Criminal Evidence 6th Edition Chapter 10 Exclusionary Rule— Identification Procedures Criminal Evidence 6th Edition Norman M. Garland

Identification Procedures and the Right to Counsel The Sixth Amendment to the Constitution states, in part: “In all criminal prosecutions, the accused shall . . . have the assistance of counsel for his defense.” © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Identification Procedures and The Exclusionary Rule Both pretrial and in-court identifications may be inadmissible if a defendant’s Fourth, Fifth, Sixth, or Fourteenth Amendment rights were violated during the investigative identification procedure. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

The Three Basic Types of Identification Procedures Show Ups: one-on-one presentation of a suspect to a victim or witness. Lineups: presentation of similar looking persons to a victim or witness. Photographic Arrays: presentation of a number of photos. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

The Right to Counsel: A Fundamental Right The United States Supreme Court has held that the right to counsel at trial is a fundamental right. This right applies to the states through the Fourteenth Amendment Due Process Clause whenever a defendant’s trial may result in incarceration. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

The Critical Stage Test for the Right to Counsel As early as 1932, the United States Supreme Court observed that “the period from arraignment to trial was ‘perhaps the most critical period of the proceedings . . .’ during which the accused ‘requires the guiding hand of counsel . . . if the guarantee is not to prove an empty right.’” Powell v. Alabama, 287 U.S. 45, 57, 59 © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

What is a critical stage? A critical stage begins at the initiation of an adversarial judicial proceeding, whether by way of a formal charge, preliminary hearing, indictment, information, or arraignment. Any pretrial event requiring the presence of counsel can be a critical stage, analogous to a trial, where the accused may be overpowered by his or her professional adversary. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

The Test to Determine a Critical Stage The test of a critical stage is whether at "the trial itself . . . no substitute for counsel” can be provided to a defendant in the event that “a pretrial confrontation is conducted in the absence of counsel.” United States v. Ash, 413 U.S. 300 (1973) © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

United States v. Wade: Source of Right to Counsel at Pretrial Lineup The Court held that the post-indictment lineup is a critical stage of the prosecution at which the accused is as much entitled to the aid of counsel as at the trial itself. The Wade decision extended the exclusionary rule to post-indictment pretrial lineups, where a defendant has been denied his or her Sixth Amendment right to counsel. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

When Counsel Need Not Be Present: First Case If a defendant has not been formally charged with a criminal offense, he or she is not entitled to the assistance of counsel at an identification proceeding. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

When Counsel Need Not Be Present: The Second Case When a suspect, who has not been indicted or otherwise formally charged, is placed in a lineup, counsel need not be present. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Identification Procedures and Due Process Even if no violation of the right to counsel exists, an identification may still be excluded. The core of the issues relating to misidentification are the Due Process Clauses of the Fifth and Fourteenth Amendments. These clauses preserve the right to a fair trial. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Effect of Illegal Pretrial Identification on In-Court Identification It is possible for an out-of-court identification to be illegal while the identification made at trial is admissible. On the other hand, if the in-court identification is so influenced by the illegal out-of-court identification as to be a product of it, then the in-court identification will not be admissible either. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

The Test to Consider The test is whether or not the in-court identification is sufficiently free of the taint from the out-of-court identification to be trustworthy. Moreover, any case involving a legally questionable pretrial identification inevitably involves the question of whether or not the in-court identification should be admitted. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Only Unnecessarily Suggestive Pretrial Identifications Are Illegal The question is whether, under the totality of the circumstances, the identification procedure was unnecessarily suggestive. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Stovall v. Denno Issues of Suggestiveness in Identification Apart from Right to Counsel The Court held that a pre- or post-indictment identification procedure that is unnecessarily suggestive and conducive to irreparable mistaken identification violates the due process rights of an accused. To determine when an identification procedure is unnecessarily suggestive, the Court stated that “a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it.” © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Neil v. Biggers 5-Factor Test for Suggestive Identification Cases The opportunity of the witness to view the criminal at the time of the crime. The witness’s degree of attention. The accuracy of the witness’s 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. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Types of Suggestive Identification Procedures Size of the Lineup or Array Collaboration Between Witnesses Police Instructions or Statements to Witnesses Make-Up of the Lineup or Photo Array Different Appearance of the Accused Other Suggestive Procedures Pertaining Solely to Photo Arrays © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

