(dissenting) :
On the basis of a hearing on defendant’s motion to suppress identification testimony expected to be given by the witness Best, one of the occupants of the robbed truck, the District Court held that defendant’s rights had not been violated by the challenged photographic identification. The court also held that Best’s identification had a source independent of the photographic identification. At the jury trial which followed, however, Best testified about an additional photographic identification of Cain, which had not been the subject of the hearing on the motion to suppress. He testified before the jury that this photographic identification had taken place at the police station on the evening of the offense, December 31, 1968.
When the above situation came to our attention we remanded the record to the District Court for a hearing to determine whether the showing of photographs at the precinct station on December 31 was so impermissibly suggestive as to require suppression of any photographic identification testimony, and, also, whether any evidence introduced at the remand hearing upon that subject would call for a different ruling as to an independent source for Best’s identification of appellant.
We now have the transcript of the hearing on the remand, and also the District Court’s order containing its findings that the showing of photographs on December 31, 1968, the evening of the offense, was not impermissibly suggestive, and that the evidence on the remand gave the trial court no reason to change its original ruling on the question of independent source. The court accordingly denied a new trial.
At the remand hearing, however, both Best and the police officers testified that as a matter of fact there was neither a showing to Best of photographs of Cain on December 31, 1968, nor a photographic identification of Cain by Best on that day. Best even denied what the trial transcript, which was read to him, embodied as his trial testimony regarding his identification of Cain on December 31, 1968. Moreover, he also denied that he had testified at *713the preliminary hearing, as the transcript of that hearing, also read to him, recorded he had testified, namely, that he was shown photographs the night of the robbery and “I picked out one. I could tell one.”
The result is that we have now a case in which the majority of this court take the position that no photographic identification of Cain by Best occurred at the police station the evening of the offense, yet the court affirms the conviction notwithstanding the fact that the jury heard testimony by Best that such an identification of Cain did occur. I cannot agree that Cain’s present conviction can stand, founded as it is in part on prejudicial testimony that Best identified him by his photograph the evening of the offense, when, as the court assumes, no such identification occurred.1
Undoubtedly very serious crimes were committed; but Lorick, who with Best was also an ' occupant of the robbed truck, could not identify Cain as a participant. While the District Court found, at the pre-trial hearing on the motion to suppress, that Best’s in-court identification had a source independent of any photographic identification, that finding was made on the basis of testimony which did not include Best’s testimony about his photographic identification of Cain December 31 at the police station.2 It is altogether probable that the jury accepted the in-court identification on the basis of that testimony, which cannot be discarded as of no significance; for testimony of an identification shortly after a crime is exceptionally strong evidence.
The majority opinion seeks to meet the problem by taking the position, primarily, that the testimony before the jury sufficiently indicated that there was no photographic identification of appellant by Best the evening of the offense. The trial transcript in my opinion by no means justifies this position. The following appears from the direct examination of Best before the jury:
Q Now, sir, on this particular date of December 31, later on that day did there later come a time when you went to Police Headquarters to look at pictures ?
A Yes, I did.
Q Were you shown a number of pictures of different persons ?
A Yes, I was.
Q Do you recall from what they were showing you these pictures ?
A No; we went through the books.
Q Books?
A Yes, sir.
Q Did you see a lot of pictures on that particular day?
A Yes, sir.
Q Were you able to see the person that you now identify in those pictures at that time?
A Yes; I saw one photo of him, yes,
Q I am speaking now of the time you were at Police Headquarters on that particular day?
A Yes.
Q Well, did there come a time that the police showed you some more pictures ?
A Yes, they showed me some more.
Q Where was that?
A At my house.
Q Now, who showed you these pictures, do you recall?
A Detective Cain.
Q Were these pictures of different subjects?
*714A Yes, they was.
Q At this time were you able to identify anyone as one of these high-jackers?
A Yes; I identified one picture.
Q That was the same person you identify in court today ?
A Yes, it is.
Q Was that the first time that you made a photo identification of this defendant ?
A Yes.
Q This was at your home ?
A Right.
