Identifications Flashcards
Due Process Standard
a) Applies to all types of identifications at all stages of the investigatory and prosecutorial process
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
Due Process Standard
What is the focal point of the Due process test?
The focal point of this due process test is reliability, which requires the defendant to prove both:
i) that the police procedures used were unnecessarily suggestive; and
ii) 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)
iii) 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
6th Amendment Right to Counsel Violation
a) 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
b) Only applies to corporeal identifications and only after the initiation of the formal adversarial process (when a suspect becomes defendant)
6th Amendment Right to Counsel Violation
Consequences of Violation
Consequences of Violation: If police conduct a corporeal lineup in violation of the Sixth Amendment:
i) the results are per se inadmissible at trial; and ii) 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
Exam tip!
It does not matter why the defense lawyer is not present at the out-of-court identification. Even if the police act in total good faith, and the lawyer is absent because of his own negligence, conducting the lineup without the lawyer’s presence violates the Sixth Amendment.
Grand Jury Indictment
a) A grand jury indictment is a written accusation stating the charges against the defendant issued by a grand jury after it reviews the prosecution’s evidence
b) A grand jury is not an adversarial hearing; it is an investigatory tool. Therefore:
i) the defendant has no right to be present and no right to assistance of counsel;
ii) the prosecution presents evidence to the grand jury without a confrontation process;
iii) the prosecution has no obligation to present clearly exculpatory evidence to the grand jury; and
iv) no Miranda warnings are needed
Bail Hearing
a) A defendant is entitled to an individualized hearing to determine whether bail should be granted or denied
b) There is no constitutional right to bail, but if appropriate, it may not be excessive
Plea Bargaining
a) A defendant may be convicted based only upon his plea
b) The plea must be knowing, voluntary, and intelligent
i) The defendant must be informed of the general nature of the offense that they are pleading guilty to
Right to a Speedy Trial
a) The right to a speedy trial is guaranteed by the Sixth Amendment
i) The clock begins running once the defendant is accused by formal charge or is arrested for a crime
b) Only remedy for constitutional right violation is dismissal with prejudice (the prosecution can never retry the case)
c) Violation of the right is based on the totality of the circumstances
i) Length of Delay: Generally, more than one year triggers inquiry, but defense-requested delays, including motions, are excluded from this duration calculation
ii) Reason for Delay: A “good” reason is one that the prosecution has no control over, as opposed to one that the prosecution could have avoided by due diligence
iii) Demand for Speedy Trial: Not essential, but if the defendant failed to make a demand, normally this indicates that the defendant did not consider the delay prejudicial
d) Unreasonable delay normally must result in prejudice to the defendant (i.e., degradation of evidence)
Discovery
a) It is a violation of due process for the prosecution to fail to disclose to the defendant evidence both favorable and material
b) If prosecution fails to disclose favorable evidence, the defendant is entitled to a new trial (or sentencing) if the evidence was also material
i) If the defendant makes a discovery request, any evidence that would tend to help the defense must be disclosed
ii) If the defendant does not make a discovery request, only evidence that is clearly exculpatory must be disclosed
c) Material: Evidence is considered material if it would have created a reasonable probability of a different outcome (i.e., if disclosed, it would have created reasonable doubt)
d) The prosecution is not required to disclose this information to a criminal defendant before plea bargaining or entering into a plea agreement
Exam tip!
If the facts indicate a defendant requested discovery but found out after conviction that the prosecution failed to disclose evidence, look to see if the question indicates whether the evidence that was presented was so strong that the defendant would have been convicted even if he had received the discovery. If so, the non-disclosed evidence was not material and the conviction will be upheld.
Right to Counsel at Trial
a) A defendant may not be imprisoned for any offense unless he was represented by counsel or waived that right
b) This right attaches to all critical stages of proceedings that affect the defendant’s right to a fair trial (e.g., trial, preliminary hearing, corporeal identifications, police questioning)
i) Triggered by the actual result of the case, not a risk—any trial that results in confinement triggers the requirement for the defendant to have had counsel
c) The right to counsel means the right to effective counsel. Courts presume that legal counsel is effective; it is very difficult to prevail on an ineffective assistance of counsel claim
d) A defendant seeking a new trial based on a claim of ineffective assistance of counsel must prove both:
i) that their counsel was ineffective (below the minimum standard of lawyer conduct); and
ii) that had the lawyer been effective, it would have created a reasonable probability that the outcome would have been different (i.e., that effective representation would have created reasonable doubt)
Exam tip!
Note that the actual result of the trial is the trigger for requiring the appointment of counsel to an indigent defendant. While this seems backwards, it is an easy rule to remember: if an indigent defendant asks for a lawyer and the request is denied, he may not be sentenced to confinement (even if suspended), and if he is, the conviction must be reversed on appeal.
Right to Jury Trial
a) This right attaches if the defendant faces a potential sentence of more than six months’ confinement (triggered by the risk or potential result)
b) The defendant has a right to a jury selection from a fair cross-section of the community (ethnic and gender demographic)
c) The petit jury (actual jury) has no requirement to be a fair cross-section
Confrontation Clause
a) The Sixth Amendment provides a defendant with the right to confront witnesses and evidence presented against them
b) Trigger: Testimonial evidence—statements made in a situation where the witness would expect it to be used as evidence
i) Ex: Telling a 911 operator what is currently happening during an ongoing emergency is not testimonial, but telling them what already happened for an investigation would be
c) Satisfied by witness testimony provided under oath if the defendant has an opportunity to cross- examine (though they do not actually have to cross-examine the witness)
