(concurring):
I agree with the court that the Chapman1 test is not one easily passed. The determination of guilt or innocence in a jury case under our law is for the jury. And where the jury’s deliberations are infected by identification testimony produced by police procedures lacking in due process, it is realistically impossible in most cases, simply by reading the record, to determine with assurance beyond a reasonable doubt that the jury, or at least one juror, was not influenced by the tainted evidence.
Here, as the majority indicates, through a misconception of the law the participants in the trial did not focus on the issue presented on appeal. On the record as made I concur in this court’s resolution of the problem presented, realizing, of course, that the constitutional error recognized for the first time on appeal may be the subject of an appropriate Section 22552 motion.
See Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969).
. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
. 28 U.S.C. § 2255 (1964).