On cross-examination the following:
Q You also testified, I believe, that the first pictures that you were shown were shown to you of possible suspects at the police station?
A Yes.
Q These were shown to you before another set was shown to you at your home?'
A Yes.
Q You stated that you identified one picture at the police station, is that correct?
A Yes, sir.
Q Now, was that picture that you identified of this defendant ?
A Yes, it was.
Q When was the first time that you saw a picture of this defendant, Mr. Best? Was that at the police station or at your home ?
A Both places.
(Emphasis not in original)
If, as the majority say, he contradicted his testimony of the police station identification he also contradicted his contradiction. He did not abandon his testimony of either a December 31 identification or that it was the first. The reasonable interpretation of his direct and cross-examination is that Best identified a picture of appellant at the police station on the evening of the offense and later at his home. As to the latter, however, if we accept the far more credible testimony of the officer as to what occurred at the home the “next day,” Best did not then identify Cain, as the majority state he did. Rather, as the officer at trial testified as to the home showing of the pictures:
“He [Best] picked out the defendant’s [picture] as strongly resembling one of the subjects involved.” (Emphasis not in original)
I find another difficulty in the reason the majority give for putting aside Best’s testimony of his police station identification of Cain the evening of the offense. The court states,
“The police officer testified that he first showed photographs to Best at his home,”
on the day after the crime. I find this not to be the officer’s testimony before the jury. The officer testified before the jury simply as to what occurred at the home, without characterizing it as a first showing of photographs to Best. Not only did the home incident, according to the officer, lead to no identification, as pointed out above, but neither this officer, nor any other witness, denied at the jury trial that Best identified a photograph of appellant at the police station. Such denial came to light in this case only at the hearing on our remand long after the jury trial at which the jury heard Best’s testimony that he did identify appellant at the police station the evening of the crime.
The majority rely to some extent, as a fail-back position, upon an identification the next day as offsetting any prejudice from an identification the previous evening, assuming the jury believed the latter identification occurred. Such reliance is I think not tenable in face of the officer’s testimony that the next day Best said only that one of the pictures showed him strongly resembled one of the subjects.3
*715The hearing on our remand also casts another cloud upon the court’s basic position of disregarding Best’s testimony of an identification of Cain the evening of the crime. The following occurred during Best’s examination at that hearing:
Q Mr. Best, do you recall testifying in the small courtroom on the first floor on March 18th, 1969 at a preliminary hearing of this case ?
A Yes, I was there.
Q All right.
I am going to read from the official transcript of that hearing and ask you if you were not asked these questions and if you did not make these answers to those questions.
“QUESTION: Was it about — about how long was it after the robbery occurred that you were shown photographs ?
“ANSWER: They showed me some one night, the night of the robbery and at a later date. I don’t remember the later date.
“QUESTION: Were you able to identify any of these photographs or to pick out any of the photographs as being people who were involved in the robbery ?
“ANSWER: Yes, I picked out one. I could tell one.”
I’m going to skip down to line 21 of that page.
“QUESTION: The group photographs, was this on the first occasion?
“ANSWER: It was on the first occasion.
(Emphasis not in original)
On further questioning he denied making these statements which the trun-script of the preliminary hearing recorded. And I have already pointed out that he also denied on the remand what the transcript contained as to his trial testimony.4
It is the view of the majority that in the state of the record a great deal depends upon the use made of the testimony at oral argument. It is said that neither counsel referred to any photographic identification at the police station, and, in the circumstances, the weight of the testimony was for the jury. I agree of course as to the latter. The arguments of counsel to the jury, however, are not a part of the record on appeal. As a consequence we do not have the benefit of appellate counsel’s consideration of their significance. Be that as it may, obviously defense counsel would not rely in his argument to the jury upon the testimony of the police station identification of his client the evening of the offense; and it is quite likely government counsel, out of caution or fairness, would not refer to it because of information available to the government, but not to the jury, which indicated doubt that such an identification had occurred. Yet the United States did not disclaim such an identification to the jury. The testimony about it was left for jury consideration; and for all we know the jury relied upon it.
