Lesson 12: Pretrial Identification Procedures

1
Lesson 12 Pretrial Identification Procedures

• Lack of 5th Amendment right against
  Self-Incrimination
• 6th Amendment Right to Counsel
• 5th and 14th Amendment right to Due Process

2
5th Amendment Right against Self-Incrimination

• Doesnt apply to non-testimonial evidence
• E.g. voice exemplars, police line-ups,
  fingerprints, etc.
• Schmerber v. California (1966)
• Dr. takes blood sample to prove DUI not
  testimonial evidence, so no right against self-
  incrimination
• (Note Pretrial ID doesnt usually involve 4th
  Amendment rights either)

3
6th Amendment Right to Counsel

• After Formal Charges made US. v. Wade (1967)
• Factors to consider in determining whether
  courtroom ID is independent
• Prior opportunity to observe
• Discrepancy b/t pre-lineup and actual description
• Any ID prior to lineup of another person
• ID by picture of defendant prior to lineup
• Failure to ID defendant on prior occasion
• Lapse of time b/t alleged act and lineup ID

4
6th Amendment Right to Counsel

• Prior to Formal Charges Kirby v. Illinois
  (1972)
• Show-ups
• Pre-charges - no
• Post-charges - yes
• Photo ID or mug shots
• Role of Counsel in Pretrial ID

5
5th and 14th Amendment Rights to Due Process

• Due Process in procedures Neil v. Biggers
  (1972)
• Neil Test
• Procedure was so impermissibly suggestive as to
  give rise to a real and substantial likelihood of
  irreparable misidentification
• One person show-ups not favored but sometimes
  allowed

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Factors considered in determining if lineup
violates Due Process

• Witnesss opportunity to view criminal at time of
  the crime
• Witnesss degree of attention at that time
• Accuracy of any prior description given by
  witness
• Level of certainty demonstrated by the witness at
  the identification
• Length of time between crime and ID
• Suggestiveness of the ID procedure

7
Suggested Guidelines for Lineup Procedures

• Lineups should have at least 5 people
• All participants must be same sex, race, and
  approximately same age. Also, personal
  characteristics should be close (e.g. weight,
  hair color, etc.)
• Participants should wear same type of clothing
• Accused should be placed in lineup randomly so as
  not to be suggestive
• Persons known to witness should not be in lineup
• Witnesses should view lineup separately
• Each participant should receive same instructions
• Photos should be taken of lineup so that it can
  later be reviewed for fairness

8
In Court Identification

• 6th Amendment or 5th (14th) Amendment violation
  makes evidence of pretrial ID inadmissible, but
  doesnt automatically exclude ID at trial if
  witness can do it w/out relying on prior ID
• To determine if in court testimony is admissible
  it must be purged of the taint of prior ID. See
  prior discussion.

9
Summary of Pretrial Identification Rights
Right to Counsel? Right to Due Process? 4th Right - Unreasonable SS? 5th Right -Against Self Incrimination?
Lineups Yes, if after formal charges no if before Yes No No
Showups Yes, if after formal charges no if before Yes No No
Photo ID No Yes No No