Pretrial Identification

Question 1

Sixth Amendment Right to Counsel

Answer 1

A suspect has the right to the presence of an attorney at any post charge lineup or show-up

Note: An accused does not have a right to counsel pre-charge lineup, at photo identifications or when police take physical evidence, such as handwriting exemplars or finger prints.

Question 2

Due Process Standard

Answer 2

A defendant can attack an identification as denying due process if the identification is unnecessarily suggestive and there is a substantial likelihood of misidentification

Question 3

Exam Tip

Answer 3

Because a lineup does not involve compulsion to give “testimonial” evidence, a suspect’s Fifth Amendment right against compelled self-incrimination does not apply. Thus, the defendant may not refuse to participate in a lineup on this basis

Question 4

Remedies for Unconstitutional Identifications

Answer 4

Generally, unconstitutional identifications are excluded from the of the in court identification

UNLESS

1. a the in court identification comes from an independent source (source other than witness that gave the ID at the unconstitutional lineup/ID procedure)
2. waiver
3. Counsel was present

Question 5

At Suppression/Admissibility Hearing (For Unconst. ID): Whose Burden? Prove What?

Answer 5

Burden on the Government to prove:

1. counsel was present
2. the accused waived counsel; or
3. there is an independent source for the in court ID.

Note: The defendant must prove an alleged due process violation.

Question 6

Stages at Which Sixth Amendment (Right to Counsel) Applies

Answer 6

A defendant has a right to be represented by privately retained counsel, or to have counsel appointed for him by the state if he is indigent, at the following stages:

1. Post indictment interrogation, whether or not custodial
2. preliminary hearings to determine probable cause to prosecute
3. arraignment
4. post charge lineups
5. guilty plea and sentencing
6. felony trials
7. misdemeanor trials when imprisonment is actually imposed or when a suspended jail sentence is imposed
8. overnight recesses during trial
9. appeals as a matter of right
10. appeals of guilty pleas (Fifth Amendment right to counsel at custodial interrogation)

Question 7

Stages at Which Sixth Amendment Right Not Applicable

Answer 7

1. Blood Sampling
2. taking of handwriting or voice exemplars
3. precharge or investigative lineups
4. photo identifications
5. preliminary hearings to determine probable cause to detain
6. brief recesses during the defendant’s testimony at trial
7. discretionary appeals
8. parole and probation revocation proceedings
9. post conviction proceedings.