Identifications/ line-ups Flashcards
ID analysis
- was there a 6th Amend right to counsel?
- Was there a DP violation?
- If there were either of both of these violations, is there an independent origin for the eyewitness’s testimony at trial?
- Remedies
Was there a 6th Amend right to counsel?
- after charges formally attach
- at all critical stages of proceedings
- did D waive right
What kinds of IDs are “critical stages of proceedings”
corporeal. Non-corporeal are not
When are corporeal IDs NOT covered by 6th Amend right?
if such ID took place before charges formally attached
covert police action
no waiver needed, because no way to get waiver
overt police action
waiver needed
How may cops contact D after D has invoked 6th amen right to counsel?
if they Mirandize them
Otherwise, inadmissible due to 5th Amend self-incrimination AND 6th Amend right to counsel
When is evidence obtained in a violation of 6th amend right to counsel admissible?
for impeachment
Was there a DP violation? test
totality of the circumstances 2 prongs (as long as ID is reliable, both prongs do NOT have to be met):
- whether the ID was so impermissible suggestive as to give rise to a high probability of misidentification (requires state action)
- Even so, was the ID reliable? (most important prong)
Exception to suggestive ID procedure
an emergency need to show V the D immediately
SCC recommended ID procedures
- double-blind administration
- sequential
- if cops don’t follow, motion to exclude granted
Manson v. Braithwaite 5 factors (totality of the circumstances)
- opportunity to view
- degree of attention
- accuracy of the description of the D
- the W’s level of certainty
- the time between crime and confrontation
Independent origin for W’s testimony at trial
can the prosecution show by clear and convincing evidence that the ID was not tainted by the suggestive procedure? (Dissipation of taint)
