III. LINE-UPS (IDENTIFICATION PROCEDURES)

III. LINE-UPS (IDENTIFICATION PROCEDURES)

1. Overview

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  Post-indictment line-ups and show-ups are “critical stages” of the case at which the defendant’s 6^th Amend right to counsel applies (Wade).
  
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  If D has not yet been indicted, then whether 6^th Amend applies depends upon whether formal adversarial judicial proceedings (FAJP) have otherwise been initiated (whether by way of formal charge, preliminary hearing, information, indictment or arraignment) as this is the point from which the 6^th Amend right to counsel attaches (as govt has “committed itself to prosecute”) (Kirby).
  
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  Right to counsel under 6^th Amend is justified based upon (Wade):
  
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    1) Limited opportunity for cross-examination/challenging evidence at trial (i.e. D is not in a position to observe suggestive inferences made by police and therefore doesn’t know what is going on behind the scenes – unlike scientific evidence which can be challenged without lawyer needing to be present for DNA testing as these tests can be “easily reconstructed”, it is very difficult for D’s counsel to successfully reconstruct a line-up); and
    
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    2) Preventing planting of seed for misidentification at the outset (i.e. reduce potential for suggestive inferences and miscarriages of justice from mistaken identity).
    
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  No right to counsel at photo array (Ash).
  
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  Even if identification is highly suggestive but reliable then it may still be admissible (Manson).
  
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  Line-ups are not prohibited by the 5^th Amend (SC has unequivocally held that compelling someone to stand in a line up is not self-incriminating as 5^th Amend protects against testimonial evidence and standing in line up (or giving handwriting or voice exemplars) isn’t testimonial).
  
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  Note: Suggestive practices might include having only white people in the line-up where there the defendant is black etc. Even if counsel is present, he does not need to object contemporaneously in order to preserve right to challenge line-up (Prof).
  
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  Where D has been denied his right to counsel, then in-court testimony of the unconstitutional line-up will be suppressed under the exclusionary rule.
  

2. Post-indictment line-ups and show-ups

Wade (1967) (p.160) (6^th Amend right to counsel applies at post-indictment line-ups)

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  Held: Post-indictment lineups are “critical stages” of the case at which the defendant’s 6th Amend right to counsel applies. As D was not represented nor waived his right to counsel, his 6^th Amend right had been violated. See justification set out above (limited opportunity to challenge credibility of witnesses and to prevent “seeds” of misidentification being planted by suggestive influences from police).
  

Gilbert (1967) (p.161) (in-court testimony of unconstitutional line-up is excluded)

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  Held: Where an unconstitutional line-up is held in violation of D’s right to counsel, there is a per se exclusionary rule with respect to in-court testimony of the eyewitnesses specifically mentioning the unconstitutional line-up.
  

Stovall (1967) (p.160) (urgent need to show D to witness did not violate due process)

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  Held: Imperative need to show D to witness in hospital (who was seriously injured and about to go in for major surgery) was permissible, even though D was shown by himself (suggestive procedure), given the extenuating circumstances. The rule in Wade only applies to future line-ups, not retroactively. However, D could prevail if he could show that his due process rights under the 14^th Amend were violated (i.e. that the ID was “so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law”) but SC held that the identification procedure, though suggestive, was necessary because of the witness’ injured state.
  

Example: Police videotape line-up and witnesses response, but the defendant’s lawyer is not present. Applying Wade you could argue that the videotape avoids the constitutional concerns because the videotape will be provided to the defendant’s counsel so he will be able to see exactly what happened and challenge the identification evidence under XXN. But defense counsel could argue that you don’t know what is happening off camera so it still doesn’t fully remedy the issue of not having counsel present.

3. Pre-indictment line-ups and show-ups

Rule: 6^th Amend right to counsel only attaches from initiation of formal adversarial judicial proceedings (FAJP) (Kirby)
Kirby (1972) (p.162) (6^th Amend right to counsel only attaches from initiation of FAJP)

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  Held:
  
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    6^th Amend right to counsel only attaches from initiation of formal adversarial judicial proceedings (FAJP), whether by way of formal charge, preliminary hearing, information, indictment or arraignment.
    
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    The initiation of FAJP is not mere formalism but rather that starting point at which the government has committed to prosecute. It is the point that marks the commencement of the “criminal prosecutions” to which the 6^th Amend applies.
    
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    As FAJP had not commenced, D was not entitled to counsel at line-up.
    
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  Prof: Kirby is a strange decision, why does pre-indictment make any difference to the justifications for having counsel present (i.e. limited opportunity to challenge evidence / preventing suggestive influences)? Also, if “indictment” is the “line”, then the “line” is actually drawn at FAJP which can start from a “formal charge”. Also, it is unsettled whether an arrest warrant issued by a magistrate = FAJP.
  

Moore (1977) (p.163) (6^th Amend right attaches even at preliminary court hearing)

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  Facts: Witness identified D at preliminary court hearing (to determine whether there was PC to bind D over to grand jury and to set bail) at which he was unrepresented.
  
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  Held: It was plain that the government had “committed itself to prosecute” and therefore the 6^th Amend right to counsel had attached.
  

4. Photo arrays

Rule: No 6^th Amend right to counsel at photo array (Ash)
Ash (1973) (p.164) (no right to counsel at photo array)

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  Held: No 6^th Amend right to counsel at photographic identification by witness (as Wade concerns do not apply given that D is not present), however, this does not preclude a due process violation.
  

Manson (1977) (p.165) (if ID is highly suggestive but still reliable then it may still be admissible)

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  Facts: D’s photo was shown to an undercover police officer that identified him as the perpetrator.
  
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  Held: Even where the identification procedure is highly suggestive, it may still be admissible if there is sufficient evidence of reliability. Reliability is the lynchpin in determining the admissibility of identification testimony where suggestive practices have been alleged – “totality of the circumstances test”. Factors to be weighed against the corrupting effect of the suggestive identification include:
  
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    The opportunity of the witness to view the criminal at the time of the crime;
    
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    The witness’ degree of attention;
    
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    The accuracy of his prior description of the criminal; and
    
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    The witness’ level of certainty
    
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  Prof: The gradual erosion of Wade is really sad, out of all of the developments of the Warren SC, this seemed the least controversial.
  

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