Criminal Procedure: Identification Procedures

Question 1

How does a defendant challenge a pretrial identification procedure?

Answer 1

First argument he can make: Sixth Amendment right to counsel

Second argument he can make: due process violation

Question 2

Challenge a pretrial identification procedure using Sixth Amendment right to counsel

Answer 2

A Sixth Amendment right to counsel exists for post-charge lineups and show-ups but not photo identifications or any other identification mentioned above (like fingerprinting, DNA samples, etc.).

So, if the defendant was not given a right to counsel in a post-charge lineup or show-up, he can challenge it on those grounds.

Question 3

Challenge a pretrial identification procedure using due process violation

Answer 3

A defendant may challenge an identification procedure by saying that it violates the Due Process Clause of the 14th Amendment if:
(1) the procedure is arranged by the police,
(2) so unnecessarily suggestive that it creates a substantial likelihood of irreparable misidentification, and
(3) whether the suggestive procedure was necessary
under the circumstances.

Question 4

Factors taken into account to determine whether there is a substantial likelihood of misidentification

Answer 4