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In determining that Davis's identification was admissible the lower court stated: "The court's finding is that there is evidence -- I won't say reliable, but I think that's a matter for the jury -- that she can identify them. I don't find it unduly suggestive. I find the issues -- the weight is a matter for the jury." The state Supreme Court found that the lower court did not look at the reliability of Davis's identification in regards to the guidelines established in Neil and did not make a decision that her identification was unfailing, which was an error.

As shown by the record, without Davis's identification, the State's case against Moore was tenuous. Accordingly, the court found error in admitting Davis's identification testimony without first figuring out that her identification was dependable, which was not harmless. Therefore, this case was remand back to the trial court in order to hold a hearing to figure out, under the whole of the circumstances, that the identification of Moore was dependable.

In another case State of Connecticut v. Julian Marquez, No. 17663, 2008, the court proposed that in the influential case of Neil v. Biggers, supra, 409 U.S. At 188, 93 S.Ct. 375, the Supreme Court explained the overarching apprehension that courts face when evaluating a disputed identification procedure. The court said that the primary goal is to avoid a very substantial probability of irreversible misidentification. It is the likelihood of misidentification which infringes a defendant's rights to due process. As courts apply the two-pronged test to decide if a specific identification procedure is so suggestive and untrustworthy as to necessitate suppression, they forever should weigh the pertinent factors against this standard. In other words, an eyewitness identification should be barred on the foundation of the procedure used to extract that identification only if the court is sure that the procedure was so suggestive and otherwise untrustworthy as to give rise to a very considerable probability of irreversible misidentification.