Identifications

Question 1

Due Process Rule of identifications

Answer 1

If d can prove that an identification procedure used by government was so unnecessarily suggestive that it created an irreparable risk of mistaken identification then the procedure violates due process and cannot use ID at trial

Question 2

The focal point of the due process test is reliability, which requires D to prove both:

Answer 2

1) procedures used were unnecessarily suggestive +

2) the suggestiveness produced an unreliable ID

Question 3

Factors for due process test:

Answer 3

1) opportunity to view criminal at scene
2) witness’s degree of attention
3) accuracy of witness’s description
4) degree of certainty of witness;
and
5) time interval between crime and identification (the longer the interval, the less reliable)

Question 4

6th amendment right to counsel violation:

Answer 4

out of court corporeal identification (human, in person) is a critical stage in adversarial process and D cannot be subject to it w/out counsel present or a knowing and voluntary waiver of counsel

Question 5

Consequences of 6th amendment right to counsel violation

Answer 5

If police conduct a corporeal lineup in violation of 6th amendment:

1) results are per so inadmissible at trial and
2) witness is prohibited from making a subsequent in court IF of D unless prosecution can prove by clear and convincing evidence that in court Id is independent from inadmissible out of court ID.