concurring:
Judge Friendly’s dissent contends that the circumstances under which Colon identified Dickerson at the arraignment of Dickerson’s cousin were not sufficiently suggestive to warrant assessment of the reliability of the identification under the criteria set forth in Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382-383, 34 L.Ed.2d 401 (1972). I share the dissent’s concern that the police should not be obliged to act in a “wholly unnatural fashion,” see infra at 249, but I am satisfied that no such requirement has been imposed by the decision of this case.
In the first place, the brief from the office of the New York Attorney General, challenging the District Court’s grant of habeas corpus relief, does not even ask us to reject Judge Lasker’s conclusion that the circumstances were sufficiently suggestive to warrant analysis under the standards of Neil v. Biggers.
On the merits of the issue, I agree with Judge Friendly that some of the police actions criticized by the District Court are relatively innocuous. These include inform*248ing Colon, prior to the identification, that his car had been recovered and displaying the security shield obtained from the car. However, Judge Curtin’s opinion for the panel majority places no reliance on these circumstances. The cardinal circumstance indicating undue suggestiveness is the police action in focusing the witness’s attention on just two males, out of all the people seated in the courtroom.1 Surely a two-man line-up would have been unduly suggestive, and what occurred here was the functional equivalent. Perhaps Officer Dugan’s second and third invitations to the witness to make an identification do not deserve to be called pressure, but such conduct had a suggestive tendency, when coupled with the limitation of viewing to just two males. Of course, the police are entitled to have a witness express his degree of certainty about an identification, but the undisputed facts here go beyond affording such an opportunity. After the witness was able to say at most that the suspect “looks like” and “looked just like” the culprit, the police officer asked, “Is it him or not.” Since the first two responses were more positive than negative, the presentation of absolute alternatives fairly invited an absolutely positive response. We need not decide the significance of such persistent probing when a witness views a properly conducted line-up, but the suggestiveness of the two-man show-up leaves Officer Dugan’s questioning vulnerable to criticism.2
The suggestiveness of the police conduct, however, does not by itself render Colon’s testimony inadmissible. Following the analytical framework of Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), the District Court and this Court conclude only that the circumstances of the identification were sufficiently suggestive to warrant careful consideration of reliability under the criteria identified by the Supreme Court.3 I fully agree with Judge Curtin that such analysis is warranted and that it indicates “a very substantial likelihood of irreparable misidentification,” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). I therefore join Judge Curtin’s opinion.
. The two males, to whom the police directed the witness’s attention, were seated toward the front of the courtroom on the right-hand side “among 15 to 20 people.” People v. Dickerson, 67 A.D.2d 122, 125, 414 N.Y.S.2d 712, 714 (1979). We are not told how many others were seated in the entire courtroom. The State offers no reason why Colon could not have been asked to survey all persons in the courtroom, or, at the very least, the 15 or 20 people at the right front.
. The only other factor cited by Judge Curtin as bearing on suggestiveness is the immediate arrest in the witness’s presence. We have said that a practice of confirming a witness’s identification is not to be encouraged or condoned, but will not preclude subsequent in-court identification if there has been a “strong and unequivocal” out-of-court identification. United States v. Leonardi, 623 F.2d 746, 755 (2d Cir.), cert. denied, 447 U.S. 928, 100 S.Ct. 3027, 65 L.Ed.2d 1123 (1980). Though such was not the case here, I attach little, if any, significance to the witness’s observation of the prompt arrest.
. In Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), the Supreme Court rejected the view formerly held by this Court, Brathwaite v. Manson, 527 F.2d 363 (2d Cir. 1975), that an impermissibly and unnecessarily suggestive identification was inadmissible notwithstanding indicia of reliability. It would be ironical if the Supreme Court’s rejection of a per se rule excluding all suggestive identifications in favor of an examination of the “totality of the circumstances,” 432 U.S. at 110, 97 S.Ct. at 2251, should be transformed into a per se rule admitting all identifications that are only somewhat suggestive, without any need to examine the totality of circumstances bearing on reliability. Perhaps some threshold of suggestiveness must be reached before analysis under the Biggers criteria is required, but surely not the sort of egregiousness that would have warranted exclusion under the now rejected per se approach. As the Court emphasized in Brathwaite, “reliability is the linchpin in determining the admissibility of identification testimony .... Against the [Biggers reliability] factors is to be weighed the corrupting effect of the suggestive identification itself.” Id. at 114, 97 S.Ct. at 2253. Implicit in the Brathwaite approach of balancing factors supporting reliability against suggestiveness is that lesser degrees of suggestiveness may indicate that the balance in many cases will favor admissibility of the identification testimony, but not that the balancing process can be avoided.