Eyewitness Identification Flashcards
If identification is infected by improper police influence, is it automatically excluded?
See Perry v. New Hampshire (U.S. 2012) on p. 809
NO. Instead, the trial judge must screen the evidence for reliability pretrial. If there is a “very substantial likelihood of irreparable misidentification,” the judge must disallow presentation of the evidence at trial. But if the indicia of reliability are strong enough to outweigh the corrupting effect of the police-arranged suggestive circumstances, the identification evidence ordinarily will be admitted, and the jury will ultimately determine its worth.
What triggers 14th Amendment Due Process Clause concerns in the context of eyewitness identification?
Police use of an unnecessarily suggestive identification procedure, whether or not they intended the arranged procedure to be suggestive.
NOTE 1: The Constitution protects a defendant against a conviction based on evidence of questionable reliability—NOT by prohibiting introduction of the evidence—but by affording the defendant means to persuade the jury that the evidence should be discounted as not credible.
NOTE 2: ONLY WHEN evidence is “so extremely unfair that its admission violates fundamental conceptions of justice” has SCOTUS imposed a constraint tied to the Due Process Clause.
When a witness identifies the defendant in a police-organized photo lineup, when should identification be suppressed?
See Simmons v. United States (U.S. 1968) on p. 813
ONLY WHERE “the photographic identification procedure was so unnecessarily suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”
NOTE: Satisfied that the photo array used by the FBI agents in Simmons was necessary and unlikely to have led to a mistaken identification, SCOTUS rejected the defendant’s DP challenge to admission of the identification.
What is the Biggers-Brathwaite rule to determine whether the DP Clause requires suppression of eyewitness identification tainted by police arrangement?
SCOTUS emphasized first that DP concerns arise ONLY WHEN law enforcement officers use an identification procedure that is SUGGESTIVE and UNNECESSARY. Even when police use such a procedure, suppression of the resulting identification is NOT the inevitable consequence.
Rather than a per se exclusionary rule, the DP Clause requires courts to assess—on a case-by-case basis—whether improper police conduct created a SUBSTANTIAL LIKELIHOOD of misidentification. “Reliability of the eyewitness identification is the linchpin” of that evaluation. Where the “indicators of a witness’ ability to make an accurate identification” are “outweighed by the corrupting effect” of law enforcement suggestion, the identification should be suppressed. Otherwise, the evidence should be submitted to the jury.
NOTE 1: The DP check for reliability—Brathwaite made plain—comes into play after the defendant establishes IMPROPER police conduct. The very purpose of the check was to avoid depriving the jury of ID evidence that is reliable, DESPITE improper police conduct.
NOTE 2: A primary aim of excluding ID evidence obtained under unnecessarily suggestive circumstances is to DETER law enforcement use of improper lineups, showups, and photo arrays.
What factors are considered in evaluating a witness’ ability to make an accurate identification?
See Biggers-Brathwaite rule on p. 813, n.5
- The opportunity of the witness to view the criminal at the time of the crime
- The witness’ degree of attention
- The accuracy of his prior description of the criminal
- The level of certainty demonstrated at the confrontation and…
- The time between the crime and the confrontation
NOTE 1: Applying this, “totality of the circumstances” approach SCOTUS held in Biggers that police’s use of an unnecessarily suggestive lineup did NOT require suppression of the victim’s ID her assailant. Despite the improper procedure, the victim’s ID was reliable; she saw her assailant for a considerable period of time in adequate light, provided police with a detailed description of her attacker long before the show up, and had “no doubt” that the defendant was the person she had seen.
NOTE 2: Similarly, SCOTUS concluded in Brathwaite that police use of an unnecessarily suggestive photo array did NOT require exclusion of the resulting ID. The witness—an undercover cop—viewed the defendant in good light for several minutes, provided a thorough description of the suspect, and was certain of his ID. Hence, the “indicators of the witness’ ability to make an accurate ID were hardly outweighed by the corrupting effect of the challenged ID.”
Does the DP Clause require a trial judge to conduct a preliminary assessment of the reliability of an eyewitness identification made under suggestive circumstances NOT ARRANGED by police?
See Perry v. New Hampshire (U.S. 2012) on p. 816-17
NO. The DP Clause does NOT require a preliminary judicial inquiry into the reliability of an eyewitness ID when the ID was NOT procured under unnecessarily suggestive circumstances arranged by law enforcement.
RATIONALE:
- The jury, not the judge traditionally determines reliability of evidence
- The defendant’s right to the effective assistance of an attorney, who can expose the flaws in the eyewitness’ testimony
- The constitutional requirement that the government must prove the defendant’s guilty beyond a reasonable doubt
- FRE 403 balance test
- Some states allow defendants to present expert testimony on the hazards of eyewitness ID evidence
Does requiring a person to participate in a lineup violate the Fifth Amendment privilege against compulsory self-incrimination?
