## Facts

- Two unmasked men robbed a federally insured savings and loan association in Chicago on February 27, 1964; five employees witnessed the robbery and gave written statements to the FBI that day.
- A witness saw one robber leave in a white 1960 Thunderbird with a large scrape on the right door; police soon located such a car and learned it belonged to Simmons’s sister-in-law, who said she had loaned it to William Andrews that afternoon.
- FBI agents went without a warrant to the home of Andrews’s mother and searched the premises; in the basement they found two suitcases, one containing items linked to the robbery (including a holster, a sack similar to one used in the robbery, and bank wrappers).
- The next morning, agents obtained snapshots of Andrews and Simmons and separately showed the photos (mostly group pictures) to each eyewitness without indicating that a suspect was depicted; each witness identified Simmons as one robber, and none identified Andrews.
- Later, witnesses again identified Simmons from additional photographs; three witnesses also identified Garrett as the second robber.
- Simmons, Garrett, and Andrews were indicted and jointly tried; all five employees identified Simmons in court, and three identified Garrett.
- Before trial, Garrett moved to suppress the suitcase evidence; to establish standing he testified at the suppression hearing that the suitcase was similar to one he owned and that he owned clothing found in it; the motion was denied.
- Over objection, Garrett’s suppression-hearing testimony was introduced at trial on the issue of guilt.
- Defense counsel sought production of the photographs under the Jencks Act; the trial court denied the request, ruling the photos were not witness “statements.”
- The district court convicted Simmons and Garrett; the Seventh Circuit affirmed.

## Issues

1. Whether the pretrial photographic identification procedure was so impermissibly suggestive that it violated due process by creating a very substantial likelihood of irreparable misidentification.
2. Whether the Jencks Act required production of the photographs shown to witnesses as “statements” related to their testimony.
3. Whether using Garrett’s suppression-hearing testimony at trial as evidence of guilt violated the Fifth Amendment privilege against self-incrimination.

## Decision

- The Court affirmed Simmons’s conviction, holding the photographic identification procedure was not so suggestive as to violate due process.
- The Court held the Jencks Act did not require production of the photographs because they were not witness “statements” within the statute.
- The Court reversed Garrett’s conviction, holding that a defendant’s suppression-hearing testimony offered to support a Fourth Amendment motion may not be admitted at trial on guilt over the defendant’s objection.

## Legal Principles

- A conviction following photographic identification will be set aside on due process grounds only if the photo procedure was so impermissibly suggestive as to create a very substantial likelihood of irreparable misidentification, assessed case by case.
- The Jencks Act requires production only of qualifying “statements” of a witness (written statements adopted by the witness or substantially verbatim recordings of oral statements); photographs shown to a witness are not themselves “statements.”
- When a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, that testimony is not admissible against the defendant at trial on the issue of guilt if the defendant objects, to avoid forcing a choice between asserting Fourth Amendment rights and preserving the Fifth Amendment privilege.

## Conclusion

The Court rejected due process and Jencks Act challenges to the government’s use of pretrial photo displays and refusal to produce the photos, but it held that suppression-hearing testimony given to support a Fourth Amendment motion cannot be used as substantive proof of guilt at trial over the defendant’s objection, requiring reversal of Garrett’s conviction.


Simmons v. United States, 390 U.S. 377 (1968)