Pretrial Identification

Question 1

2 substantive bases on which you can attack a pretrial identification

Answer 1

1-denial of the right to counsel

2-denial of due process

Question 2

Denial of the Right to Counsel

Answer 2

a-post charge lineups (standing in a line) and show ups (one-on-one) give rise to the right to counsel
b-NOTE-there is no right to counsel when the police go out to show the victim or witness photographs
c-other stages where there is NO right to counsel:
1-taking of blood samples
2-taking of handwriting samples
3-precharge lineups
4-brief recess during D’s testimony at trial
5-parole and probation revocation proceedings
6-the taking of fingerprints

Question 3

Denial of Due Process

Answer 3

a-certain pretrial identification techniques are so unnecessarily suggestive and so substantially likely to produce a misidentification that they deny due process of law

Question 4

Remedy

Answer 4

-the remedy for an unconstitutional pre-trial identification is to exclude the in-court identification…unless the State can show that it had an adequate independent source for that in-court identification

Question 5

Independent Source

Answer 5

-the most common independent source is that the victim or witness has adequate opportunity to observe the D at the time of the crime