PRETRIAL PROCEDURES Flashcards
Eyewitness Identification Procedures
- Types
There are two types of eyewitness identification procedures: corporeal and non-corporeal. Corporeal identifications are “in-person,” as in lineups or show-ups. Non-corporeal identifications are not in-person and involve police officers using photo arrays for a witness to identify the perpetrator of the crime.
- Post-Indictment Identifications—Sixth Amendment Right to Counsel
A defendant is entitled to have counsel present at any post-indictment lineup or show-up in which the defendant is required to participate. United States v. Wade, 388 U.S. 218 (1967); Gilbert v. California, 388 U.S. 263 (1967). The prosecution bears the burden of establishing that counsel was present. The right to counsel does not apply to any pre-indictment lineup, even if it takes place after the defendant has been arrested for another unrelated crime. Kirby v. Illinois, 406 U.S. 682, 690–691 (1972).
a. Waiver
The defendant can waive the right to have counsel present at the lineup, provided that waiver is made knowingly and intelligently. The prosecution bears the burden of demonstrating that the waiver was valid.
b. Remedy for violation
Testimony about a post-indictment, pre-trial identification in the absence of counsel is inadmissible at trial, but the witness may still identify the defendant at trial if the prosecution can show that the identification has independent reliability. United States v. Wade, 388 U.S. 218 (1967).
c Non-corporeal identification procedures
There is no right to counsel during an identification through a photo array, regardless of when the photo array is conducted.
- Impermissibly Suggestive Identification Procedures—Due Process Rights
A defendant also has a due process right pursuant to the Fifth Amendment (for federal prosecutions) and the Fourteenth Amendment (for state prosecutions) with regard to a witness’s identification based on an identification procedure arranged by the police that was impermissibly suggestive. This right exists whether the identification procedure was corporeal or non-corporeal, and whether the identification took place before or after the indictment of the defendant. Perry v. New Hampshire, 565 U.S. 228 (2012).
a. Two-prong test
Courts use a two-prong test to determine the admissibility of a pre- or post-indictment corporeal or non-corporeal identification. To prevail, the defendant must demonstrate that the procedure was impermissibly suggestive and that there was a substantial likelihood of misidentification. In order to have the identification admitted, the prosecution can offer evidence that the identification was nonetheless reliable.
In making its ruling, the court is to consider the following factors:
i) The witness’s opportunity to view the defendant at the time of the crime;
ii) The witness’s degree of attention at the time of the crime;
iii) The accuracy of the witness’s description of the defendant prior to the identification;
iv) The level of certainty at the time of the identification; and
v) The length of time between the crime and the identification.
Neil v. Biggers, 409 U.S. 188, 199–200 (1972). Only when the indicators of a witness’s ability to make an accurate identification are outweighed by the corrupting effect of law enforcement suggestion should the identification be suppressed on due process grounds. Perry v. New Hampshire, supra, at 725, quoting from Manson v. Brathwaite, 432 U.S. 98, 114 (1977). This test applies both to an out-of-court identification and an in-court identification that is based on a prior out-of-court identification.
1) Impermissibly suggestive
Police identification procedures that are highly suggestive usually are also impermissibly suggestive. However, even when such procedures are highly suggestive, they may not be impermissibly so, if they are necessary. For example, an identification made by a witness of defendant brought in handcuffs to the witness’s hospital room by uniformed police officers was not impermissible suggestive because the witness was the only person who could identify the perpetrator, the witness could not leave her hospital room, and it was uncertain whether the witness would survive. Stovall v. Denno, 388 U.S. 293 (1967).
In addition, a defendant’s due process rights are violated only if it is the police who have arranged the identification procedure to be impermissibly suggestive. For example, when a witness, asked by a police officer to describe the perpetrator of an automobile break-in, pointed out her window to the man standing next to the police officer, the identification—although made as a consequence of suggestive circumstances—was not due to identification procedures arranged by the police. Perry v. New Hampshire, supra.
b. Suppression hearing
A defendant who has moved to suppress an identification is entitled to a suppression hearing. This hearing usually is held outside the presence of the jury, although exclusion of the jury is not constitutionally required.
c. Remedy for violation A conviction as the result of a trial in which an illegal identification was admitted will be overturned unless, under the doctrine of harmless error, the appellate court is convinced beyond a reasonable doubt that the improperly admitted identification did not contribute to the verdict.
