¶1(concurring). I agree with Judge Gillis that the conviction should be affirmed. For the reasons he states eloquently, I further agree that any error was harmless, by any test. However, in my opinion no error occurred.
¶2After he first fired at a deputy, the defendant was shot twice and arrested, ending a chase that began at the store robbed. Because of his gunshot wounds he was in a hospital and later in a cast. A physical lineup was impossible. His wounds delayed his arraignment and a determination that counsel would be appointed.
¶3A few days after the robbery, seven strikingly similar photographs were displayed separately to each eyewitness. The photographic "lineup” was fair and not the least suggestive either in the composition of the display or in the manner it was presented. Each witness decisively picked out the defendant’s photograph.
¶4Following local practice, defense counsel was given a copy of the summary of evidence prepared *424by the police detective in charge. One reason for this is to give counsel an opportunity to present motions before the day of trial. By that written summary, defense counsel knew of the photographic display for more than two months before the trial. Defense counsel also knew that the court scheduled requested suppression hearings after the hours devoted to trials, so that trial time would not be lost.
¶5On the day of trial, witnesses and jurors are present and waiting. Participants in other criminal trials may also be present and waiting. Motions to suppress evidence should be brought before that date. They may require considerable testimony. The court should have time for thought and research and to state his findings. If the motion is granted, and the suppressed evidence is crucial (as in a possession case), the case may be dismissed; the witnesses need not be subpoenaed; and another case can be tried. If suppression is erroneously ordered, the prosecution has a chance to appeal the ruling. Other cases, all entitled to a speedy resolution, cannot be disposed of by trial or plea if another case takes up the court’s limited trial time.
¶6When this trial was to begin at 8:30 a.m., defense counsel, for the first time, moved to suppress in-court identification of defendant by the eyewitnesses. He did not contend that a physical lineup should have been held. The basis of the motion was the absence of counsel at the photographic lineup, although no attorney had been appointed. By coincidence, the day of the trial was the same day on which the Michigan Supreme Court decided People v Franklin Anderson, 389 Mich 155; 205 NW2d 461 (1973).
¶7The trial judge ruled that the motion to sup*425press was not timely and proceeded with the trial. I think his ruling should be upheld.
¶8It is desirable that the time for such motions be clarified by rule or case decision. Federal Rule 12 of Criminal Procedure, to be effective August 1, 1975, provides that such motions (and other motions, requests, defenses and objections specified in Rule 12) must be made before trial and are waived if not raised by a time set by the court. It serves a good purpose, as does proposed Rule 11(e)(5) concerning the time for plea agreements. The uncertainty of whether, on the day set for trial, the defendant will go to trial, plead guilty, make motions, waive a jury or claim that he (or his lawyer) are incompetent creates delay and docket difficulties.
¶9In this case, the photographic lineup was not mentioned at the trial. Defendant did not testify and offered no evidence in his defense. He was positively identified by the witnesses, including the deputy — who did not view any photographs — who had pursued him from the store and who defendant tried to kill.
¶10A motion for a new trial on the armed robbery count (defendant was also convicted of assault with intent to murder the deputy) was made after the conviction when the Franklin Andersoncase, supra, was published. That motion prompted the trial judge to conduct an evidentiary hearing. The testimony of the eyewitnesses and the detective at that hearing clearly and convincingly proved that the trial identification was independent of the photographic lineup and not in the least tainted by it. The presence of counsel could not have made the photographic lineup more fair.
¶11I think the identification testimony was admissible. It would have been error to exclude it. More*426over, the motion to suppress the evidence came too late.
¶12I do not think we must decide what standard of review should be applied when there has been a post-custody photographic showing without counsel. Any standard should take into account the good faith and fairness of the police procedure involved. This includes some consideration of the time period since new police procedures have been required by a court.
¶13Any suppression rule must recognize that truth and accuracy depend upon the jury knowing all relevant, reliable evidence — the information that human logic and insight need to function. If no one asks the victims and witnesses whether defendant was the person whose conduct they observed and have described, jurors will surely wonder why. I have no confidence that suppression of such testimony will produce a more accurate verdict than searching examinations into perceptions before, during and after a crime that bear upon the reliability of an identification. The interest of a victim in the enforcement of laws that his government has enacted for his protection is not to be ignored. I would allow the victim and other eyewitnesses in this case to submit to the jury their identification of the person responsible.
¶14A recent opinion speaks on these concepts in another context; Michigan v Tucker, 417 US 433, 446, 447, 450-451; 94 S Ct 2357, 2365, 2367; 41 L Ed 2d 182, 194, 196-197 (1974):
¶15"Just as the law does not require that a defendant receive a perfect trial, only a fair one, it cannot realistically require that policemen investigating serious crimes make no errors whatsoever. The pressures of law enforcement and the vagaries of human nature *427would make such an expectation unrealistic. Before we penalize police error, therefore, we must consider whether the sanction serves a valid and useful purpose. …
¶16"The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused. Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force. …
¶17"For, when balancing the interests involved, we must weigh the strong interest under any system of justice of making available to the trier of fact all concededly relevant and trustworthy evidence which either party seeks to adduce. In this particular case we also 'must consider society’s interest in the effective prosecution of criminals … ’. These interests may be outweighed by the need to provide an effective sanction to a constitutional right … but they must in any event be valued.”
¶18There is room for these and other practical considerations in the statutory "miscarriage of justice” test of harmless error. The "miscarriage of justice” test does not permit, as suggested, appellate courts to sweep errors "under the carpet”, nor prevent them from acting unless their conscience is shocked. I disagree with the proposition advanced by Judge Gillis that every error in a trial should cause reversal unless it passes the Wichman-Chapman test. If the error was not a violation of a constitutional right and did not deprive the defendant of a substantial right or result in a miscarriage of justice, I am in favor of upholding the conviction.