The following excerpt is from U.S. v. Gann, 925 F.2d 1471 (9th Cir. 1991):
Defendant argues that the bank tellers' identification of him violated due process, because the identifications were based on an unduly suggestive photo display. Constitutionality of pretrial identification procedures is reviewed de novo. United States v. Bagley, 772 F.2d 482, 492 (9th Cir.1985). Those procedures must not be so suggestive as to taint subsequent in-court identification and therefore deny a defendant due process of law. Id. The test is whether the identification procedures were so impermissibly suggestive as to create a substantial likelihood of misidentification. Id.; Manson v. Brathwaite, 432 U.S. 98, 116 (1977).
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