Learning Outcomes
This article examines the constitutional safeguards surrounding pretrial identification procedures. You will learn about the Sixth Amendment right to counsel at post-charge lineups and showups, the Due Process standard applicable to all identification methods, and the remedies for constitutional violations. Understanding these rules is essential for analyzing fact patterns involving challenges to identification evidence on the MBE. This review will equip you to identify the relevant constitutional issues and apply the correct standards to determine the admissibility of identification evidence.
MBE Syllabus
For the MBE, you must understand the constitutional limitations placed on police procedures used to identify suspects. This includes evaluating identification methods under the Sixth Amendment Right to Counsel and the Due Process Clauses of the Fifth and Fourteenth Amendments. You should be prepared to:
- Identify when the Sixth Amendment right to counsel attaches to identification procedures.
- Distinguish between lineups, showups, and photographic identifications regarding the right to counsel.
- Apply the Due Process standard to determine if an identification procedure was unnecessarily suggestive and created a substantial likelihood of misidentification.
- Analyze the factors relevant to the reliability of an identification (Manson factors).
- Determine the appropriate remedy for an unconstitutional out-of-court identification, including the admissibility of in-court identifications based on an "independent source."
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
-
A suspect's Sixth Amendment right to counsel attaches to which of the following identification procedures?
- Photographic array shown to a witness before formal charges are filed.
- Corporeal lineup conducted after the suspect has been formally charged.
- Showup conducted immediately after the crime and before arrest.
- Taking of handwriting exemplars after indictment.
-
An out-of-court identification procedure violates Due Process if it is:
- Conducted without the presence of counsel.
- Inherently suggestive, regardless of necessity.
- Unnecessarily suggestive and creates a substantial likelihood of irreparable misidentification.
- Conducted after the suspect has invoked their right to remain silent.
-
If an out-of-court lineup is found to be unconstitutional due to a denial of the right to counsel, an in-court identification by the same witness will be admissible if:
- The witness confirms they are certain of the identification.
- The prosecution can show by clear and convincing evidence that the in-court identification has an independent source.
- The defendant takes the stand and denies involvement in the crime.
- The lineup occurred before formal charges were filed.
Introduction
Pretrial identification procedures are a critical part of criminal investigations but also pose a risk of misidentification, potentially leading to wrongful convictions. The Constitution provides two main safeguards against unreliable identifications resulting from flawed police procedures. The Sixth Amendment grants the accused the right to have counsel present during certain critical post-charge identification procedures. The Due Process Clauses of the Fifth and Fourteenth Amendments protect against identification procedures that are unnecessarily suggestive and create a substantial likelihood of misidentification, regardless of when the procedure occurs or whether formal charges have been filed.
Sixth Amendment Right to Counsel
The Sixth Amendment provides that "In all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence." This right attaches once adversary judicial criminal proceedings have been initiated (e.g., formal charge, preliminary hearing, indictment, information, or arraignment). The Supreme Court has held that certain pretrial identification procedures conducted after the attachment of this right are "critical stages" requiring the presence of counsel.
When the Right Applies
- Post-Charge Lineups: A suspect has a right to have counsel present at any corporeal (in-person) lineup conducted after formal charges have been initiated. [United States v. Wade]
- Post-Charge Showups: The right to counsel also applies to post-charge showups (one-on-one confrontations between the witness and the suspect). [Moore v. Illinois]
When the Right Does Not Apply
- Pre-Charge Identifications: The Sixth Amendment right does not attach before formal charges. Therefore, there is no right to counsel at lineups or showups conducted before adversary proceedings begin. [Kirby v. Illinois]
- Photographic Identifications: The accused does not have a right to counsel at photographic identifications, whether conducted before or after formal charges. The rationale is that the defendant is not physically present, and the attorney can reconstruct the photo array later to challenge its fairness. [United States v. Ash]
- Other Procedures: Taking physical evidence like blood samples, handwriting exemplars, or fingerprints does not trigger the Sixth Amendment right to counsel, as these are not considered "critical stages" requiring counsel's presence to ensure fairness.
Key Term: Critical Stage A point in a criminal prosecution where the accused's rights may be affected, and where the presence of counsel is necessary to ensure a fair trial. Post-charge lineups and showups are critical stages for Sixth Amendment purposes.
Role of Counsel
The lawyer's function at a lineup is primarily that of an observer to detect any suggestive procedures. Counsel cannot typically object during the lineup itself but can challenge its admissibility later in court.
Worked Example 1.1
Defendant was arrested for robbery. The next day, before any formal charges were filed, the police placed him in a lineup with five other individuals. Witness identified Defendant as the robber. Later, Defendant was indicted. At trial, Witness identified Defendant again. Defendant argues the lineup identification was unconstitutional because his lawyer was not present. Is Defendant correct?
Answer: No. The Sixth Amendment right to counsel attaches only after the initiation of formal adversarial proceedings (e.g., indictment). Because the lineup occurred before formal charges were filed, Defendant did not yet have a Sixth Amendment right to counsel at the lineup.
