1. Criminal Evidence 6th Edition
Chapter 10
Exclusionary Rule— Identification Procedures
Criminal Evidence 6th Edition
Norman M. Garland

2. Identification Procedures and the Right to Counsel
The Sixth Amendment to the Constitution states, in part: “In all criminal prosecutions, the accused shall have the assistance of counsel for his defense.”
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3. Identification Procedures and The Exclusionary Rule
Both pretrial and in-court identifications may be inadmissible if a defendant’s Fourth, Fifth, Sixth, or Fourteenth Amendment rights were violated during the investigative identification procedure.
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4. The Three Basic Types of Identification Procedures
Show Ups: one-on-one presentation of a suspect to a victim or witness.
Lineups: presentation of similar looking persons to a victim or witness.
Photographic Arrays: presentation of a number of photos.
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5. The Right to Counsel: A Fundamental Right
The United States Supreme Court has held that the right to counsel at trial is a fundamental right.
This right applies to the states through the Fourteenth Amendment Due Process Clause whenever a defendant’s trial may result in incarceration.
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6. The Critical Stage Test for the Right to Counsel
As early as 1932, the United States Supreme Court observed that “the period from arraignment to trial was ‘perhaps the most critical period of the proceedings ’ during which the accused ‘requires the guiding hand of counsel if the guarantee is not to prove an empty right.’”
Powell v. Alabama, 287 U.S. 45, 57, 59
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7. What is a critical stage?
A critical stage begins at the initiation of an adversarial judicial proceeding, whether by way of a formal charge, preliminary hearing, indictment, information, or arraignment.
Any pretrial event requiring the presence of counsel can be a critical stage, analogous to a trial, where the accused may be overpowered by his or her professional adversary.
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8. The Test to Determine a Critical Stage
The test of a critical stage is whether at "the trial itself no substitute for counsel” can be provided to a defendant in the event that “a pretrial confrontation is conducted in the absence of counsel.”
United States v. Ash, 413 U.S. 300 (1973)
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9. United States v. Wade: Source of Right to Counsel at Pretrial Lineup
The Court held that the post-indictment lineup is a critical stage of the prosecution at which the accused is as much entitled to the aid of counsel as at the trial itself.
The Wade decision extended the exclusionary rule to post-indictment pretrial lineups, where a defendant has been denied his or her Sixth Amendment right to counsel.
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10. When Counsel Need Not Be Present: First Case
If a defendant has not been formally charged with a criminal offense, he or she is not entitled to the assistance of counsel at an identification proceeding.
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11. When Counsel Need Not Be Present: The Second Case
When a suspect, who has not been indicted or otherwise formally charged, is placed in a lineup, counsel need not be present.
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12. Identification Procedures and Due Process
Even if no violation of the right to counsel exists, an identification may still be excluded.
The core of the issues relating to misidentification are the Due Process Clauses of the Fifth and Fourteenth Amendments.
These clauses preserve the right to a fair trial.
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13. Effect of Illegal Pretrial Identification on In-Court Identification
It is possible for an out-of-court identification to be illegal while the identification made at trial is admissible.
On the other hand, if the in-court identification is so influenced by the illegal out-of-court identification as to be a product of it, then the in-court identification will not be admissible either.
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14. The Test to Consider
The test is whether or not the in-court identification is sufficiently free of the taint from the out-of-court identification to be trustworthy.
Moreover, any case involving a legally questionable pretrial identification inevitably involves the question of whether or not the in-court identification should be admitted.
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15. Only Unnecessarily Suggestive Pretrial Identifications Are Illegal
The question is whether, under the totality of the circumstances, the identification procedure was unnecessarily suggestive.
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16. Stovall v. Denno Issues of Suggestiveness in Identification Apart from Right to Counsel
The Court held that a pre- or post-indictment identification procedure that is unnecessarily suggestive and conducive to irreparable mistaken identification violates the due process rights of an accused.
To determine when an identification procedure is unnecessarily suggestive, the Court stated that “a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it.”
