Chapter Ten – Lineups and Other Means of Pretrial Identification Rolando V. del Carmen

Lineups and Other Means of Pretrial Identification The Right to Counsel during Lineups No right to counsel prior to a formal charge Kirby v. Illinois (1972) Right to Counsel Applies After Formal Charge The Wade-Gilbert Rule: rule that a suspect formally charged with a crime has a Sixth Amendment right to an attorney at lineup.

Lineups and Other Means of Pretrial Identification The Right to Counsel during Lineups The role of the lawyer during the lineup There is no right to counsel when the prosecution seeks to identify the accused by displaying photographs to witnesses prior to trial. United State v. Ash (1973)

Lineups and Other Means of Pretrial Identification The Right to Due Process Applies Identification procedures must be fair. To determine whether the procedure was fair, courts consider all the circumstances leading up to the identification. Courts will find unfairness only when, in the light of all such circumstances, the identification procedure is so suggestive as to give rise to a real and substantial likelihood of irreparable misidentification. The courts will most likely take the following factors into account: (1) the witness’s opportunity to view the criminal at the time of the crime, (2) the witness’s degree of attention at that time, (3) the accuracy of any prior description given by the witness, (4) the level of certainty demonstrated by the witness at the identification, and (5) the length of time between the crime and the identification.Neil v. Biggers (1972)

Lineups and Other Means of Pretrial Identification No Right against Unreasonable Searches and Seizures The removal of blood from a suspect without his or her consent to obtain evidence is not a violation of any constitutional rights, as long as the removal is done by medical personnel using accepted medical methods.Schmerber v. California (1966) No Right against Self-Incrimination Does not extend to physical self-incrimination

Lineups and Other Means of Pretrial Identification Showups Right to Counsel No Right to Counsel Prior to the Filing of a Formal Charge Right to Counsel Applies After Formal Charge Right to Due Process Applies Holding the showup of a suspect in a hospital is valid when the only living eyewitness is in danger of dying.Stovall v. Denno (1967) No Right against Self-Incrimination

Lineups and Other Means of Pretrial Identification Photographic Identifications No Right to Counsel Right to Due Process Applies Simmons v. United States (1968) Manson v. Brathwaite (1977) No Right against Unreasonable Searches and Seizures No Right against Self-Incrimination

Lineups and Other Means of Pretrial Identification Table 10.1 Summary of Eyewitness Identification and Suspects’ Constitutional Rights Right to Counsel? Right to Due Process? Right against Unreasonable Search and Seizure Right against Self-Incrimination Lineups Yes: if formal charge No, if no formal charge Yes No Showups Photographic Identification

Lineups and Other Means of Pretrial Identification Problems with Eyewitness Identification “Hopelessly Unreliable” No Prescribed Guidelines

Lineups and Other Means of Pretrial Identification Other Means of Identifying Suspects Polygraph Examinations: Results Not Admissible in Court A prohibition against the admissibility in court of polygraph evidence in favor of a defendant does not violate his or her constitutional right to present a defense. United States v. Scheffer (1998)

Lineups and Other Means of Pretrial Identification Other Means of Identifying Suspects Breathalyzer Tests: Results Admissible Handwriting Samples: Results Admissible United States v. Mara (1973) Hair Samples: Results Admissible