See United States v. Wade (U.S. 1967) on p. 794, n. a
NO — this provision ONLY bars evidence of TESTIMONIAL or COMMUNICATIVE nature.
Is COURTROOM identification of an accused criminal AT TRIAL excluded from evidence IF the accused was exhibited to the witnesses before trial at a POST-INDICTMENT lineup conducted for identification purposes without notice to and in the absence of the accused’s counsel?
See United States v. Wade (U.S. 1967)
YES. In Wade, SCOTUS held that since it appeared that there was a grave potential for prejudice—intentional or not—in the pretrial lineup, which may not be capable of reconstruction at trial, and since the presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there could be “little doubt” that for Wade the post-indictment lineup was a critical stage of the prosecution at which he was “as much entitled to such aid of counsel as at the trial itself.” Thus, both Wade and his counsel should have been notified of the impending lineup, and counsel’s presence should have been a requisite to conducting the lineup, absent an “intelligent waiver.”
How did SCOTUS answer the question of whether the denial of Wade’s motion to strike the courtroom identification by the bank witnesses at trial—because of the absence of his counsel at the lineup required—the grant of a new trial at which such evidence was to be excluded?
SCOTUS did not think granting a new trial and excluding the evidence could be justified without first giving the government an opportunity to establish by CLEAR AND CONVINCING evidence that the in-court IDs were based upon observations of the suspect OTHER THAN the lineup ID.
NOTE 1: SCOTUS followed up by saying the proper test to be applied in this situation derives from the Wong Sung case: “Whether, granting objection is made has been come at by the exploitation of that illegality or instead by means of sufficiently distinguishable be purged of the primary taint.” Application of this test requires consideration of various factors; (1) the prior opportunity to observe the alleged criminal act, (2) any discrepancy between any pre-lineup description and the defendant’s actual description, (3) any ID prior to lineup of another person, (4) the identification by picture of the defendant prior to the lineup, (4) failure to identify the defendant on a prior occasion, and (5) the lapse of time between the alleged act and the lineup ID. It is also relevant to consider those facts which—despite the absence of counsel—are disclosed concerning the conduct of the lineup.
NOTE 2: SCOTUS said the appropriate procedure here would be to vacate the conviction pending a hearing to determine whether the in-court IDs had an INDEPENDENT SOURCE, and for the District Court to reinstate the conviction or order a new trial, as may be proper.
May a prosecutor elicit testimony at trial of the fact that witnesses had identified the defendant at a POST-INDICTMENT pretrial lineup where the defendant is NOT represented by counsel?
See Gilbert v. California on p. 805
NO. The Gilbert court held that the State is NOT entitled to an opportunity to show that this kind of testimony had an independent source. Only a per se exclusionary rule as to such testimony can be an effective sanction to assure that law enforcement authorities will respect the accused’s constitutional right to the presence of his counsel at the critical lineup.
NOTE: This case was different from Wade because the prosecution did not seek to introduce evidence relating to the lineup. The only issue was the admissibility of the witness’s IN-COURT identification of Wade.
What are ways to attack the credibility of eyewitness identifications?
See notes on pp. 805-06
- Crimes tend to happen quickly, and at night.
- People tend to see what they expect to see — W may unconsciously “see” the offender in a way that fits her description.
- Substantial evidence of unreliability in cross-racial ID cases; e.g., white person IDing a black person
- When a person experiences a memory gap, they may unconsciously fill in the memory holes with inaccurate details
- Ws often give the “most correct” answer in a multiple choice lineup (pick someone who most resembles the culprit)
When is the right to counsel triggered for defendants in the context of pre-trial ID lineups?
See Kirby v. Illinois on p. 808 (involving a corporeal ID that occurred AFTER arrest but BEFORE indictment or arraignment)
The line is drawn at the initiation of adversary judicial proceedings—formal charge, preliminary hearing, indictment, information, or arraignment.
The Due Process Clause of the Fifth and Fourteenth Amendments forbids a lineup that is…
The Due Process Clause of the Fifth and Fourteenth Amendments forbids a lineup that is unnecessarily suggestive and conducive to irreparable mistaken identification.
NOTE: When a person has not been formally charged with a criminal offense, the DP Clause rule strikes the balance between the right of a suspect to be protected from prejudicial procedures and the interest of society in the prompt and purposeful investigation of an unsolved crime.
Does the Wade-Gilbert rule apply to post-indictment NONCORPOREAL identifications?
See United States v. Ash (U.S. 1973) on p. 809
NO — In Ash, SCOTUS held that the Wade-Gilbert rule DOES NOT APPLY to PHOTOGRAPHIC displays, even if such procedure occurs after formal criminal proceedings have commenced.
