identification evidence

Question 2

two constitutional bases to challenge the admissibility of ID evidence

Answer 2

1. the procedures violated due process
2. the procedures violated the 6th amendment right to counsel

Question 3

due process standard for identifications

Answer 3

Any lineup, show-up, or photo identification will be inadmissible as violative of due process where the (1)identification is “unnecessarily suggestive and (2) conducive to irreparable mistaken identification.”

Question 4

Can an identification that is both suggestive and unnecessary still be admissible if it is reliable?

Answer 4

Yes based on a “totality of the circumstances” assessment, which considers the following factors:

(1) the opportunity to view the criminal at the scene;
(2) the witness’s degree of attention;
(3) the accuracy of the witness’s descriptions;
(4) the degree of certainty of the witness; and
(5) the time interval between the crime and the identification.

These factors are then balanced against the degree of suggestiveness.

Question 5

IDs in exigent circumstances

Answer 5

The use of inherently suggestive procedures because doing so is necessary under the circumstances (for example, because police believe the witness is about to die) does not violate due process.

Question 6

What are the three types of pretrial identification procedures?

Answer 6

1. Lineups (witness asked to identify suspect from multiple people);
2. Showups (witness is presented with single suspect); and
3. Photo-arrays

Question 7

can excluded out of court ID be allowed in court?

Answer 7

no, it will almost always be excluded as fruit of the poisonous tree

Question 8

When does a suspect have a right to counsel for an ID

Answer 8

At any post-charge, in-person lineup or showup

Question 9

If police act in good faith, but D’s lawyer is absent due to his own negligence, can the police proceed with the lineup?

Answer 9

No, this is still a 6th Amendment violation.

Question 10

consequences of 6th amendment right to counsel violation

Answer 10

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

-the results are per se (no exception) inadmissible at trial; and

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