98 MARSHALL, J., dissenting lineup including Brathwaite might have been arranged.13 Properly conducted, such a procedure would have gone far to remove any doubt about the fairness and accuracy of the identification.14 Worse still than the failure to use an easily available corporeal identification was the display to Glover of only a single picture, rather than a photo array. With good reason, such single-suspect procedures have "been widely condemned." Stovall v. Denno, 388 U. S., at 302. They give no assurance that the witness can identify the criminal from among a number of persons of similar appearance, surely the strongest evidence that there was no misidentification. In Simmons v. United States, our first decision involving photographic identification, we recognized the danger that a witness seeing a suggestively displayed picture will "retain in his memory the image of the photograph rather than of the person actually seen." 390 U. S., at 383-384. "Subsequent identification of the accused then shows nothing except that the picture was a good likeness." Williams & Hammelmann, supra, n. 1, at 484. As Simmons warned, the danger of error is at its greatest when "the police display to the witness only the picture of a single individual. . . [and] is also heightened if the police indicate to the witness that they have other evidence that . . . the perso [n] pictured committed the crime." 390 U. S., at 383. 13 Indeed, the police carefully staged Brathwaite's arrest in the same apartment that was used for the sale, see ante, at 101, 116, indicating that they were fully capable of keeping track of his whereabouts and using this information in their investigation. 14 It should be noted that this was not a case where the witness knew the person whom he saw committing a crime, or had an unusually long time to observe the criminal, so that the identification procedure was merely used to confirm the suspect's identity. Cf. United States v. Wade, 388 U. S. 218, 250, 251 (1967) (WHITE, J., dissenting). For example, had this been an ongoing narcotics investigation in which Glover had met the seller a number of times, the procedure would have been less objectionable. MARSHALL, J., dissenting 432 U.S. See also ALI, Model Code of Pre-Arraignment Procedure §§ 160.2 (2), (5) (1975). The use of a single picture (or the display of a single live suspect, for that matter) is a grave error, of course, because it dramatically suggests to the witness that the person shown must be the culprit. Why else would the police choose the person? And it is deeply ingrained in human nature to agree with the expressed opinions of others-particularly others who should be more knowledgeable-when making a difficult decision.15 In this case, moreover, the pressure was not limited to that inherent in the display of a single photograph. Glover, the identifying witness, was a state police officer on special assignment. He knew that D'Onofrio, an experienced Hartford narcotics detective, presumably familiar with local drug operations, believed respondent to be the seller. There was at work, then, both loyalty to another police officer and deference to a better-informed colleague.16 Finally, of course, there was Glover's knowledge that without an identifi 15 See, e. g., United States v. Wade, supra, at 228-229; People v. Anderson, 389 Mich., at 173-177, 215-217, 205 N. W. 2d, at 468-471, 491-493; Wall, supra, n. 1, at 26-40; O'Connor, supra, n. 8, at 9-10; Levine & Tapp, supra, n. 8. 16 In fact, the trial record indicates that D'Onofrio was remarkably ill-informed, although it does not appear that Glover knew this at the time of the identification. While the Court is impressed by D'Onofrio's immediate response to Glover's description, ante, at 108, 115, that cannot alter the fact that the detective, who had not witnessed the transaction, acted on a wild guess that respondent was the seller. D'Onofrio's hunch rested solely on Glover's vague description, yet D'Onofrio had seen respondent only "[s]everal times, mostly in his vehicle." Tr. 64. There was no evidence that respondent was even a suspected narcotics dealer, and D'Onofrio thought that the drugs had been purchased at a different apartment from the one Glover actually went to. Id., at 47, 68, 69. The identification of respondent provides a perfect example of the investigator and the witness bolstering each other's inadequate knowledge to produce a seemingly accurate but actually worthless identification. See Sobel, supra, n. 1, § 3.02, at 12. 