Pretrial Identification (6th Amendment - Right to Counsel; 14th Amendment - Due Process) Flashcards
On what bases can D attack pre-trial identification?
- 6th amendment right to counsel (post-charge lineup or show-up)
- 5th/14th amendment - due process
When does D have 6th amendment right to counsel with regards to pre-trial identification?
Yes 6th amendment right to counsel –>
- any POST-CHARGE lineup or show up
NO 6th amendment right to counsel
- photo ID
- where police take physical evidence (such as handwriting or voice samples or fingerprints)
RECALL –> pre-trial right to counsel is limited and does not generally cover procedures where D is not personally confronted by witnesses against him
EXAMPLE —> photo ID
On what grounds can D attack a pre-trial ID under due process?
Pre-trial ID violates DP if it is:
- UNNECESSARILY suggestive; AND
- there is a SUBSTANTIAL LIKELIHOOD of misidentification
Does lineup implicate 5th amendment right against compelled self-incrimination?
No!
bc lineup does not involve compulsion of “testimonial” evidence, 5th amendment is not implicated
THUS –> D cannot refuse to participate in lineup on this basis
What is the remedy for unconstitutional ID’s ?
Exclusion of in-court ID
EXCEPTION: independent source rule
What is the “independent source rule”?
witness may make an in-court ID despite the existence of an unconstitutional pre-trial id IF:
- the in-court id has an INDEPENDENT SOURCE
Most common –> opportunity to observe at the time of the crime
EXAMPLE –> witness viewed D close up for 40 minutes at time of crime
What is the rule re: hearing re: admissibility where there is a claim of bad pre-trial id?
What are the various burdens?
Admissibility of identification evidence should be determined at suppression hearing in absence of jury, but exclusion of jury is NOT constitutionally required.
Def must prove —> DP violation
Pros must prove:
- counsel was present or waived; or
- that there is an independent source for in court ID
