Foster v. California

In Foster v. California, 394 U.S. 440, 89 S. Ct. 1127, 22 L. Ed. 2d 402 (1969), the witness finally identified the defendant in a second live lineup after failing to identify him in a previous lineup and one-to-one confrontation. Foster, 390 U.S. at 443. And the defendant was the only person who appeared in both lineups. Id. Under those circumstances, the Supreme Court found the procedure impermissibly suggestive because, "in effect, the police repeatedly said to the witness, 'This is the man.'" Id. In Simmons v. United States, all witnesses identified the defendant in pretrial photographic lineups. 390 U.S. at 382.