8. Pre-Trial Identification Lineups (14A)

Question 1

How may a suspect attack a pre-trial identification?

Answer 1

Denial of due process

1) Unnecessarily suggestive lineup
- UNLESS exigent circumstances
2) Substantial likelihood of misidentification

Burden of proof => Suspect

Question 2

What is the remedy for an unconstitutional identification?

Answer 2

Apply for suppression hearing => Exclusion of the in-court identification => W can NOT identify D at trial again

Question 3

Are there exceptions denying the remedy for unconstitutional identifications?

Answer 3

Burden of proof => Government

• Independent source (Witness observed D at time of crime)
• Counsel presence at suppression hearing
• D’s waiver of right to counsel

Question 4

Can a suspect refuse to participate in a lineup?

Answer 4

No

- Lineup identification is NOT testimonial (NOT protected by 5A privilege vs self-incrimination)

Question 5

When is a right to counsel allowed in line-ups?

Answer 5

Post-charge line-up

NOT pre-charge line-up

NOT non-live identification

• Examining photographic line-ups
• Fingerprinting
• Photographic arrays

Question 6

What if the police failed to have the defendant’s counsel during the post-charge line-up?

Answer 6

6A violation

- Good faith/Negligence NOT relevant

Question 7

Are any evidence obtained from an unconstitutional line-up admissible?

Answer 7

Out-of-court evidence (line-up evidence) => NOT admissible

In-court evidence (obtained from the out-of-court evidence) => NOT admissible
- UNLESS Prosecution proves reliability