Identifications

Question 1

What is the rule of preindictment identifications?

Answer 1

Any lineup, show-up, or photo identification will be inadmissible as violative of due process when the identification is unnecessarily suggestive and likely to produce an irreparable mistaken identification.

Where an identification is both suggestive and unnecessary, it can be admissible if it is reliable based on a totality of the circumstances approach. The following factors are considered and then balanced against the degree of suggestiveness:

1. the 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.

When an out-of-court identification is excluded for suggestiveness or unreliability, a subsequent in-court identification is not allowed.

Question 2

What is the right to counsel in post-indictment lineups?

Answer 2

After formal charges are filed, the D has a right to have counsel present at a lineup.

The inadmissibility of a previous out-of-court identification made at a lineup, based on a violation of the D’s right ot counsel, does not bar the witness from making an in-court identification of the accused at trial when the prosecution can clearly and convincingly show that the subsequent identification stemmed from an independent, purging source.

Improper admission will result in overturning a conviction, unless the prosecution can show harmless error.