identification

Question 1

right to counsel in lineups and the affect on the Fifth Amendment privilege against self-incrimination

Answer 1

Requiring a suspect to participate in a lineup does not violate the constitutional protection against self-incrimination

– being forced to appear in a lineup constitutes compulsion for the accused to exhibit his physical characteristics not to disclose any knowledge that he might have – disclosure of knowledge that the accused has would be testimonial in nature

Question 2

timing of the lineup to trigger right to counsel

Answer 2

This right only applies after the initiation of formal judicial procedures against the defendant – arrest alone is not enough to trigger the right to counsel at a lineup/showup or thus the exclusionary consequences of failure to afford counsel (Kirby v. Illinois)

Question 3

implication of the right to counsel with photographic lineups

Answer 3

This right does not apply if the prosecution is using a photograph for identification instead of having the defendant present for purposes of identification (United States v. Ash)

Question 4

Critical aspects to determining when the Sixth Amendment right to counsel applies - three things

Answer 4

(1) to what proceedings does the right to counsel apply, critical stages
(2) timing (when does the right to counsel begin to apply), “a criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel”
(3) under what circumstances does the right to counsel apply?

Question 5

to what proceedings does the right to counsel apply (plus nine examples)

Answer 5

Only those after the initiation of formal judicial proceedings (Massiah and Kirby)

Examples of Critical Stages:

(1) post-indictment pre-trial lineups
(2) preliminary hearings
(3) post-indictment interrogations
(4) post-indictment hearings
(5) arraignments
(6) guilty pleas
(7) trial
(8) sentencing
(9) first-round of appeals

Question 6

constitutionality of identification procedures conducted in an emergency situation

Answer 6

Constitutionality of ID procedure is determined by totality of the circumstances – in an emergency where the witness is possibly dying, a normally unconstitutional showup is allowed

Question 7

suggestiveness of lineups and due process

Answer 7

Suggestiveness of lineups can violate Due Process – e.g., lineup of two short guys with one tall guy

limitation: Neil v. Biggers - where the government can show that the procedure was nonetheless reliable

Question 8

Non-exhaustive list of factors for consideration in determining reliability of identification procedures (there are five of them)

Answer 8

(1) the opportunity of the witness to view the criminal at the time of the crime
(2) the witness’ degree of attention
(3) the accuracy of the witness’ prior description of the criminal
(4) the level of certainty demonstrated by the witness at the confrontation
(5) the length of time between the crime and confrontation

Question 9

lineups not intentionally conducted by police

Answer 9

State action is required for suggestive ID process to be unconstitutional – where police did not intentionally arrange a lineup or showup, it’s fine for it to be shitty