In re F.G.

STEADMAN, Associate Judge,

with whom BELSON and TERRY, Associate Judges, join, dissenting:

Forming the background in this case are the due process safeguards established by *729the Supreme Court governing the admissibility of identification testimony by an eyewitness, specifically the requirement that a pretrial identification be suppressed by the court where the identification process was such as to “ ‘give rise to a very substantial likelihood of irreparable misidentification.’ ” Neil v. Biggers, 409 U.S. 188, 197, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (1972) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968)). In our jurisprudence, following the analysis set forth in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), we have developed a two-step process for making this inquiry:

“(1) Was the identification procedure ‘unnecessarily suggestive and conducive to irreparable misidentification’?
(2) If so, given the ‘totality of the circumstances,’ was the resulting identification reliable nevertheless?”

Patterson v. United States, 384 A.2d 663, 665 (D.C.1978) (citations omitted); see also Henderson v. United States, 527 A.2d 1262, 1267 (D.C.1987).

A foundation of appellant’s argument here is that since showups are inherently suggestive, defendants should be entitled to a pretrial hearing in such cases in order to determine the identification’s reliability. This assertion, however, fails to take into account the nature of the immediate post-crime showup involved here. We have repeatedly noted that any suggestivity inherent in such a showup is offset by its high degree of reliability. See, e.g., In re B.E.W., 537 A.2d 206, 207 (D.C.1988) (“ ‘an immediate on-the-scene confrontation has uniquely powerful indicia of reliability which more than counterbalance any sug-gestivity, absent special elements of unfairness[;] ... something more egregious than mere custodial status is required in order to establish such special unfairness’ ” (quoting Singletary v. United States, 383 A.2d 1064, 1068 (D.C.1978))). As the court explained in United States v. Washington, 144 U.S.App.D.C. 338, 342, 447 F.2d 308, 312 (1970):

The ordinary on-the-scene confrontation also has great merit in that it operates at a time when the events and facts are fresh in mind and the accused ordinarily has no opportunity to change his clothing or personal appearance. All this is conducive to a high degree of accuracy in a form of identification that can at best be difficult when memories have been blurred by the passage of time and alleged suspects drastically change their appearance. Certainly, identifications conducted on the scene may contain certain elements of suggestiveness but this point can be argued to the jury.

See also Jones v. United States, 277 A.2d 95, 97-98 (D.C.1971) (quoting Washington, supra).

The above-cited cases involved prompt post-crime showups where the accused was presented to a complaining witness who had just been the victim of a fleeting violent crime. In the instant case, the indicia of reliability are even more heightened in that, as the trial court pointed out, “the person making the identification was a professional police officer whose function was to observe the individual who sold him drugs.” In participating in the criminal act, the officer had every expectation of being called upon to make a showup identification within a few minutes and would conduct himself so as to be ready for that task.

Indeed, the special nature of the showup involved here is revealed by the line of cases from the state of New York that refuses to even characterize the confrontation as an “identification.” Rather, they reason, it is simply a confirmation by the undercover officer that the “right person” has been arrested. See, e.g., People v. Doherty, 136 Misc.2d 164, 167, 518 N.Y.S.2d 78, 80 (N.Y.Sup.Ct.1987) (“what occurred was clearly a confirmation that the right man had been arrested and not an identification within the meaning of Wade [United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)]”).

We thus fail to see how such a showup can be presumptively violative of due process or otherwise in itself trigger a right to a full hearing. To the contrary, the nature of a prompt post-crime showup involving a *730trained police officer appears manifestly not to be “unnecessarily suggestive and conducive to irreparable misidentification,” Patterson, supra, 384 A.2d at 665 (quoting Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967)), at least absent some “special elements of unfairness.” Russell v. United States, 133 U.S.App.D.C. 77, 81, 408 F.2d 1280, 1284, cert. denied, 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245 (1969).

Appellant asserts that without a hearing he has no means to ascertain the existence of any “special elements of unfairness.” But this does not totally reflect the realities. In its opposition to appellant’s motion for a suppression hearing, the government provided further detail concerning the overall transaction, which gave no indication that it was other than routine.1 Moreover, the government does not appear to have refused to respond to a specific request by appellant for more information as to some element of the process that might make it impermissibly suggestive or differentiate it from the norm. Nor did appellant present to the court an articulable basis for concern regarding some special aspect of the identification process.

Appellant urges that this court not “overlook” Clemons v. United States, 133 U.S.App.D.C. 27, 34, 408 F.2d 1230, 1237 (1968) (en banc), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969), where it was stated:

Whenever the prosecution proposes to make eyewitness identification a part of its case, the defense is entitled to know, through disclosure by the prosecution or by evidentiary hearing outside the presence of the jury, the circumstances of any pretrial identification.

Any suggestion, however, that this passage offers support for the view that defendants are somehow entitled to pretrial evidentia-ry hearings on suppression motions as a matter of course is not supported by Clemons; the quoted language itself presents as a fully equal alternative “disclosure by the prosecution.” Id. We were advised at oral argument that information of a type relevant here is normally available from the prosecutor’s office. Hence, we think the trial court could properly conclude here that there was no purpose to be served in holding a hearing. Not only did appellant fail to assert facts “which, if established, would warrant relief,” Duddles v. United States, 399 A.2d 59, 63 (D.C.1979), he failed even to point to some unusual element of the identification process here which might fairly raise the possibility of “a very substantial likelihood of irreparable misidenti-fication,” Neil, supra, 409 U.S. at 197, 93 S.Ct. at 381, so as to require further factual exploration.

As the majority acknowledges, we do not deal here with any constitutional command. Watkins v. Sowders, 449 U.S. 341, 101 S.Ct. 654, 66 L.Ed.2d 549 (1981). Instead, the opinion invokes our “supervisory power” to impose a procedural straitjacket requiring a pretrial hearing whenever the defense is dissatisfied with whatever information is provided by the prosecution. Whatever the source and scope of this supervisory power may be, however it may differ from our ordinary responsibility to apply rules of law to matters appealed to us, and whether with respect to the matter before us appellate or trial judges are better situated to make such determinations, the concept seems to focus on dealing with matters as they in fact exist.

We are presented here with assertions that in fact adequate information is made available to ensure that hearings may be directed by the trial courts where reasonable concern exists of a “very substantial likelihood of irreparable misidentification.” It seems strange, then, to postulate that such information may not in each and every case be available because of the absence of a “guaranteed discovery formula,” and go on to require a hearing whenever desired by a defendant, absent “bad faith.”2 It would be time enough, follow*731ing an affirmance in the case before us, to deal in the future with questions of the scope of the duty, if any, imposed upon an unwilling prosecution to provide showup details.

The majority opinion deals with an unproven problem by requiring a rigid procedure which, it might be fairly predicted (as did the trial judge), will result in considerable additional expenditure of time and effort by all those involved in the trial process with virtually no difference in outcome. Assuming such is the province of an appellate court, this does not seem a particularly wise exercise of management supervision.

. The information in the government's opposition related to the details surrounding the undercover purchase and the opportunity to observe the defendant.

. In any event, I have some difficulty with the suggestion that one rationale for permitting a pretrial hearing is to resolve a conflict between testifying and remaining silent at trial. “[A]n *731impermissible burdening of rights is not shown by a mere finding that a choice imposed upon the defendant may have a 'discouraging effect on the defendant’s assertion of his trial rights.' ” Bourn v. United States, 567 A.2d 1312, 1314 (D.C.1989) (quoting Chaffin v. Stynchcombe, 412 U.S. 17, 31, 93 S.Ct. 1977, 1985, 36 L.Ed.2d 714 (1973)).