Preliminary Proceedings
Subsequent to the defendant’s arrest, various court proceedings may be held. These pretrial proceedings, which take various forms depending on the jurisdiction, can include a hearing to determine probable cause to detain (a Gerstein hearing), an initial appearance, an arraignment, a detention or bail hearing, and a preliminary hearing to determine probable cause to prosecute the defendant. Some of these proceedings may be combined, and some may not be required. In addition, the defendant may make various motions, including motions to suppress evidence obtained in violation of the defendant’s constitutional rights.
- Probable Cause to Detain (Gerstein Hearing)
Under the Fourth Amendment, a preliminary hearing must be held after the defendant’s arrest to determine whether probable cause exists to hold the defendant, unless such determination has already been made before the defendant’s arrest through a grand jury indictment or the judicial issuance of an arrest warrant. Gerstein v. Pugh, 420 U.S. 103 (1975). This hearing, known as a Gerstein hearing, need not be adversarial. There is no right to counsel at this hearing, and hearsay evidence may be introduced, but a hearing not held within 48 hours after arrest is presumptively unreasonable. County of Riverside v. McLaughlin, 500 U.S. 44 (1991). However, the failure to hold this hearing does not affect the prosecution of the defendant for the charged offense, other than the exclusion of any evidence discovered as a consequence of the unlawful detainment. Under the Fifth Amendment, all felony charges must be by indictment of a federal grand jury, unless waived by the defendant.
- Initial Appearance
Soon after the defendant is arrested, the defendant must be brought before a judge who advises the defendant of the charges against him and of his rights and who appoints counsel if the defendant is indigent. During this initial appearance, which may be held in conjunction with a Gerstein hearing, the judge may also determine whether the defendant should be released prior to trial and the conditions of the release (e.g., bail), accept a plea from the defendant, and set a date for a preliminary hearing.
- Arraignment
At an arraignment, the court informs the defendant of the crime with which the defendant has been charged and elicits the defendant’s response (i.e., plea) to those charges. At this time, the court may appoint counsel for an indigent defendant. These events may also take place at the initial appearance.
- Detention Hearing
In conjunction with the defendant’s initial appearance or at a separate hearing, the court may determine whether to release the defendant and any conditions upon such release. At such time, the court may set bail (see §C. Right to Bail, infra).
- Preliminary Hearing to Determine Probable Cause to Prosecute
Subsequent to the defendant’s initial appearance, a preliminary hearing may be held to determine whether there is probable cause to believe that the defendant has committed a specific crime. At this hearing, which is an adversarial proceeding, the defendant has the right to counsel. Coleman v. Alabama, 399 U.S. 1 (1970). A defendant who has been indicted by a grand jury is not entitled to this hearing
Right to Bail
There is no explicit constitutional right to bail. However, any denial of bail must comply with the Due Process Clause. Therefore, the setting of excessive bail or the refusal to set bail is immediately appealable. Furthermore, bail set higher than an amount reasonably calculated to ensure the defendant’s presence at trial is “excessive” under the Eighth Amendment.
- Statutory Bail Provisions
The Bail Reform Act of 1984 governs release or detention determinations in federal courts in criminal proceedings. Many states have modeled similar statutory bail provisions on the Act.
- Presumptions Pre- and Post-Conviction
There is a presumption in favor of pre-trial release. A detention hearing must be held at the initial appearance for there to be a release. However, there is a presumption against bail post-conviction, pending appeal. The Federal Rules of Evidence do not apply at detention hearings.
- Pre-Trial Detention
Certain pretrial detention practices that are reasonably related to maintaining jail security are permissible and do not violate due process or the Fourth Amendment. These include routine inspections of inmates’ cells, prohibiting receipt of outside food or personal belongings, body-cavity searches, and double bunking.
