The 6th Amendment - Aug. 24 -Sept. 13 Flashcards
Can an out-of-court identification of a criminal defendant be suppressed as unduly suggestive under the Due Process Clause if the identification was not orchestrated by law enforcement? (Q)
No. If the identification was not orchestrated by law enforcement, an out-of-court identification of a criminal defendant cannot be suppressed as unduly suggestive under the Due Process Clause.
For an identification procedure to be suppressed as unduly suggestive under the Due Process Clause, the procedure must have been arranged by law enforcement. For there to be any constitutional violation at all—and, hence, a remedy such as suppressing evidence—there must be government action. If law enforcement does not orchestrate the identification, there is no government action and, thus, no constitutional violation to remedy.
Could evidence of a pretrial identification procedure by law enforcement be admissible even if the procedure producing it was unnecessarily suggestive? (Q)
Yes. Evidence of a pretrial identification procedure by law enforcement could be admissible even if the procedure producing it was unnecessarily suggestive.
Evidence of the identification will be inadmissible under the Due Process Clause only if the procedure was unnecessarily suggestive, and the resulting identification was ultimately unreliable. The court will consider the totality of the circumstances to determine whether the identification is reliable.
If law-enforcement officers employ an unnecessarily suggestive identification process, what principal factors will a court consider when determining whether the resulting pre-trial identification is reliable? (Q)
In assessing the reliability of a pre-trial identification resulting from an unnecessarily suggestive procedure, courts will consider the totality of the circumstances. Principal factors to consider include:
the witness’s opportunity to view the perpetrator at the time of the crime,
how much attention the witness paid to the perpetrator,
the accuracy of the witness’s prior description of the perpetrator,
the time that elapsed between the crime and the identification, and
the degree of certainty the witness exhibited during the identification procedure.
In general, if a witness’s pretrial identification of a defendant as the perpetrator is inadmissible on due-process grounds, may the witness identify the defendant as the perpetrator at trial? (Q)
No. In general, if a witness’s pre-trial identification of a defendant as the perpetrator is inadmissible on due-process grounds, the witness may not identify the defendant as the perpetrator at trial.
There is one exception. If the witness can identify the defendant relying solely on knowledge gleaned completely independently of the unconstitutional procedure producing the pretrial identification, then the witness may take the stand and identify the defendant at trial.
Could evidence of a pretrial identification procedure by law enforcement be admissible even if it is so suggestive as to undermine the reliability of the resulting identification? (Q)
Yes. Evidence of a pretrial identification procedure by law enforcement can be admissible even if it is so suggestive as to undermine the reliability of the resulting identification.
To exclude evidence of a pretrial law-enforcement identification procedure, the Due Process Clause requires both that the procedure be unnecessarily suggestive, and that the resulting identification be unreliable under the totality of the circumstances. In addition, the suggestive procedure must have been unnecessary under the circumstances. If exigent circumstances supported using a suggestive process at the time—i.e., if using an alternative, more reliable process was not practicable—there is no due-process violation.
Is a one-person show-up procedure categorically an unconstitutionally suggestive procedure under the Due Process Clause? (Q)
No. A one-person show-up procedure–in which a complaining witness is asked to confirm the identity of a suspect without being offered any alternative individuals to identify—is not categorically an unconstitutionally suggestive procedure under the Due Process Clause. The Supreme Court has described these procedures as extremely suggestive, observing that they have been strongly condemned. The Court has not, however, interpreted the Due Process Clause to ban the procedure.
In practice, the procedure is commonly used. It is generally justified as a necessary and even useful tool when the suspect is presented to the complaining witness shortly after the alleged crime, ideally at the scene.
Before trial, a witness identified the defendant as the perpetrator. At trial, the court ruled the identification constitutionally invalid, on the ground that the law-enforcement procedure producing it was unnecessarily suggestive, and it was unreliable. However, the government showed that the witness had an independent basis to identify the defendant as the perpetrator, separate and apart from the illegal process itself.
May evidence of that pretrial identification be introduced at trial? (Q)
No. Evidence of the pretrial identification may not be introduced at trial. If an out-of-court pretrial identification procedure is unconstitutionally suggestive and produces an unreliable identification, evidence that the witness identified the defendant during that unconstitutional procedure is inadmissible as a matter of due process. An independent basis for recognizing the suspect may permit the witness to identify the defendant in court, but it does not permit introduction of evidence of the earlier, out-of-court identification.
