concurring:
Although I concur in Judge NEBEKER’s opinion (except for several sentences discussed at the end of this concurrence), I do not believe that it spells out clearly enough the relationship of this case to our analysis in Patterson v. United States, D.C.App., 384 A.2d 663 (1978)—and especially to the procedures we outlined there. Thus, a few more words are in order.
In Patterson, supra, we reviewed the constitutionality of a proposed in-court identification after the prosecutor had shown the victim several photographs of the accused on the morning initially set for trial. We held that there was no likelihood of irreparable misidentification, despite the use of refresher photos, because the victim’s initial identification of the accused had been “unequivocal” and “unsuggested.” Id. at 667. The victim had seen his assailant on the street soon after the crime and, without hesitation, had pointed him out to the police.1
The present case is different. It concerns a typical, inherently suggestive showup. The police had apprehended the accused before the victim pointed him out, not vice versa as in Patterson, supra. The victim’s initial reaction, moreover, was equivocal (although she became more certain of her identification as she came closer to the accused). Later, at the suppression hearing, the victim candidly admitted that she did not know whether her ability to identify appellant in court would be due to the refresher photo or to her encounter at the showup scene.
At the suppression hearing the trial court concluded, first, that despite the suggestiveness of the showup procedure and some equivocation by the witness, these factors “did not render the [showup] identification unreliable or make a substantial likelihood of misidentification.” [Tr. at 78.] The court accordingly denied the motion to suppress the initial showup identification.
Next, as to the proposed in-court identification, the court conducted the “two-stage inquiry” called for in Patterson, supra at 665:
(1) Was the identification procedure “unnecessarily suggestive and conducive *932to irreparable misidentification”? [Stovall v. Denno, 388 U.S. 293, 302 [, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967)];
(2) If so, given the “totality of the circumstances,” was the resulting identification reliable nonetheless? Manson v. Brathwaite, [432 U.S. 98 [, 97 S.Ct. 2243, 53 L.Ed.2d 96] (1977); Neil v. Biggers, 409 U.S. 188, 199 [, 93 S.Ct. 375, 34 L.Ed.2d 401] (1972); see Simmons v. United States, 390 U.S. 377, 384 [, 87 S.Ct. 1926, 18 L.Ed.2d 1149] (1968).]
Before evaluating the trial court’s analysis, however, we should understand clearly why this two-stage inquiry is necessary, prior to an in-court identification, when the initial identification (showup, photo array, lineup) may be suppressible for suggestiveness or equivocation. See Patterson, supra at 668 n.7.2
If the witness has seen a refresher photo and the trial court has suppressed the initial (e. g., showup) identification, then the initial identification procedure has been found “unnecessarily suggestive and conducive to irreparable misidentification” (Patterson stage one). Thus, before any in-court identification can be made, the court must find it “reliable nonetheless” under the “totality of the circumstances” (Patterson stage two). If, on the other hand, the witness has seen a refresher photo but the trial court has not suppressed the initial identification (as in the present case), then the trial court should still conduct the stage two inquiry, for if the appellate court were to disagree and hold that the initial (e. g., showup) identification should have been suppressed for suggestiveness or equivocation, there would then be an alternative trial court finding as to whether the in-court identification will be “reliable nonetheless” and thus admissible; i. e., whether there is an “independent source” for the in-court identification. Patterson, supra at 666 n.2.3
But what if the trial court denies the motion to suppress the initial identification, finding it constitutionally acceptable — and the appellate court agrees? We then have the two questions presented by this case: whether, from the constitutional and evi-dentiary perspectives, the in-court identification, after a refresher photo, is admissible.
The trial court here did not distinguish between these two perspectives, perhaps because the court read Patterson, supra, to say, by implication, that unless the initial identification is “unequivocal and unsug-gested” (as it was in that case), an in-court identification should be automatically suppressed — on constitutional grounds — if the totality of the circumstances indicate that the witness, after seeing a refresher photo, does not have an independent basis for recollecting and thus identifying the accused. See Patterson, supra at 668 & n.7. We did not mean to create that impression. We intended, rather, to suggest that unless the initial identification was unequivocal and unsuggested — which, as in Patterson, would be a rare situation — the court should make the two-stage inquiry for the reasons elaborated above. We also intended, because of the facts of Patterson, to leave open the question central to United States v. Hines, 147 U.S.App.D.C. 249, 455 F.2d 1317, cert. denied, 406 U.S. 975, 92 S.Ct. 2427, 32 L.Ed.2d 675 (1972), which is now squarely presented in this case: once an initial identification, such as a showup, is held to be *933“constitutionally acceptable” and thus admissible, despite elements of suggestiveness and equivocation, can a later in-court identification by the witness, whose memory is refreshed by a photograph of the accused just before trial, be suppressed on constitutional grounds? We answer “no.” Although the refreshment procedure was “unnecessarily suggestive,” it was not “conducive to irreparable misidentification,” given the constitutionally acceptable showup. Hines, supra, 147 U.S.App.D.C. at 262-63, 455 F.2d at 1330-31; Patterson, supra, 384 A.2d at 666, 667. Thus, for constitutional purposes, the appellate court need not review the trial court’s stage two, “reliability” (i. e., “independent source”) analysis; the in-court identification is to be permitted by virtue of the acceptable initial identification, although defense counsel is free to argue to the jury that the “refreshed” identification lacks credibility. Patterson, supra at 667.
