§ 12.01 Right to Counsel at Line-ups

 

An accused has a Sixth Amendment right to have counsel present at any corporeal identification procedure conducted after the commencement of an adversary judicial criminal proceeding against him. This rule is known as the Wade-Kirby doctrine.  United States v. Wade, 388 U.S. 218 (1967) (recognizing that a person is entitled to the assistance of counsel at all critical stages of a criminal proceeding, and determining that the pretrial exhibition of a suspect to a witness for identification purposes is a critical stage of the prosecution); Kirby v. Illinois, 406 U.S. 682 (1972) (the right to counsel does not apply to pre-indictment eyewitness identification).

 

If counsel is not present at the post-indictment lineup, and the accused has not waived counsel, results of the out-of-court identification are inadmissible.  In such cases, the prosecution is furthermore precluded from obtaining an in-court identification of the accused by the same witness, unless it proves by clear and convincing evidence that the in-court identification does not constitute fruit-of-the-poisonous-tree evidence.  Among the factors that may be considered are:

·        the prior opportunity of the witness to observe the alleged criminal act.

·        the existence of any discrepancy between any pre-lineup description and the defendant's actual appearance.

·        any identification prior to lineup of another person.

·        the identification by picture of the defendant prior to the lineup.

·        failure to identify the defendant on a prior occasion.

·        the lapse of time between the crime and the lineup identification.

 

Distinguished from in-person line-ups are “mug shots.”  The Sixth Amendment does not apply where the police present photographs, including a photograph of the accused, to an eyewitness for possible identification of the perpetrator.  Such a display, although it occurs after indictment, is not a critical stage of the prosecution.  United States v. Ash, 413 U.S. 300 (1973).

 

§ 12.02 Reliability of Identification Procedures

 

Evidence of a pretrial identification of the accused must be excluded from trial if, based on the totality of the circumstances, the procedure used to obtain the identification was (1) unnecessarily suggestive; and (2) conducive to mistaken identification.  Stovall v. Denno, 388 U.S. 293 (1967).  This rule applies regardless of whether the identification was corporeal or non-corporeal, occurred before or after formal charges were initiated, and whether or not counsel was present.

 

Where pretrial eyewitness identification is deemed unnecessarily suggestive and unreliable, the witness is precluded from making an in-court identification of the accused unless the prosecution proves that the out-of-court identification procedure did not create “a very substantial likelihood of irreparable misidentification.”  Simmons v. United States, 390 U.S. 377 (1968).  

 

            [1] Unnecessarily Suggestive

 

In some cases, the identification procedure may in fact be suggestive – e.g., showing a single suspect to an eyewitness, or presenting the suspect in handcuffs – but under the circumstances, the identification procedure is deemed necessary.  In Stovall, the Court found “suggestive” the police action of bringing to the hospital a single African-American suspect, who was handcuffed to an officer, for identification by a stabbing victim.  Nevertheless, the Court concluded that the procedure was necessarily suggestive, as the police were unsure if the victim would survive long enough to view a later line-up. 

 

            [B] Conducive to Mistaken Identification

 

Even if an identification procedure is unnecessarily suggestive, the identification procedure must also have been unreliable in order to exclude the evidence. Manson v. Brathwaite, 432 U.S. 98, 114 (1977). The relevant factors in determining reliability include:

·        the opportunity of the witness to view the perpetrator at the time of the crime.

·        the witness' degree of attention.

·        the accuracy of the witness' prior description of the perpetrator.

·        the level of certainty demonstrated by the witness at the confrontation.

·        the length of time between the crime and the confrontation.