Right to Counsel and Identification Procedures

Question 1

What are the three types of pretrial identification procedures?

Answer 1

1. Lineups (witness asked to identify suspect from multiple people);
2. Showups (witness is presented with single suspect); and
3. Photo-arrays

Question 2

When does a suspect have a right to counsel for a lineup or showup?

Answer 2

At any post-charge, in-person lineup or showup

Question 3

When does a suspect not have a right to counsel for an identification procedure?

Answer 3

1. Pre-charge lineups or showups; and
2. Non-live identification (e.g. examining photographic lineups, fingerprinting, photo arrays)

Question 4

If police act in good faith, but D’s lawyer is absent due to his own negligence, can the police proceed with the lineup?

Answer 4

No, this is still a 6^th Amendment violation.

Question 5

What is the remedy when a post-charge, in-person lineup occurs without counsel present?

Answer 5

1. Identification is inadmissible at trial; and
2. Witness will be prohibited from making a subsequent in-court identification of D unless the prosecution can prove that the witness has an independent source of identification

Question 6

When do pre-trial identification procedures violate due process?

Answer 6

If D can show that, in light of the totality of the circumstances:

1. The police intentionally made the identification unnecessarily suggestive; and
2. The identification produced an irreparable misidentification/is unreliable

Question 7

Due process applies to which types of identification procedures?

Answer 7

All types of ID procedures at all stages of the process

Question 8

What are examples of impermissibly suggestive lineups?

Answer 8

• Lineup when suspect is a man and all of the other individuals are women;
• Lineup where the suspect is one race and all the other individuals are another race;
• Lineup where the suspect has a different appearance than the other individuals; or
• Lineup where the witness knows all of the individuals except the suspect

Question 9

When is a suggestive lineup not impermissibly suggestive?

Answer 9

When the lineup is justified by exigent circumstances

Question 10

What is the remedy for a due process violation during the identification process?

Answer 10

D can seek to suppress the identification via a suppression hearing.

If D meets his burden, evidence will be suppressed and the witness will not be able to subsequently identify D at trial.

⚠️ Exception: if the witness can identify D based upon knowledge from a source that is independent of the impermissible identification, they will be allowed to identify D at trial.

Question 11

What factors does the court weigh when determining the reliability of the witness?

Answer 11

1. Opportunity to see D during the criminal act;
2. Discrepancies between the witness’s pre-lineup description of D and D’s actual description;
3. Whether the witness had initially identified a different suspect;
4. The witness’s degree of exposure to D before the in-person identification (e.g. was shown several photos of the defendant)
5. Whether the witness failure to identify D on a prior occasion(s);
6. Lapse of time between the crime and identification; and
7. How certain the witness is that D is the perpetrator

Question 12

The right to counsel is found in which 2 Amendments?

Answer 12

5^th Amendment and 6^th Amendment

Question 13

What is the 6^th Amendment right to counsel?

Answer 13

Guarantees D the right to counsel during all critical stages of the adversarial process. Only applies to crimes where D may be sentenced to incarceration.

More info: Right to counsel

Question 14

Is there a 6^th Amendment right to counsel for misdemeanors?

Answer 14

No, unless actual incarceration is imposed

Question 15

Does the 6^th Amendment right to counsel protect D against interrogations about other crimes?

Answer 15

No, the 6th Amendment right to counsel is offense-specific (i.e. only applies to interrogations about the offense charged). Thus, the police can question D without counsel present about any other crimes.

Question 16

When is the 6^th Amendment right to counsel triggered?

Answer 16

Begins with the initiation of formal adversarial process (ex. formal charge, indictment, arraignment, or preliminary hearing). Once right is triggered, D is entitled for counsel for all subsequent proceedings.

Question 17

Under the 6^th Amendment, what are considered the critical stages of a proceeding?

Answer 17

Post-indictment:

1. In-person lineups and identifications
2. Preliminary hearings;
3. Bail hearings;
4. Interrogations;
5. Plea bargaining negotiations; and
6. Appeals as a matter of right

Question 18

What stages are considered not critical? (i.e. no right to counsel)

Answer 18

1. Discretionary appeals;
2. Fingerprinting;
3. Parol or probation hearings
4. Photo arrays;
5. Pre-indictment lineups;
6. Probable cause hearings;
7. Taking handwriting, voice, or blood samples;

Question 19

How can D waive their 6^th Amendment right to counsel?

Answer 19

If D:

1. Knowingly and voluntarily waives his rights;
2. Without government coercion

Question 20

If D has waived his 6^th Amendment right to counsel, are statements made without counsel admissible?

Answer 20

Yes, but only if D made the statements voluntarily

Question 21

What is the difference between the 5^th Amendment right to counsel and the 6^th Amendment right to counsel?

Answer 21

5^th Amendment:

• Applies to all crimes, not offense-specific
• Only applies during custodial interrogations
• Must be invoked by a clear statement demanding counsel

6^th Amendment:

• Only applies to the crime charged, offense specific
• Applies to all critical stages of a proceeding
• Automatically invoked once criminal proceedings have begun

Question 22

Once formal proceedings have begun, can police elicit statements from D via a confidential informant without the presence of counsel?

Answer 22

No, police cannot deliberately induce statements from D about the crime charged without counsel present. Statements will be inadmissible.

However, the police can question D about other charges, and they can place a microphone or informant in the cell to “listen” to D, as long as there is no deliberate elicitation of statements.

Question 23

What must D show to reverse a conviction on the basis of ineffective assistance of counsel?

Answer 23

D has the burden to prove that:

1. Counsel’s performance fell below an “objective standard of reasonableness;” and
2. A reasonable probability that, but for the counsel’s error, the proceeding would have had a different outcome

Strickland v. Washington