Identification Procedures and Crim Pro Protections Flashcards
defendants’ 6th am rights to pretrial ID procedures (rule and two limitations)
o Wade/Gilbert rule: absent waiver, defendants have a Sixth Amendment right to counsel being present at a lineup or showup (Wade)
**violation results in a per se exclusion at trial of any pre-trial identification (Gilbert)
limitation: 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 (Kirby)
limitation: this right does not apply if the prosecution is using a photograph for identification instead of having the defendant present for purposes of identification (Ash)
what is the burden on having a witness ID the defendant at trial when his 6th am rights were violated during the pretrial ID?
**where a violation occurs, prosecutors cannot have the witness identify the defendant at trial unless they can establish that the trial identification results not from the exploitation of the illegality (the lineup/showup in the absence of counsel) but instead through means sufficiently distinguishable to be purged of the primary taint (Wade)
• **super difficult to make this showing
• to make this showing, the government must establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup/showup identification
• non-exhaustive list of factors for consideration
o (1) the prior opportunity to observe the alleged criminal act
o (2) the existence of any discrepancy between any pre-lineup description and the defendant’s actual description
o (3) any identification prior to lineup of another person
o (4) the identification by picture of the defendant prior to the lineup
o (5) failure to identify the defendant on a prior occasion
o (6) the lapse of time between the alleged act and the lineup identification
o (7) those facts which despite the absence of counsel are known about the lineup/showup
defendants’ 5th Am rights to pretrial ID procedures
o rule: look to whether, under the totality of the circumstances, the conduct of the identification procedures is so unnecessarily suggestive as to give rise to a very substantial likelihood of irreparable misidentification (Stovall/Foster/Simmons)
**burden to make this showing is on the defendant ¬– super heavy burden
ex) if the witness said the suspect was a tall, bearded man and so the police only put one tall, bearded man in the line-up (violates DP)
two exceptions to defendants’ 5th Am rights regarding pretrial ID procedures
exception: where the procedure is necessary – like victims making IDs in dire straits, like if they are about to go into serious surgery or something (Stovall)
• **but the victims need not be in dire straights – could be just showing a recent victim a photo right after the event so that you can quickly chase the guy
exception: where the govt shows that the ID is, nevertheless, reliable (Neil)
• non-exhaustive list of factors for consideration in determining reliability (i.e. determining whether the witness’s ability to make an accurate ID outweighs the corrupting effect of police misconduct)s:
o (1) the opportunity of the witness to view the criminal at the time of the crime
o (2) the witness’ degree of attention
o (3) the accuracy of the witness’ prior description of the criminal
o (4) the level of certainty demonstrated by the witness at the confrontation
o (5) the length of time between the crime and confrontation
caveat to 5th Am rights against improper pretrial ID, what is the threshold inquiry?
o rule: the Due Process Clause does not impose a limitation on the admission of eyewitness identification based upon unnecessarily suggestive circumstances where those circumstances were not arranged by law enforcement (Perry)
general rule for when you are afforded the right of trial by jury (along w key distinctions)
o general rule: the right to a jury trial exists only in prosecutions for serious crimes not for petty offenses
in determining whether a crime is “serious” for Sixth Amendment purposes, courts look to the severity of the maximum authorized penalty
where the offense could be punished by a prison sentence greater than six months triggers the right to a jury trial, even if the sentence imposed is less than six months
for crimes punishable by a sentence of six months or less, the right to a jury trial attaches only if additional statutory or regulatory penalties are so severe that the legislature clearly determined that the offense is a serious one
**it is rare that a court will find an offense for which six months or less is authorized to be serious (ex: Nachtigal – DUI offense w/ 6 month sentence, 5 years of probation, plus fines and driving restrictions still only a petty offense)
**in the absence of a maximum statutory penalty, appellate courts will consider the penalty actually imposed
differences btw fed/state jury reqs
o rule: under the federal constitution, while 12 jurors are required for federal criminal prosecutions, states under the federal constitution are not required to have 12 jurors in criminal prosecutions – states can have as few as 6 jurors in criminal cases
o remember: the 7th Am (right to jury trial in civil cases) has not been adopted against the states
vicinage clause
o vicinage clause: you are guaranteed trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law
fair cross section jury rule
o fair cross-section rule: the American concept of the jury trial contemplates a jury drawn from a fair cross section of the community and that the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial (Taylor)
the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof – thus, the jury venire must represent a fair-cross section of the community.
**however, defendants are not entitled to a jury of any particular composition because the fair cross-section requirement does not impose a requirement that the jury actually chosen mirror the community or reflect the various distinctive groups in the population
elements for establishing violation of fair cross section requirement for jury trials
for a defendant to establish a violation of the fair cross-section requirement, she must show
• (1) that the group alleged to be excluded is a “distinctive” group in the community;
o distinctive group in the community: the Supreme Court has viewed the concept in terms of economic, social, religious, racial, political and geographical groups of the community
o age discrimination, both young and old, has been rejected as a violation of the fair-cross section requirement
- (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; AND
- (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process
elements for establishing jury selection discrimination based on sex/race
rule: to make a showing for discrimination based on sex/race:
- (1) must make a prima facie showing that the others side has exercised a peremptory challenge on the basis of race, ethnicity, national origin, or sex (possibly sexual orientation or religion);
- (2) if the showing is made (a sufficient showing to create an inference of intentional discrimination as to a protected class), the burden shifts to the prosecutor to present a class-neutral explanation for striking the juror in question (this is a burden of production not proof), AND
- (3) then the court must then determine whether the defendant has carried his burden of proving purposeful discrimination
3 double jeopardy protections
(1) protection against second prosecution for the same offense after acquittal;
(2) protection against a second prosecution for the same offense after conviction;
(3) protection against multiple punishments for the same offense (multiple description claims & unit of prosecution claims)
multiple description claims
• multiple description claims: often arise in cases in which defendants who have been convicted of multiple criminal offenses under different statutes allege that the convictions violate double jeopardy because the statutes punish the “same offense
o double jeopardy violation occurs in this context from the court imposing an added punishment unauthorized by the legislature
o ultimately, legislative intent is controlling and if the legislature intended multiple punishments, there is no double jeopardy violation
o for multiple description double jeopardy claims, the court applies the Blockburger test (see above)
unit of prosecution claims
• unit-of-prosecution claims: these involve situations when a defendant has been convicted of multiple violations of the same offense
o when considering whether double jeopardy prevents multiple punishments in these types of cases, the courts must determine what the legislature intended to be a single unit of conduct for purposes of a single conviction and punishment
o the Blockburger test is not applied in addressing unit-of-prosecution claims – instead, in evaluating the unit of prosecution, courts will:
(1) examine the statute in question to determine if the legislature has expressly identified the unit of prosecution;
(2) then review the legislative history of the statute; and
(3) perform a factual analysis as to the unit of prosecution
o any ambiguity in resolving “unit-of-prosecution” claims must be resolved against allowing multiple prosecutions – thus, when it is unclear whether the legislature intended multiple punishments for violation of a single statute, the rule of lenity (a substantive canon of statutory construction) prevents multiple punishments
can you be civilly AND criminally punished for a single act?
o rule: the double jeopardy clause does not protect against imposition of a civil sanction and criminal punishment (Hudson)
if the legislature intended to establish a criminal punishment, then the inquiry ends, because the punishment qualifies as a criminal penalty for purposes of double jeopardy
if, however, the legislature intended to establish a civil penalty, review the statutory scheme to ensure that it is not so punitive, either in purpose or effect, as to turn the intended civil sanction into a criminal punishment – court will only find criminal where it is clear that it is criminal rather than civil
