Pretrial Identifications and Proceedings

Question 1

What are the three types of pretrial identifications?

Answer 1

1. Line-ups (witness asked to identify the perp from a group)
2. Show-ups (witness shown one person and asked if that person is the perp)
3. Photo arrays (witness is shown series of photos and asked if she sees the perp)

Question 2

How do the various rights to counsel apply to pretrial IDs?

Answer 2

1. 5A (Miranda): No Miranda right to counsel for pretrial ID procedures
2. 6A: Right to have counsel present at lineups and show-ups after charging (but not photo arrays)
3. NY: Right to have att’y present at lineup before formal charges if police are aware you have counsel AND you request counsel be present

Question 3

When will a pretrial ID violate 14th Am Due Process?

Answer 3

When pretrial identification is so unnecessarily suggestive that it creates a substantial likelihood of mis-identification

(In making this determination, courts must weigh reliability of suggestive ID against its corrupting effect)

Question 4

What is the remedy for Constitutional violations during pretrial ID?

Answer 4

Exclusion of witness’s in-court ID

BUT, even if there was a pre-trial violation, an in-court ID will still be allowed if the prosecution proves that it’s based on observations of the suspect other than the unconstitutional line-up, show-up, or photo array

(e.g., If P can prove that witness could make a valid identification based on experience with D outside of the lineup, photo array, etc.)

Question 5

What are three common factors that the prosecution can point to to prove that an in-court ID is not based on a violative lineup, photo array, etc.?

Answer 5

1. Opportunity to view D at crime scene
2. The specificity of the description given to police
3. The certainty of the witness’s ID

Question 6

Broadly, what is a grand jury?

Answer 6

Nonpublic jury that issues indictments (SECRET PROCEEDINGS!)

(N.B. Generally, grand juries are NOT required by states as part of the charging process)

Question 7

NY QUESTION

What are the grand jury rules in NY? (3)

Answer 7

1. All felonies require indictment by grand jury.
2. Indictments must establish all elements of the offense, AND
3. Provide reasonable cause to believe that the accused committed the offense.

Question 8

What rights are not present at grand jury hearings?

Answer 8

1. Right to counsel
2. Right to Miranda warnings
3. Right to notice that you’re a potential D(!)

Question 9

What happens at a first appearance?

(i.e., Soon after arrest, D must appear before a magistrate – this is the “first appearance”)

Answer 9

At first appearance, magistrate will:

1. Advise D of rights;
2. Appoint counsel if necessary; AND
3. Set bail (must be reasonable amount, but bail may be denied if there is proof of D’s danger to the community)

Question 10

What are the requirements for reasonable bail?

Answer 10

Bail may be no greater than what’s necessary to ensure accused will appear at trial.

(N.B. Bail may be denied based on proof of D’s danger to the community)

Question 11

What is the evidentiary standard for bail?

Answer 11

Govt must show probable cause that D committed the charged offense in order to:

1. Bind him over for trial AND
2. Either impose bail or detain in jail before trial

Question 12

When is a preliminary hearing for probable cause unnecessary?

Answer 12

1. Grand Jury has issued indictment OR
2. Magistrate has issued arrest warrant