Due Process Limitations
Independent of the Sixth Amendment right to counsel, the Due Process Clauses of the Fifth (federal cases) and Fourteenth (state cases) Amendments provide protection against unreliable identifications. An identification procedure violates Due Process if it is unnecessarily suggestive and there is a substantial likelihood of irreparable misidentification. [Stovall v. Denno; Manson v. Brathwaite] This protection applies to all types of identification procedures (lineups, showups, photo arrays) at any stage of the investigation, whether pre-charge or post-charge.
The Two-Part Test
- Unnecessarily Suggestive Procedure: The procedure used must have been unnecessarily suggestive. Suggestiveness can arise from the way the lineup/array is constructed (e.g., the suspect is markedly different from fillers) or the way it is administered (e.g., police hint at which person is the suspect). A suggestive procedure might be deemed necessary under exigent circumstances (e.g., a showup identification at the hospital bedside of a dying witness).
- Substantial Likelihood of Misidentification: If the procedure was unnecessarily suggestive, the identification will still be admissible if it is deemed reliable under the totality of the circumstances. Reliability is the "linchpin." [Manson v. Brathwaite]
Key Term: Due Process (Identification) The constitutional guarantee that prohibits identification procedures which are unnecessarily suggestive and create a substantial likelihood of irreparable misidentification, thereby ensuring fundamental fairness.
Reliability Factors (Manson Factors)
Courts assess reliability by balancing the suggestiveness against factors indicating the witness's ability to make an accurate identification. These factors include:
- The witness's opportunity to view the criminal at the time of the crime.
- The witness's degree of attention during the crime.
- The accuracy of the witness's prior description of the criminal.
- The level of certainty demonstrated by the witness at the identification procedure.
- The time between the crime and the identification procedure.
If these factors indicate sufficient reliability, the identification may be admissible despite an unnecessarily suggestive procedure.
Worked Example 1.2
Victim was robbed at gunpoint in a dimly lit alley. The robber wore a mask covering the lower half of his face. Immediately after the robbery, police apprehended Suspect nearby based on a vague description. They brought Suspect back to the scene alone (a "showup") and asked Victim, "Is this the man who robbed you?" Victim identified Suspect. Suspect argues this procedure violated Due Process. Is he likely correct?
Answer: Likely yes. The showup procedure (showing only one suspect) is inherently suggestive. While sometimes necessary due to exigency, it wasn't clearly necessary here. The critical issue is reliability. Factors weighing against reliability include Victim's limited opportunity to view (dim light, mask), the stress of the event affecting attention, and the suggestiveness of the showup itself. If Victim's prior description was vague and certainty at the showup was influenced by the suggestive procedure, there's a substantial likelihood of misidentification, violating Due Process.
Remedy for Unconstitutional Identifications
If an out-of-court identification procedure is found unconstitutional (either under the Sixth Amendment or Due Process), the primary remedy is the exclusion of testimony regarding that out-of-court identification at trial.
Admissibility of In-Court Identification
Exclusion of the out-of-court identification does not automatically bar the witness from making an in-court identification of the defendant during the trial. The witness will be permitted to make an in-court identification if the prosecution can establish by clear and convincing evidence that the in-court identification is based on the witness's observations of the suspect during the crime, rather than tainted by the improper pretrial identification procedure. This is known as the "independent source" doctrine. [United States v. Wade]
The factors used to determine reliability under the Due Process analysis (Manson factors) are relevant in assessing whether an independent source exists.
Key Term: Independent Source Doctrine Allows a witness who participated in an unconstitutional out-of-court identification procedure to make an in-court identification if the prosecution proves by clear and convincing evidence that the in-court identification is based on the witness's independent observations during the crime, untainted by the improper procedure.
Exam Warning
Do not confuse the Sixth Amendment right to counsel with the Due Process analysis. The right to counsel applies only to post-charge corporeal identifications. The Due Process clause applies to all identification procedures at any time, focusing on suggestiveness and reliability. A procedure might violate Due Process even if the right to counsel did not attach or was not violated.
Key Point Checklist
This article has covered the following key knowledge points:
- The Sixth Amendment right to counsel attaches after formal charges are initiated.
- This right applies to post-charge corporeal lineups and showups.
- It does not apply to pre-charge identifications, photographic arrays, or taking physical evidence.
- The Due Process Clause prohibits identification procedures that are unnecessarily suggestive and create a substantial likelihood of irreparable misidentification.
- This Due Process protection applies to all identification procedures at any time.
- Reliability is assessed using the Manson factors (opportunity to view, attention, description accuracy, certainty, time lapse).
- The remedy for an unconstitutional out-of-court identification is exclusion of that identification.
- An in-court identification following an unconstitutional out-of-court identification is admissible if the prosecution shows an independent source by clear and convincing evidence.
Key Terms and Concepts
- Critical Stage
- Due Process (Identification)
- Independent Source Doctrine