An Exception Even though the use of a single photograph or show-up is highly suggestive, the court will nonetheless justify its use in certain emergency or exigent circumstances, such as when the witness is in danger of dying. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Police Instructions or Statements to Witnesses Officers should not tell a witness that the photo array or the lineup includes a defendant already in custody since the witness may then be more likely to choose the person who most closely resembles the person they observed, rather than selecting no one at all. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Different Appearance of the Accused The most important thing in creating a lineup or photo array is that the lineup or array includes persons matching the defendant’s general physical description. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

The Test “The test is whether the photograph of the accused, [or the defendant himself in a lineup], matching descriptions given by the witness, so stood out from all the other photographs as to suggest an identifying witness that that person was more likely to be the culprit . . . .” U.S. v. Jakobetz “The individuals in the photographic display and lineup [should be] of the same race, possess similar physical features, and be alike in size, age, and dress.” Salam v. Lockhart © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Other Suggestive Procedures Pertaining Solely to Photo Arrays Different Type or Quality of Photos Contents on and Around the Photographs Alteration and Disguise of the Photographs © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Determining the Reliability of a Suggestive Identification The five factors of the Biggers case. Is the identification clothed with indicia of reliability? Are there facts indicating an identification is reliable? © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

What contributes the reliability? The longer the witness’s opportunity to view the offender. The greater attention to the offender at the time of the offense. The more detailed the initial description from the witness. The greater the certainty demonstrated by the witness. The shorter the length of time between the crime and the lineup. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Biggers—The First Factor: The Witness’s Opportunity to View the Criminal at the Time of the Crime The general rule is that if the witness had a good opportunity to view the defendant, then even if the pretrial identification was suggestive, it will be admissible because the viewing opportunity provided an independent basis for the identification. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Biggers—The Second Factor: Witness’s Degree of Attention The second factor is whether the degree of attention the witness paid to the suspect during the event was sufficient that one could say that the witness’s ability to identify the accused in court was based on the independent identification and not upon an unnecessarily suggestive identification procedure before trial. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Police and the Second Factor of Biggers Police officers pay a higher degree of attention to details than a lay witness because of the special training they receive in observational techniques. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Biggers—The Third Factor: Accuracy of the Description There is no set rule for determining how accurate an initial description of the defendant must be in order to find an independent basis to show the identification was reliable. The courts tend to look at whether or not the witness was able to approximate the defendant’s age, build, height, weight, skin color, clothing, and any other physical characteristics. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Biggers—The Fourth Factor: Level of Certainty Demonstrated by the Witness at the Confrontation There are two issues surrounding the certainty of a witness: The degree of certainty required to support the admissibility of an identification. The point at which the witness became certain. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Biggers—The Fifth Factor: Length of Time Between the Crime and the Confrontation The shorter the time interval between the crime and the identification, the more reliable it is. Nonetheless, a long interval alone is usually not enough to invalidate an otherwise seemingly reliable identification. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Eyewitness Evidence: A Guide for Law Enforcement In 1999, the U.S. Department of Justice released the Guide that suggested ways in which eyewitness testimony can become more reliable. In 2001, New Jersey was the first state to adopt the recommendations, which include suggestions on: Use and presentation of fillers in a lineup Witnesses instruction on viewing a lineup Viewing of photos by a witness Instructions to all present at a lineup to avoid influencing the witness selection © 2011 The McGraw-Hill Companies, Inc. All rights reserved.