Immunity; Eyewitness Identifications

1
Immunity Eyewitness Identifications
2
Immunity

• Involves exercise of prosecutorial discretion
• Protects witness from use of testimony in
  subsequent criminal prosecution
• Use, derivative use, transactional immunity
• Enables government to compel responses without
  violating Fifth Amendment
• Perjury exception
• Act of production immunity (US v. Hubbell)

3
Eyewitness Identifications

• Have strong effect on juries
• Notoriously unreliable (inherent and suggestivity
  problems)
• Has led to constitutional protections

4
Approaches to Eyewitness ID Problems

• Right to counsel
• Due Process
• Fourth Amendment
• Fifth Amendment (rejected in Schmerber v. CA)

5
Types of ID Procedures

• Live (corporeal) line up
• Show up or cold show
• Photographic spreads mug books
• Voice line up
• Sequential ID procedures
• Double blind testing
• Dog Scent Line-up
• Admonitions

6
Right to counsel approach

• Result of a post-indictment corporeal line up in
  absence of counsel is inadmissible so is
  subsequent in-court identification, unless
  prosecution can show independent basis for
  in-court ID by clear and convincing evidence (US
  v. Wade)
• Factors include prior observation, discrepant
  description, ID of another, prior photo ID,
  failure to ID, elapse of time, etc.

7
Right to counsel contd

• Does not apply to pre-indictment corporeal line
  up (Kirby v. IL)
• Does not apply to photo spreads (US v. Ash)
• Application relatively rare
• Role of counsel?
• Defense request for line up

8
The Due Process Approach

• Identification is inadmissible if it is so
  unnecessarily suggestive as to create very
  substantial likelihood of misidentification
• Later in court identification is also
  inadmissible if very substantial risk of
  irreparable misidentification
• Both judged by totality of circumstances
• High standard
• Applies to any type of procedure, at any time

9
The Due Process Approach contd

• Procedure must be suggestive
• And unnecessary (Stovall v. Denno)
• Even unnecessarily suggestive ID admissible if
  there are sufficient indices of reliability
  (Manson v. Brathwaite)
• Factors include witness opportunity, degree of
  attention, accuracy of prior description,
  certainty, elapse of time, corrupting influences
  of suggestion

10
Alternatives to Exclusion

• Corroboration requirement
• Jury Instructions
• Expert testimony

11
Problem 10-1

• Did line up violate due process?
• Suggestiveness D didnt understand commands
  slow reactions made him stand out.
• Unnecessary did police take reasonable steps to
  assure fair procedure?
• Reliability?

12
Next time

• Right to counsel, pp. 819-850