Here, the underlying procedure yielding the pretrial identification was unconstitutionally suggestive, and the identification was unreliable. Thus, evidence of the identification is inadmissible. The witness’s independent basis for recognizing the defendant might allow identification at trial, but the pretrial identification may not be introduced as evidence.
Before trial, a witness identified the defendant as the perpetrator. At trial, the court ruled the identification constitutionally invalid, on the grounds that the law-enforcement procedure producing it was unnecessarily suggestive, and it was unreliable. The prosecution wanted to call the same witness at the defendant’s criminal trial to identify the defendant in court as the perpetrator. To support admitting the testimony, the prosecution showed that the witness had an independent basis to identify the defendant as the perpetrator, separate and apart from the illegal process itself.
Is the in-court identification admissible? (Q)
Yes. The in-court identification is admissible. A witness who participated in an unconstitutionally suggestive pretrial identification procedure is not automatically barred from separately identifying the defendant in court, during trial. The admissibility of the subsequent, in-court identification will be assessed under the fruit-of-the-poisonous-tree doctrine. For the in-court identification to be permitted, the prosecution must show, by clear and convincing evidence, that the witness has an independent basis to recognize the defendant as the perpetrator. “Independent” means wholly apart from the illegal pretrial procedure.
Here, the witness does have a basis to identify the defendant as the perpetrator, wholly apart from the illegal procedure. Thus, the in-court identification is admissible.
Just after an armed robbery, the victim approached a police officer and described the robber as a young man wearing a t-shirt and jeans. Shortly after, about three blocks away, police apprehended a young man who matched that general description. The police brought the young man to the crime scene in handcuffs and showed him to the victim, who claimed to be “70 percent sure” that the young man was the robber. Prior to trial, the young man moved to suppress all evidence of this one-man show-up identification as unconstitutionally suggestive. The trial court concluded that the procedure was suggestive, and the identification was not reliable. The victim’s initial description was vague, and the identification was tentative.
Does constitutional due process require suppressing evidence of the show-up procedure at trial? (Q)
No. Constitutional due process does not require suppressing evidence of the show-up procedure at trial. Due process bars admitting an out-of-court identification when the identification procedure:
was conducted by law enforcement,
was suggestive,
produced an unreliable identification, and
was unnecessary under the circumstances.
Here, the first three conditions are satisfied. Law enforcement conducted the show-up. The trial court concluded that the process was suggestive, and the identification unreliable. However, the fourth condition is not satisfied. Courts generally deem an on-the-scene show-up identification to be a permissible, valuable, and even necessary law-enforcement tool, given the speed with which it is conducted following the offense. The procedure here was therefore not unnecessary, so no due-process violation occurred.
The victim of a robbery chased the perpetrator but lost sight of him. The victim entered a subway station. Inside, she saw two police officers questioning a young man whom they had just observed trying to jump the turnstile. Believing the young man to be the robber, the victim approached the officers and identified him as the robber. Prior to trial, the young man moved to suppress the identification as unduly suggestive, as he was then in police custody and was the only person whom the victim had a chance to identify. The court concluded that the circumstances of the identification were unnecessarily suggestive, producing an unreliable identification.
Does constitutional due process require suppression of the identification? (Q)
No. Constitutional due process does not require suppression of the identification. For an unreliable pretrial identification to be suppressed as the product of an unduly suggestive procedure on due-process grounds, the procedure must have been arranged by law-enforcement actors. Otherwise, there is no government action and, hence, no constitutional violation to remedy.
Here, the police officers were involved in the circumstances leading to the identification, but they did not orchestrate it. On the contrary, the officers did not even know that the victim was identifying the young man as the robber until after the identification occurred. Because the police did not orchestrate the identification, there was no government action and, thus, no constitutional violation. Constitutional due process does not require suppression of the identification.
While investigating a robbery, a detective had a hunch that the perpetrator was a suspect whom he had encountered while investigating unrelated crimes. The detective pulled that suspect’s photograph from a mugshot database and inserted it into an array containing photographs of four other people. The detective then showed the photo array to the robbery victim, asking her whether anyone in the array looked familiar. As he did so, he tapped his finger conspicuously on the face of the person he believed to be the perpetrator. The victim pointed to that person, who was thus charged with committing the robbery. Upon learning about the detective’s finger tapping, the defense attorney moved to suppress the identification as a due-process violation.