But that does not end the inquiry, for as Judge Nebeker’s opinion stresses, ante at -, the trial court must next consider whether an in-court identification may be inadmissible on evidentiary grounds as “so inherently weak or unreliable as to lack probative value.” Sheffield v. United States, D.C.App., 397 A.2d 963, 967 (1979). See Reavis v. United States, D.C.App., 395 A.2d 75, 78 (1978); Patterson, supra, 384 A.2d at 668 n.7. Recently, we noted that “[tjhere is often considerable delay between initial identification and trial . . . .” Jackson v. United States, D.C.App., 395 A.2d 99, 105 (1978). Moreover, the government itself, in opposing a defense motion for a lineup near the trial date, has acknowledged that
by waiting until a long period after the event occurred, as it occurred in the instant case, it is much more likely that the witness is not going to be able to make an identification. [Id.]
It follows, therefore, that even when the initial identification (showup, photo array, or lineup) is admissible through testimony, for example, by a police officer, the proposed in-court identification must be carefully scrutinized under the rules of evidence, especially when the witness admits that present memory has faded and a refresher photo has been used. Accordingly, the stage two “reliability” inquiry — the “totality of the circumstances” — still has an evidentiary, if not a constitutional significance when the initial (e. g., showup) identification is admissible.
Because it is unclear in the present case whether the trial court barred an in-court identification solely on constitutional or also on evidentiary grounds — and because there can be no constitutional bar once the initial identification has been found constitutionally acceptable — we remand for an evidentia-ry ruling on the proposed in-court identification. Ante at 930-931.4
Once this court had disposed of the constitutional question and remanded the case for a ruling on evidentiary grounds, that should have ended the matter. The majority opinion, however, adds some conflicting signals to the trial court on the anticipated evidentiary ruling, despite admitting that there is no factual basis for doing so. More specifically, Judge NEBEKER writes: “As to the facts as they are before us here, we question whether the proposed identification testimony was so weak and unreliable as to be kept from the jury.” Ante at 930. Four sentences later, however, he confirms: “As stated, in view of our ruling on constitutional grounds, we have no facts to which we may apply the law of evidence and, therefore, only restate it.” Ante at 931 (emphasis added). The trial judge should read the majority opinion to hold that he is free to make an independent determination of the evidentiary value of *934the proposed in-court identification. See Sheffield, supra, 397 A.2d at 967; Reavis, supra, 395 A.2d at 78; Patterson, supra, 384 A.2d at 668 n.7 quoted in note 2 supra.
. Specifically, we stated:
It may well be true that the lapse of time between robbery and trial dimmed Mr. Holmes’ memory of the suspects and that the single-photo displays helped bring his memory back. Nevertheless, as recent Supreme Court cases have made clear, these suggestive showings could not have created a “very substantial likelihood of irreparable misiden-tifícation.” Simmons, supra, 390 U.S. at 384, 88 S.Ct. at 971 (emphasis added). See Neil, supra, 409 U.S. at 198, 93 S.Ct. 375. At worst, the “refresher” photos produced a misleadingly current, positive identification derived from a previously untainted one. Just as a procedure devoid of suggestion cannot yield the “primary evil” of misidentification, id., a procedure that includes suggestive elements subsequent to an unequivocal, un-suggested identification does not pose an unconstitutional risk of misidentification — of trying and convicting the wrong person. [Patterson, supra 384 A.2d at 666-67.]
. In Patterson, supra at 668 n.7, we stated: We encourage trial courts to conduct the usual two-step inquiry as a precaution in all cases which are ambiguous; i. e., where there is some evidence that the initial identification may have been equivocal or suggested. Moreover, we do not intend to limit trial courts’ discretion to exclude evidence in cases where the peril of misidentification is a possibility. We agree with the D.C.Circuit Court of Appeals that the Supreme Court
has formulated a broad standard of review which focuses upon the distinctive facts of each case in their totality, and which relies very heavily upon the special capacity and experience of judges, trial and appellate, to discriminate between real and fancied dangers of the miscarriage of justice. [Clemons v. United States, supra [133 U.S.App.D.C. 27] at 34, 408 F.2d [1230] at 1237.]
. The two-stage inquiry is also necessary when there has been no initial identification, other than by reference to a refresher photo, prior to the proposed in-court identification. See United States v. Dailey, 524 F.2d 911, 914-16 (1975).
.- There is a subtle difference between a proposed in-court identification of the accused as the person “identified at the showup scene” and such identification of the accused as the person observed during commission of the crime. See Jackson, supra at 105-06 & n.12. This should be kept in mind as the government proffers and the trial court rules on the proposed identification.