Pretrial Events

Question 1

What are methods of pretrial identification?

Answer 1

Line up

• witness asked to identify the perpetrator from a group

Show up

• one-on-one confrontation between the witness and the suspect

Photo array

• witness is shown a series of photos and is asked if she sees the perpetrator

Question 2

What are the substantive challenges to pretrial identification?

Answer 2

Denial of right to counsel

• there is no 5th Amendment right to counsel under the Miranda doctrine for pretrial identification procedures
• 6th Amendment right to counsel attaches to line-ups and show-ups that occur after formal charging
• no 6th Amendment right for photo arrays or for the taking of physical evidence

Violation of Due Process

• when the pretrial identification procedure is so unnecessarily suggestive that it creates a substantial likelihood of misidentification
• court must weight the reliability of the suggestive identification against its corruptive effect

Question 3

What is the remedy for a Due Process violation or a 6th Amendment violation for pretrial identification?

Answer 3

Exclusion of a witness’s in court identification

Still allowed IF the prosecution can prove that it is based on observations of the suspect other than the unconstitutional pretrial identification

• witness’s opportunity to view the defendant at the crime scene
• opportunity to view the suspect before the pretrial identification
• specificity of description given to the police; and
• certainty of the witness’s identification

Question 4

Describe the function and use of grand juries.

Answer 4

Issue indictments

Conduct proceedings in secret

States can**, but **not must, use them

A defendant has no right to have evidence excluded

• no right to counsel during grand jury testimony
• must appear if called, but may refuse to answer specific questions on 5th Amendment

May consider evidence that would be inadmissible at trial

Question 5

What is the standard and procedure in continuing to detain a suspect prior to trial?

Answer 5

Need probable cause** to **bind defendant over for trial** and to detain him **in jail before trial

Detention hearings (Gerstein/commitment hearings):

• hearing to determine probable cause
• not necessary if indictment or arrest warrant

First Appearance

• defendant brought before a magistrate who

1. advises him of his rights;
2. sets bail; and
3. appoints counsel (if necessary)

Rulings on bail are immediately appealable