United States of America Ex Rel. Lee Royal Fisher 46690 v. Thomas Driber, Acting Principal Keeper, Trenton State Prison

OPINION OP THE COURT

ALDISERT, Circuit Judge.

The central question for decision is whether one who makes a timely and non-frivolous motion to suppress in-court identification testimony at a state criminal trial on the ground that it has been tainted by improper pre-trial identification procedures is entitled to have the motion heard and determined by the trial court outside the presence of the jury. After considering a habeas corpus petition which was based on the theory that impermissibly suggestive identification testimony was admitted at a state trial, the district court denied the petition.…