98 MARSHALL, J., dissenting cation and arrest, government funds used to buy heroin had been wasted. The Court discounts this overwhelming evidence of suggestiveness, however. It reasons that because D'Onofrio was not present when Glover viewed the photograph, there was "little pressure on the witness to acquiesce in the suggestion." Ante, at 116. That conclusion blinks psychological reality." There is no doubt in my mind that even in D'Onofrio's absence, a clear and powerful message was telegraphed to Glover as he looked at respondent's photograph. He was emphatically told that "this is the man," and he responded by identifying respondent then and at trial "whether or not he was in fact 'the man.'" Foster v. California, 394 U. S., at 443.18 I must conclude that this record presents compelling evidence that there was "a very substantial likelihood of misidentification" of respondent Brathwaite. The suggestive 17 That the "identification was made in circumstances allowing care and reflection," ante, at 116, is hardly an unequivocal sign of accuracy. Time for reflection can just as easily be time for reconstructing an image only dimly remembered to coincide with the powerful suggestion before the viewer. 18 This discussion does not imply any lack of respect for the honesty and dedication of the police. We all share the frailties of human nature that create the problem. Justice Frank O'Connor of the New York Supreme Court decried the dangers of eyewitness testimony in a recent article that began with this caveat: "From the vantage point of ten years as District Attorney of Queens County (1956-66) and six years on the trial bench (1969 to [1974]), the writer holds in high regard the professional competence and personal integrity of most policemen. Laudable instances of police efforts to clear a doubtful suspect are legion. Deliberate, willful efforts to frame or railroad an innocent man are totally unknown, at least to me. Yet, once the best-intentioned officer becomes honestly convinced that he has the right man, human nature being what it is, corners may be cut, some of the niceties forgotten, and serious error committed." O'Connor, supra, n. 8, at 1 n. 1. MARSHALL, J., dissenting 432 U.S. display of respondent's photograph to the witness Glover likely erased any independent memory that Glover had retained of the seller from his barely adequate opportunity to observe the criminal, IV Since I agree with the distinguished panel of the Court of Appeals that the legal standard of Stovall should govern this case, but that even if it does not, the facts here reveal a substantial likelihood of misidentification in violation of respondent's right to due process of law, I would affirm the grant of habeas corpus relief. Accordingly, I dissent from the Court's reinstatement of respondent's conviction. Syllabus JEFFERS v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 75-1805. Argued March 21, 1977-Decided June 16, 1977 A federal grand jury returned two indictments against petitioner for offenses under 21 U. S. C. One charged him and nine others with violating § 846 by conspiring to distribute heroin and cocaine during a specified period in violation of § 841 (a) (1), the indictment specifying, inter alia, that the conspiracy was to be accomplished by petitioner's assumption of leadership of a certain organization, by distribution of controlled substances, and by acquisition of substantial sums of money through such distribution. The other charged petitioner alone with violating § 848, which prohibits conducting a continuing criminal enterprise to violate the drug laws, by his distributing and possessing with intent to distribute heroin and cocaine, in violation of § 841 (a) (1) during the same specified period, the indictment alleging that he had undertaken the distribution "in concert" with five or more others, with respect to whom he occupied the position of organizer and supervisor, and that as a result of the distribution he had obtained a substantial income. The court denied a motion by the Government to consolidate the indictments for trial, which the petitioner and his codefendants had opposed on the grounds that neither the parties nor the charges were the same and that, based on the overt acts charged, much of the § 846 evidence would not inculpate petitioner and would therefore be inadmissible against him on the § 848 charge. Petitioner and six codefendants were first tried and found guilty on the § 846 indictment, petitioner receiving the maximum sentence applicable to him of 15 years in prison, a $25,000 fine, and three-year special parole term, and the conviction was affirmed on appeal. Petitioner then moved to dismiss the § 848 indictment on the ground that in the § 846 trial he had already been placed in jeopardy for the same offense and that the "same evidence" rule of Blockburger v. United States, 284 U. S. 299, barred the second prosecution since a § 846 conspiracy was a lesser included offense of a § 848 continuing criminal enterprise. Following denial of petitioner's motion on the ground that the offenses were separate, petitioner was tried and found guilty of the § 848 offense, and was given the maximum sentence for a first offender, viz., life imprisonment and a $100,000 fine, to run consecutively with the § 846 sentence. The Court of Ap |