 U.S. 909 (1972).
If the Court's result is out of concern for not adding another layer of complexity to criminal litigation, that is understandable, but not sufficient to supplant an accused's constitutional right. Moreover, a rule requiring the defendant to proffer some minimum quantum of evidence showing the suggestiveness of the confrontation procedures would eliminate frivolous requests. See, e. g., United States ex rel. Fisher v. Driber, supra, at 22.
[ Footnote 14 ] United States ex rel. Fisher v. Driber, supra, at 22 (requiring hearing outside presence of jury where motion for such hearing is not frivolous); United States v. Smith, 546 F.2d 1275, 1279 (CA5 1977) (evidentiary hearing not required where no critical facts in dispute); United States v. Mitchell, 540 F.2d 1163, 1166 (CA3 1976) (defendant could have "requested a hearing outside the presence of the jury in accordance with Neil v. Biggers"), cert. denied, 429 U.S. 1099 (1977); Nassar v. Vinzant, 519 F.2d 798, 802, n. 4 (CA1) (commending hearing out of jury's presence), cert. denied, 423 U.S. 898 (1975); United States v. Cranson, supra, at 125-126 ("evidentiary hearing outside the jury's presence is required" upon motion to suppress); Haskins v. United States, 433 F.2d 836, 838 (CA10 1970) (requiring hearing outside of jury's presence); United States v. Ranciglio, 429 F.2d 228, 230 (CA8) ("trial court, out of the hearing and presence of the jury, conducted a hearing as required in Wade"), cert. denied, 400 U.S. 959 (1970); United States ex rel. Phipps v. Follette, 428 F.2d 912, 913, n. 1 (CA2) ("commend[ing] . . . practice" of hearing out of jury's presence), cert. denied, 400 U.S. 908 (1970); United States v. Allison, 414 F.2d 407, 410 (CA9) (requiring hearing outside of jury's presence), cert. denied, 396 U.S. 968 (1969); United States v. Broadhead, 413 F.2d 1351, 1359 (CA7 1969) (pretrial hearing approved), cert. denied, 396 U.S. 1017 (1970); Clemons v. United States, 133 U.S. App. D.C. 27, 34, 408 F.2d 1230, 1237 (1968) (en banc) (requiring hearing outside of jury's presence or disclosure of prosecutor's evidence), cert. denied, 394 U.S. 964 (1969). Even the Court of Appeals deciding these cases stated that it had "no [449 U.S. 341, 359] doubt that" a hearing out of the jury's presence "is the preferable procedure." Summitt v. Bordenkircher, 608 F.2d 247, 250 (CA6 1979).
In addition, the Commonwealth of Kentucky, where petitioners were tried and convicted, appears to require a hearing out of the presence of the jury, upon defendant's motion, for confession and for search evidence. See Ky. Rule Crim. Proc. 9.78. In addition, Moore v. Commonwealth, 569 S. W. 2d 150, 153 (Ky. 1978), decided after petitioners were convicted, held that the trial court's refusal to hold a suppression hearing to determine the admissibility of identification evidence constituted error. Previous Kentucky appellate decisions had reached a similar conclusion. E. g., Francis v. Commonwealth, 468 S. W. 2d 287 (App. 1971).
[ Footnote 15 ] See, e. g., Harper v. Virginia Board of Elections, 383 U.S. 663, 669 (1966) (equal protection); Trop v. Dulles, 356 U.S. 86, 100 -101 (1958) (plurality opinion of Warren, C. J.) (Eighth Amendment).
[ Footnote 16 ] It is no answer to say, as the Court does, that the record does not reflect that petitioners' respective counsel were deterred by the presence of the jury, for the simple reason that a cold record cannot reflect questions not asked. [449 U.S. 341, 361]