Pg 35 Flashcards
Is it possible to admit at trial a testimony that identified the defendant after there was a suggestive pre-indictment identification?
Testimony concerning the suggestive identification is admissible unless the identification was so unnecessary and suggestive that it wasn’t reliable, in which case it violated due process. If the court can prove by clear and convincing evidence that the in-court identification is independent from the inadmissible out of court identification, then it is allowed
If an initial identification of the defendant was unnecessary and suggestive, what happens?
The initial identification is excluded. This can happen by making the defendant stand out somehow, indicating a reason to suspect him, indicating that the police suspect him, etc.
When can an unnecessary and suggestive identification be admitted?
If under the totality of the circumstances it is reliable
If a pretrial identification violated the sixth amendment, can that result in exclusion of an in court identification?
Yes. But must consider the following factors:
– prior opportunity to observe the crime
– time between the crime and the identification
– discrepancy between pre-line up description and defendant’s description
– pre-lineup identification of someone else
– pre-lineup identification of the defendant by photo
– failure to identify the defendant before
– if the witness knew the defendant
– if the witness had ever seen a D before
– if he got a good look at him
– if he was certain of the defendant’s identity
– if he made prior accurate or inaccurate identifications
– the opportunity of the witness to view the criminal at the time of the crime
– time between the crime and confrontation
– accuracy of his prior description
– the witness’ degree of attention
– the level of certainty shown at confrontation.
Basically this is admissible if the prosecution can show by clear and convincing evidence that it was based on observations of the suspect other than the unconstitutional identification
How do you avoid suggestiveness when it comes to lineups or photo arrays?
Have multiple people in the lineup or photo array that resemble the suspect showing no difference in race, age, build, skin color, and dress or presentation
if a police officer says “be sure to look closely at this guy“ and pointed to someone in a photo array, does that cause suggestiveness?
Yes
Is there a required minimum number of fillers that are needed for a photo array or a lineup?
No, but the suggestion is to have five with six total
What is the best way to do a photo lineup?
By showing the pictures one at a time instead of together.
What is a double blind administration for a lineup or a photo array?
When the police also do not know who the suspect is. This means they do not unconsciously give hints. It’s also a good idea to warn the witness that the perpetrator may or may not be among the group of people that are being viewed. This helps a witness not to feel like they have to identify someone
