Procedural Criminal Law: Criminal Identification and Due Process Standards of Due Process

The Role of Identification in Procedural Criminal Law

Identification is a core component of procedural criminal law, alongside other procedural actions such as stopping and frisking, searching and seizing, and interrogation.
As citizens in the United States, individuals encounter procedural criminal law frequently through various roles, including:
- Being stopped by police.
- Witnessing an event.
- Identifying a suspect or object.
- Participating in a trial as a juror.
This section focuses on the legal concepts, procedures, and critical cases governing how identification is conducted and utilized as evidence.

Major Types of Identification Procedures

Lineup:
- A procedure where a suspect stands in a physical line with other persons (fillers) who are not suspects.
- The witness or victim is then asked to pick out the perpetrator if they are present in the line.
- This is a common depiction of law enforcement identification in movies and television.
Show up:
- A one-on-one identification process where a witness or victim is presented with a single suspect without any other suspects or fillers present.
- Common scenarios for show ups include:
  - Conducted at the scene of the crime immediately after an incident.
  - Having a witness look at a suspect being held in a police cruiser during a drive-by.
  - Conducted at a police station upon a witness's arrival.
- The witness is asked to determine: "Is this the person or not?"
Photo Array:
- A procedure where a witness or victim views multiple photographs or mugshots to identify a suspect.
- If a suspect is identified through this method, it is documented as evidence.
Identification as Evidence:
- Identification functions as evidence similar to physical objects found during a search or statements made during an interrogation.
- It serves to help the prosecution prove that the defendant committed the crime beyond a reasonable doubt.

Challenges to the Reliability of Identification

Memory and Recall Issues:
- Witnesses often struggle to remember specific details like physical appearance, exact time, or context.
- Victims might not be able to recall details with $100\%$ certainty due to the stress of the event.
- Anecdote: The instructor shares a personal experience of being mugged in a driveway years ago after walking a dog. Despite fighting with the perpetrator to get inside the house and calling the police, the instructor could only provide a general description: a younger white man, thin, fit-looking, wearing a down vest. No facial identification was possible because they never looked directly at the person's face.
Suggestive Procedures:
- Identifications can be deemed unreliable if the police use suggestive tactics that point toward a specific person.
- Example: If a perpetrator was wearing a red shirt, and the police place one man in a red shirt in a lineup with several men in yellow shirts, the procedure is overly suggestive.
- Example (Photos): Using a small number of photos (e.g., $1$ out of $3$ ) is more suggestive and less certain than picking a suspect from a larger set (e.g., $1$ out of $20$ ).
Lack of Opportunity to Observe:
- Victims or witnesses may not have been expecting a crime and therefore did not pay close enough attention to the perpetrator's features to provide a reliable identification later.

Legal Protections and the Due Process Standard

Right to Counsel:
- A lawyer can be present at "critical stages" of an investigation to protect the suspect.
- While a show up immediately following an arrest may not be legally considered a critical stage requiring a lawyer, having counsel present later is beneficial.
- A lawyer's role is often to advise the client not to submit to lineups or show ups, thereby preventing the creation of potentially suggestive evidence.
Challenging Identification in Court:
- Identification can be challenged under the standard of Due Process, which evaluates whether the identification was "fair" and "reliable" enough to be admissible.
The Two-Step Test for Due Process:
- Step 1: Was the law enforcement procedure unnecessary and impermissibly suggestive?
  - Courts look at whether the police had to use those specific methods (e.g., showing only $2$ photos instead of $20$ ).
  - If the victim was too ill or injured to wait for a full lineup, a suggestive show up might be deemed "necessary."
- Step 2: The Totality of Circumstances.
  - If the procedure was suggestive, the court evaluates the "totality of circumstances" to determine if the procedure created a "substantial likelihood of misidentification."
  - This is a high legal standard for the defense to meet to have evidence thrown out.

Factors Determining the Totality of Circumstances

To determine reliability under due process, courts assess five primary factors:
1. Opportunity to view the person: How long did the witness see the suspect and under what conditions?
2. Degree of attention: Was the witness paying close attention or just passing by?
3. Accuracy of description: How specific and detailed was the witness's original description? Higher specificity correlates with higher reliability.
4. Level of certainty: How certain is the witness in their identification?
5. Time elapsed: The length of time between the commission of the crime and the identification. Identification immediately after the crime is generally more reliable than identification made $2\text{ weeks}$ later.

Key Case Law and Legal Precedents

US v. Wade ( $1960\text{s}$ ):
- Issue: Wade was identified in a lineup without an attorney present.
- Holding: The Supreme Court held that the period between charging and trial is the most critical stage of a case.
- Rationale: The court had a low opinion of lineups, describing them as "riddled with innumerable dangers and variable facts." Consequently, counsel must be present during a lineup after charges have been filed.
- Note: If the lineup occurs before charges are filed, it is not considered as critical a stage by the Supreme Court.
McFadden v. Cabana ( $1988$ ):
- Issue: A suspect who was $5'6''$ tall was placed in a lineup where everyone else was significantly taller ( $6'6''$ and $6'5''$ ).
- Holding: A high federal court ruled the identification admissible despite the height difference.
- Rationale: The court emphasized reliability. Based on the five factors of the totality of circumstances, the witness was found to be highly reliable, defeating the claim of a substantial likelihood of misidentification.
- Commentary: The speaker uses the Simpsons as a metaphor: even if you put Bart Simpson (referred to as "the son," not Homer) in a lineup where he is clearly different, it doesn't automatically mean the identification is unreliable or overly suggestive if other reliability factors are met.
Neil v. Biggers:
- Context: A significant rape case involving a victim who lived in the country. The crime occurred at night and moved from her kitchen to the woods over a period of $30\text{ minutes}$ .
- Procedure: The victim looked at $30$ to $40\text{ photos}$ over several months without identifying anyone. Eventually, she identified a suspect in a show up where the suspect walked past her and repeated words similar to those spoken during the crime.
- Holding: The Supreme Court held there was no Due Process violation.
- Analysis of Five Factors in Neil v. Biggers:
  1. Opportunity: High; the victim was with the suspect for $30\text{ minutes}$ .
  2. Attention: Very high according to the victim.
  3. Accuracy: The victim claimed she had "absolutely no doubt."
  4. Certainty: The victim testified she would never forget the perpetrator.
  5. Time: Although several months had passed (a potential negative), her reliability was bolstered by the fact that she never identified any other person during previous photo arrays.
- Conclusion: The circumstances showed there was not a substantial likelihood of misidentification.