Identification

Question 1

Due Process Standard

Answer 1

RULE: If a defendant can prove that an identification procedure used by the government was
so unnecessarily suggestive that it created an irreparable risk of mistaken identification, the
procedure violates due process and the prosecution cannot use the ID at trial

*Applies to all types of identifications at all stages of the investigatory and prosecutorial process

Question 2

(Identification) To establish a due process violation, the defendant must prove:

Answer 2

1. ) that the police procedures used were unnecessarily suggestive; and
2. ) that the suggestiveness produced an unreliable identification.

Factors used to determine this
include:
(1) the witness’s opportunity to view the criminal at the scene;

(2) the witness’s degree of attention;
(3) the accuracy of the witness’s description;
(4) the degree of certainty of the witness; and

(5) the time interval between the crime and the identification (the longer the interval, the less
reliable the ID)

*** When an out-of-court ID is excluded because it violates due process, a subsequent in-court ID by the same witness will almost always be excluded as fruit of the poisonous tree

Question 3

Sixth Amendment Right to Counsel Violation

Answer 3

1.) An out-of-court corporeal (human, in person) identification is a critical stage in the adversarial
process and the defendant cannot be subject to it without counsel present or a knowing and voluntary
waiver of counsel

2.) Only applies to corporeal identifications and only after the initiation of the formal adversarial process
(when a suspect becomes defendant)

Question 4

If police conduct a corporeal lineup in violation of the Sixth Amendment:

Answer 4

1.) the results are per se inadmissible at trial; and

2.) the witness is prohibited from making a subsequent in-court ID of the defendant unless the
prosecution can prove by clear and convincing evidence that the in-court ID is independent from
the inadmissible out-of-court ID