The sum of the matter is that the jury had every right to believe, and may have done so, that Best identified Cain by his photograph at the police station the night of the robbery. While the court now has a basis for holding that such identification did not in fact occur, I do not see how the court can also say that the jury did not have good reason to believe on the basis of the trial testimony that it did occur, resting its verdict at least in part upon that belief. *716To characterize the situation as harmless is for me unacceptable. Our court en banc has pointed out that testimony of any pre-trial identification by a witness is likely to have far more weight with the jury than an in-court identification. Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230 (1968) (en banc), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969). The testimony of the stationhouse photographic identification adduced in this case early in the trial carried more weight than the in-court identification. And, in view of the officer’s testimony of Best’s failure to make an identification of appellant at his home the day following the crime, Best’s own testimony of the stationhouse identification was doubtless of more weight with the jury than the officer's testimony that the photograph he picked out the next day at his home “strongly resembled” one of the subjects.
I cannot accept the view that the presence of identification testimony which, in light of subsequent developments, the court considers to have been false, but which might well have been the most persuasive of all with the jury, is harmless.5
I respectfully dissent.6
. The District Court made no findings on the remand whether or not it did occur. The court found, as stated above, no impermissible suggestiveness about such an identification. But there was no testimony at the remand hearing as to possibly impermissible suggestiveness of the identification because the testimony was that the identification never took place.
. And see note 1, supra; and note 3, infra.
. This is aside from the question whether the jury could appropriately rely upon the identification incident the next day to offset the prejudicial effect of an identifi*715cation which the jury might have believed occurred the previous day at the police station, in the absence of evidence of the circumstances in which the latter occurred which might have been impermissibly suggestive and thus tainted any subsequent identification.
. All else aside, it is seen that the conviction rests largely on the testimony of a witness who in three respects under oath denied what the transcripts of the pretrial hearing on the motion to suppress and of the preliminary hearing showed he had stated under oath.
. I do not ignore the photographic identification made by Best at his place of work about a week after the crime. But its relative strength with the jury would be far less than an identification made the very day of the incident. ‘'The more recent the experience, the better the memory of it.” Gardner, The Perception and Memory of Witnesses, 18 Corn.L.Q. 391, 392-95 (1933). And the history of the identification testimony in this case raises the distinct possibility that the last photographic identification prior to trial was not a fresh identification of the perpetrator, but the result of association of the photograph then chosen with one earlier-chosen.
. I now add the following in light of several comments in the majority opinion about my above dissenting opinion :
(1) As indicated in my dissent I think it is quite reasonable, especially in light of the testimony on the remand, for the majority to conclude that Best did not identify a photograph of Cain among the photographs shown to him the evening of the offense, although I am not myself certain that he did not. Whether or not he did in fact identify a photograph of Cain that evening, he told the jury that lie did. The subsequent attempts by counsel to clarify the situation left his testimony sufficiently ambiguous for the jury to have reasonably concluded that he did identify Cain the night of the offense.
(2) As to footnote 1 of the majority opinion, I was accurate in pointing out that the officer referred to did not testify that he first showed photographs to Best at the latter’s home. It is also true, however, as the majority now point out, that the first time this officer showed Best photographs of Cain was at Best’s home. The important matter with respect to all of this, it seems to me, is that the home showing of photographs was not the first and that Best testified he identified one photograph at the earlier showing the evening of the offense.
(3) In footnote 6, the majority opinion indicates that my dissenting opinion is incorrect in stating that arguments of counsel to the jury are not a part of the record on appeal. I mentioned this in connection with the absence of the benefit of either counsel’s consideration of their significance. The majority state that the transcripts of the arguments, insofar ns they refer to photographic identification, were, at the court’s request, certified by the reporter under date of December 6, 1971, and hence became available to the court on this appeal. I think my statement was correct. The summations to the jury were not transcribed and made a part of the record filed in this court with the appeal. Xo order of the court or action of the parties subsequently enlarged the record on appeal to include a transcript of the summations. It appears that after the submission of the case a more informal request was made to the reporter to transcribe the summations and this was done. The judges were supplied with copies. I have stated why I thought counsel in their summations made no reference to an identification the evening of the offense.