What is the test for setting aside a finding that a witness's view of a photograph was influenced in court identification?

MultiRegion, United States of America

The following excerpt is from Davis v. United States, 425 F.2d 673 (9th Cir. 1970):

The witness had an excellent chance to closely observe the person who committed the crimes and there is nothing in the record which even remotely suggests that her in court identification was in any way influenced by her view of the photograph. Additionally, appellant was identified by another witness whose testimony is wholly untainted. It is only when the photographic identification procedure is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification, that the verdict should be set aside. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Viewing the record as a whole, it cannot be said that such was here the case or that appellant was denied due process. Borchert v. United States, 405 F.2d 735, 737 (9th Cir. 1968).

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