Police Lineups and Pretrial Identifications
Sixth Amendment Right to Counsel
The Sixth Amendment guarantees the right to counsel in all criminal prosecutions.
The accused has the right to assistance of counsel for their defense.
The Sixth Amendment right to counsel attaches once formal criminal proceedings begin (e.g., after indictment or arraignment).
Attachment of Right to Counsel
The right attaches when formal adversarial proceedings have begun.
This includes preliminary hearings, indictments, informations, arraignments, and preliminary examinations.
Base Rules for Identifications
A defendant is entitled to have counsel present at any post-indictment lineup or show-up where they are required to participate (Wade case and Gilbert case).
Rationale: To ensure that the lineup is conducted fairly and to allow counsel to effectively cross-examine witnesses about the identification.
The right to counsel does not apply to pre-indictment lineups, even if the defendant has been arrested for another unrelated crime (Kirby case).
There is no constitutional right to counsel for identifications before indictment or formal charges.
Lineups Defined
A police lineup is a procedure used to help eyewitnesses identify a suspect.
It involves presenting individuals, including the suspect, to the witness for identification.
Lineups can be live or photographic.
Lineups include the suspect and foils/fillers who resemble the suspect in terms of race, height, weight, age, and overall appearance.
Fillers should match the general description of the perpetrator, not necessarily match the suspect exactly.
Types of Identification Procedures
Corporeal (In-Person) Identification
This typically involves a live lineup.
The suspect is presented in person along with other individuals who resemble them.
The eyewitness is asked to identify the accused from the lineup.
Lineups usually take place in police stations.
Suspects generally have a Sixth Amendment right to counsel present during a post-indictment live lineup.
The attorney's role is to observe and ensure fairness, not to disrupt the process.
Show-Ups
A show-up occurs when a witness or victim is confronted with only one person.
It may occur at the police station or in the field, even at the crime scene.
Crime scene show-ups are likely when police apprehend a suspect shortly after the alleged crime.
Suspects do not have a right to counsel present during a show-up identification in the field, especially if it is pre-indictment.
Rationale: The immediacy of the identification is important, and delaying for counsel could diminish the reliability.
Non-Corporeal (Not In-Person) Identification
This involves presenting a witness with a non-physical representation of the suspect (e.g., a photograph or police sketch).
The question posed is, "Is this the person who committed the crime?"
Photo Arrays (Photo Lineups)
A series of photographs including the suspect and similar-looking individuals are shown to the witness.
Generally, there is no right to counsel during a photo array procedure, regardless of when it's conducted (pre- or post-indictment) (US v. Ash case, 1973).
Rationale: The presence of counsel is not required because photo arrays can be preserved and reviewed later, reducing the risk of suggestiveness.
Fifth vs. Sixth Amendment Rights
Fifth Amendment
The Fifth Amendment privilege against self-incrimination primarily protects against compelled testimony or communications.
It does not protect against compelled acts that produce non-testimonial evidence, such as appearing in a lineup, providing blood/DNA samples, handwriting samples, or performing physical movements.
Schmerber v. California: The Court held that the extraction and analysis of a blood sample did not violate the Fifth Amendment because it was not testimonial.
Sixth Amendment and Fourteenth Amendment
The Sixth Amendment (right to counsel) and the Fourteenth Amendment (due process) are relevant to identifications.
Suspects can be cited for contempt for refusing to participate in a lineup because it is not protected under the Fifth Amendment.
The prosecution may comment on a suspect's refusal, which can be considered circumstantial evidence of guilt.
Exclusion Under the Sixth Amendment
Any identification without the presence of counsel at a critical stage (e.g., lineup or show-up) must be excluded from evidence.
The reason is to ensure a fair trial, allowing counsel to observe the lineup, cross-examine witnesses, postpone the identification, or ensure circumstances are less prejudicial.
If the identification is tainted, it may be excluded under the exclusionary rule.
Biases in Police Lineups
Police lineups can have implicit biases that affect eyewitness recall.
Foil Bias
How much the foils (other individuals in the lineup) resemble the suspect.
Fillers should be similar to the suspect but not so similar that the witness cannot differentiate.
Instruction Bias
How much the instructions given to the eyewitness influence their choice.
Instructions should state that the perpetrator may or may not be present in the lineup.
The administrator should be blind to the suspect's identity to avoid giving cues.
Presentation Bias
Whether persons are presented sequentially or in a group can affect the outcome.
Sequential presentation (one at a time) reduces the likelihood of relative judgment.
Simultaneous presentation (all at once) may encourage witnesses to select the individual who looks most like the perpetrator relative to the others.
Fourteenth Amendment Due Process Limitations
There are Fourteenth Amendment due process limitations on identifications in addition to the Sixth Amendment right to counsel.
The due process clause requires the exclusion of pretrial identification evidence if the police procedure was (Stovall case, 1967): unnecessarily suggestive and conducive to mistaken identification.
This two-part test applies regardless of whether the identification was corporeal or non-corporeal, before or after formal charges, and whether counsel was present.
Factors to Analyze Suggestiveness
The opportunity of the witness to view the criminal at the time of the crime.
The witness’ degree of attention.
The accuracy of the witness’ prior description of the criminal.
The level of certainty demonstrated by the witness at the confrontation.
The length of time between the crime and the confrontation.
Factors for Admissibility of Identification Testimony
Factors to consider include (Manson v. Braithwaite, 1977):
Length of time of the victim's exposure to the assailant.
How much time there was to view the assailant.
The personal nature of the crime.
The attention given by the witness.
The certainty expressed by the witness.
Length of time between the crime and the identification.
One-Man Show-Ups
Generally, one-man show-ups are unduly prejudicial and disfavored unless exigent circumstances are shown (Walker v. Daniel, 1967).
A show-up is a procedure where police present a single suspect for identification, often shortly after the crime.
Show-ups are inherently suggestive because the witness knows whom the police have targeted.
A tainted out-of-court identification does not automatically invalidate a subsequent in-court identification if the in-court identification is based on an independent source of recollection (State v. Lawson, 2012).
The government must demonstrate that the in-court identification is not a product of the tainted out-of-court procedure.
Independent Source Doctrine: Even if the pre-trial identification is suppressed, an in-court identification is permissible if it stems from a source independent of the suggestive pre-trial identification.
Reliability of Identifications
Factors to consider in the reliability of an identification:
The opportunity the witness had to view the perpetrator.
The witness's level of attention during the crime.
The accuracy of the witness's prior description.
The witness's level of certainty during the out-of-court identification.
The length of time between the crime and the identification.
Even if a police procedure is suggestive, an identification is admissible if, under the totality of the circumstances, it is deemed reliable (Neil v. Biggers, 1972; cited in Manson v. Braithwaite).
Conclusion
The Sixth Amendment protections and the Fourteenth Amendment due process protections are crucial in assessing criminal procedure problems related to identifications.