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17. Neil v. Biggers 5-Factor Test for Suggestive Identification Cases
The opportunity of the witness to view the criminal at the time of the crime.
The witness’s degree of attention.
The accuracy of the witness’s prior description of the criminal.
The level of certainty demonstrated by the witness at the confrontation.
The length of time between the crime and the confrontation.
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18. Types of Suggestive Identification Procedures
Size of the Lineup or Array
Collaboration Between Witnesses
Police Instructions or Statements to Witnesses
Make-Up of the Lineup or Photo Array
Different Appearance of the Accused
Other Suggestive Procedures Pertaining Solely to Photo Arrays
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19. An Exception
Even though the use of a single photograph or show-up is highly suggestive, the court will nonetheless justify its use in certain emergency or exigent circumstances, such as when the witness is in danger of dying.
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20. Police Instructions or Statements to Witnesses
Officers should not tell a witness that the photo array or the lineup includes a defendant already in custody since the witness may then be more likely to choose the person who most closely resembles the person they observed, rather than selecting no one at all.
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21. Different Appearance of the Accused
The most important thing in creating a lineup or photo array is that the lineup or array includes persons matching the defendant’s general physical description.
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22. The Test
“The test is whether the photograph of the accused, [or the defendant himself in a lineup], matching descriptions given by the witness, so stood out from all the other photographs as to suggest an identifying witness that that person was more likely to be the culprit ” U.S. v. Jakobetz
“The individuals in the photographic display and lineup [should be] of the same race, possess similar physical features, and be alike in size, age, and dress.” Salam v. Lockhart
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23. Other Suggestive Procedures Pertaining Solely to Photo Arrays
Different Type or Quality of Photos
Contents on and Around the Photographs
Alteration and Disguise of the Photographs
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24. Determining the Reliability of a Suggestive Identification
The five factors of the Biggers case.
Is the identification clothed with indicia of reliability? Are there facts indicating an identification is reliable?
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25. What contributes the reliability?
The longer the witness’s opportunity to view the offender.
The greater attention to the offender at the time of the offense.
The more detailed the initial description from the witness.
The greater the certainty demonstrated by the witness.
The shorter the length of time between the crime and the lineup.
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26. Biggers—The First Factor: The Witness’s Opportunity to View the Criminal at the Time of the Crime
The general rule is that if the witness had a good opportunity to view the defendant, then even if the pretrial identification was suggestive, it will be admissible because the viewing opportunity provided an independent basis for the identification.
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27. Biggers—The Second Factor: Witness’s Degree of Attention
The second factor is whether the degree of attention the witness paid to the suspect during the event was sufficient that one could say that the witness’s ability to identify the accused in court was based on the independent identification and not upon an unnecessarily suggestive identification procedure before trial.
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28. Police and the Second Factor of Biggers
Police officers pay a higher degree of attention to details than a lay witness because of the special training they receive in observational techniques.
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29. Biggers—The Third Factor: Accuracy of the Description
There is no set rule for determining how accurate an initial description of the defendant must be in order to find an independent basis to show the identification was reliable.
The courts tend to look at whether or not the witness was able to approximate the defendant’s age, build, height, weight, skin color, clothing, and any other physical characteristics.
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30. Biggers—The Fourth Factor: Level of Certainty Demonstrated by the Witness at the Confrontation
There are two issues surrounding the certainty of a witness:
The degree of certainty required to support the admissibility of an identification.
The point at which the witness became certain.
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31. Biggers—The Fifth Factor: Length of Time Between the Crime and the Confrontation
The shorter the time interval between the crime and the identification, the more reliable it is.
Nonetheless, a long interval alone is usually not enough to invalidate an otherwise seemingly reliable identification.
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32. Eyewitness Evidence: A Guide for Law Enforcement
In 1999, the U.S. Department of Justice released the Guide that suggested ways in which eyewitness testimony can become more reliable. In 2001, New Jersey was the first state to adopt the recommendations, which include suggestions on:
Use and presentation of fillers in a lineup
Witnesses instruction on viewing a lineup
Viewing of photos by a witness
Instructions to all present at a lineup to avoid influencing the witness selection
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