Pg 32 Flashcards
Does the fifth amendment give a criminal suspect a right of non-participation in identification procedures?
No. It only protects been against being compelled to testify against yourself or provide the state with evidence of a testimonial or communicative nature from your own mouth.
What kind of things are not protected by the fifth amendment so that a suspect must participate in these identification procedures?
– providing a blood sample to prove a DUI – fingerprinting – photographing – measurements – writing or speaking samples – appearing in court – having to stand, walk, do a gesture, or say a phrase – physical exams – x-rays – UV light – casts of your teeth – removing your glasses – putting on an item such as a mask, wig, or shoe – showing a tattoo
In what situations will your voice be required and what situations will it be protected under the 5th amendment?
– required: you can be required to use your voice as an identifying physical characteristic
– protected: you will not be required to speak your guilt
If a defendant refuses to do an identification procedure, what happens?
- the prosecution can comment on it
- it can be considered circumstantial evidence of guilt [such as flight or escape from custody]
- police can continue with the identification procedure over the defendant’s objection [although this may violate due process and get excluded]
If a suspect changes his appearance between his arrest and a lineup, what happens?
The change in appearance can be presented to the jury as evidence of guilt, or an identification procedure can be done to simulate the defendant’s previous appearance. I.e.: he can be asked to wear a fake beard, or a wig, to dye his hair, to have a make-up artist work on him, etc. But things like having to shave a beard requires a substantial justification for that kind of action
If there was a stabbing victim that was in the hospital in life-threatening condition, can the defendant be brought to the hospital handcuffed in order for the victim to identify him?
Not if under the totality of the circumstances the confrontation was so impermissibly suggestive and conducive to irreparable mistaken identification that the defendant violated due process.
What is the test that you need to ask yourself about with regard to the timing of an identification?
- Is there a good reason for not using a less suggestive procedure?
- Was it necessary?
What is a situation when it would be permissible to bring a defendant to a victim’s hospital room in order to identify him?
If the victim is in critical condition and will likely not live, so the police need an identification while the victim is alive
If there is an accidental show up that was not planned by the police, such as a witness seeing a defendant at a courthouse or a station, is there a due process issue involved?
No, because the police weren’t involved in orchestrating the confrontation
What are different types of identification procedures?
- lineups
– photo identification
– one man show ups
– in court identifications
What is the most useful and least questionable identification procedure?
Lineups
To be most fair, how many people should be in a lineup?
Six similar people, although courts only require three.
When you are picking people to go in a lineup, how should you choose them?
The physical characteristics such as age, dress, features, and race should be fairly uniform, although courts often allow significant dissimilarities
Is it necessary for an attorney to be present for a lineup?
Only if the suspect has already been indicted, but not before. And the requirement for counsel only applies to live lineups, not to show ups
With regard to a photo identification, the smaller the number of photographs, the more what?
Suggestive it is
How should you arrange the pictures when you do a photo identification?
In a way so that no one stands out.
If police use a photo identification procedure and the defendant’s photo is very different from the others, what can happen?
That can be brought out at trial
Is there a right to have an attorney with regard to a photo identification?
No
What is a one-man show up as a type of identification procedure?
When the witness views a single person or a single photo
When is the only time that a one-man show up should be used?
If it is happening within several hours of the crime and there is a need for a quick solution or a hope for fresh or accurate identification. Basically it had better have been accidental or an emergency
Why are one-man show ups more suggestive than lineups?
Because there are no fillers, so the witness assumes that he is being shown someone because the police are suspecting him
What is the most suggestive type of identification procedure?
In court identifications because these imply that the authorities are satisfied that they have the right man
What are some grounds that a testimony can be challenged on under the sixth amendment?
– no attorney was present when necessary
– confrontation was unnecessarily suggestive
– police presentation of an identification procedure
When is counsel required with regard to identification procedures?
The sixth amendment only applies to incorporeal identifications: these are physical identifications where the suspect was actually brought before the witness. This includes show ups and lineups
If the sixth amendment applies, does it matter what the reasoning was for an attorney not being present?
No, if an attorney was not present, the sixth amendment was violated. This means that the identification procedure was per se inadmissible and cannot be used for any purpose
What is the rationale behind the sixth amendment making identification procedures inadmissible if an attorney was not present?
There’s a risk that the suspect will do or say something incriminating which implicates his fifth amendment privilege and an attorney must be present to prevent suggestive identification procedures.
Why is it not necessary to have an attorney present for a photo identification procedure?
Because there’s no risk of the suspect doing something self incriminating and the photo identification procedure can be preserved so that the attorney can see it later
What is the split about the role of an attorney at a lineup?
– some courts say that the attorney is there to keep order and to give assistance to the suspect if there is overreaching. This is an active advocate
– while others say that the attorney is a passive observer
When is counsel not required for an identification procedure?
Photo arrays and photo show ups before indictment as well as live show ups before indictment and live lineups before indictment
When will an identification testimony be suppressed?
If the confrontation was unnecessarily suggestive and conducive to irreparable mistaken identification such that it is a denial of due process
If a defendant is summoned to appear before a grand jury to be identified, does that give the right to counsel?
No
What are things you should pay attention to with regard to identification procedures?
- the way the police present a lineup, show up, or photo lineup can affect whether the witness makes an identification and how accurate it is
– the police officer’s statements, reactions, or body language can affect accuracy
– every time identification is retested, that changes the memory of the person and alters his recall of details
What is the standard by which you assess all identification procedures?
Under due process. They must be assessed for reliability including whether they were suggestive. In order to show a due process violation, it must be proven that the procedures used were unnecessarily suggestive and resulted in irreparable risk of undeniable unreliable identification. If a suggested procedure doesn’t result in an unreliable identification, then due process is not violated. The required elements are: unnecessary suggestiveness and unreliable identification. One without the other does not violate the process