Should the motion be granted? (Q)
Yes. The defense’s motion to suppress the identification as a due-process violation should be granted. To suppress an out-of-court identification on due-process grounds, a defendant must show that the procedure producing the identification was unnecessarily suggestive and that the resulting identification was unreliable under all the circumstances. A procedure may be unnecessarily suggestive if police manipulate the process to influence the witness, without exigent circumstances to justify it.
Here, the detective’s conspicuous finger tapping seems meant to influence the witness, and no exigent circumstances appear to justify it, so the photo-array procedure was unnecessarily suggestive. Also, nothing about the context suggests that the identification was reliable despite the illegal procedure. Thus, the identification violates the Due Process Clause and cannot be admitted into evidence.
A kidnapper held a victim captive in his basement. Each morning and evening, the kidnapper would enter the basement to bring the victim food and speak to him for a few minutes. After three months’ confinement, the victim escaped and ran to a police station. Based on the victim’s description of the kidnapper’s house, the police arrested a defendant at his home. At the station, police told the victim, “We caught the guy.” They then showed the defendant to the victim, and asked him to confirm they had arrested the right person. The victim said, “Yes, that’s him.” The trial court held that the station-house identification procedure was unnecessarily suggestive and unreliable, making the identification inadmissible on due-process grounds.
Does due process also prohibit the victim from identifying the defendant as the kidnapper at trial? (Q)
No. Due process does not prohibit the victim from identifying the defendant as the kidnapper at trial. Under the Due Process Clause, an in-court identification is admissible, notwithstanding an unconstitutional out-of-court identification by the same witness, if there is an independent basis for the witness to identify the defendant as the perpetrator at trial. “Independent” means wholly separate from the unconstitutional pretrial identification procedure.
Here, the victim interacted with his kidnapper daily for three months. That extensive exposure had nothing to do with the circumstances at the station house. It is an independent basis for the victim to identify the defendant as the kidnapper, even if the station-house identification was itself unconstitutionally suggestive. Accordingly, the victim may identify the defendant as the kidnapper at trial.
Does the Sixth Amendment right to counsel apply against state and local governments? (Q)
Yes. The Sixth Amendment right to counsel applies against state and local governments. The Sixth Amendment, by its terms, applies only to the federal government. However, the U.S. Supreme Court has interpreted the Fourteenth Amendment Due Process Clause, which applies to the states, to incorporate the right to counsel against the state and local governments.
At what point in time does the Sixth Amendment right to counsel attach? (Q)
The Sixth Amendment right to counsel attaches once adversarial judicial proceedings commence against a criminal defendant, with respect to a particular crime. Adversarial judicial proceedings generally commence (1) upon the filing of formal charges, as by indictment, or (2) upon the defendant’s first court appearance with respect to the crime. Attachment means, in general, that the defendant has the right to the assistance of counsel in dealing with the government at each critical stage of the prosecution.
In general, what are the critical stages of a criminal prosecution, for purposes of the Sixth Amendment right to counsel? (Q)
In general, the critical stages of a criminal prosecution, for purposes of the Sixth Amendment right to counsel, are:
any pretrial occasion on which the government demonstrates deliberate, active efforts to elicit incriminating information from the defendant, whether known to the defendant or not (e.g., remote eavesdropping, interrogation, confidential informants, or lineups and similar procedures);
pretrial hearings that might affect the defendant’s substantial rights or the outcome of trial; and
the guilt and sentencing phases of trial.
The Sixth Amendment right to counsel does not apply beyond the sentencing phase of trial, though other constitutional provisions afford a limited right to counsel on appeal.
Does the Sixth Amendment right to counsel imply an exclusionary remedy? (Q)
Yes. The Sixth Amendment right to counsel implies an exclusionary remedy. That is, if the government gleans information from a defendant in a way that violates the defendant’s Sixth Amendment right to counsel, that information is inadmissible as substantive evidence of guilt at trial against the defendant. Also, under the derivative-evidence doctrine, physical evidence obtained due to the violation may be suppressed.
Once the Sixth Amendment right to counsel has attached with respect to an offense, under what circumstances may police actively and deliberately seek incriminating information from the defendant about the offense? (Q)
Once the Sixth Amendment right to counsel has attached with respect to an offense, police may actively and deliberately seek incriminating information from the defendant about the offense only if the defendant knows that he or she is interacting with the government and:
the defendant has the assistance of counsel in the interaction with the government or
knowingly, intelligently, and voluntarily waives the right to counsel.
In this context, the standards to determine whether a defendant has knowingly, intelligently, and voluntarily waived the right to counsel are identical to those that apply under the Miranda doctrine.