Pretrial Identifications

Question 1

Three types of pretrial identifications

Answer 1

1. Line-ups: witness is asked to identify the perpetrator from a group
2. Show-ups: one-on-one confrontation between the witness and the suspect
3. Photo arrays: witness is shown a series of photos and is asked if she sees the perpetrator among them

Question 2

Substantive Challenges to Pretrial IDs

Answer 2

1. Denial of Right to Counsel
2. Violation of Due Process

Question 3

Denial of Right to Counsel

Answer 3

1. FIFTH AMENDMENT: There is no Fifth Amendment right to counsel under the Miranda doctrine for pretrial identification procedures.
2. SIXTH AMENDMENT: A right to counsel exists under the Sixth Amendment at lineups and showups that take place after formal charging; however, there is no Sixth Amendment right to counsel at photo arrays.

Question 4

Violation of Due Process

Answer 4

• A pretrial identification procedure violates the Due Process Clause of the Fourteenth Amendment when it so _unecessarily suggestive t_hat it creates a substantial likelihood of misidentification.
• In making this determination, courts must weigh the reliability of a suggestive identification against its corrupting effect.

Question 5

Remedial Considerations

Answer 5

• The remedy for constitutional violations in pretrial identifications is the exclusion of a witness’s in-court identification.
• However, even if there is a constitutional violation in a pretrial identification procedure, an in-court identification will still be allowed if the prosecution can prove that it is based on observations of the suspect other than the unconstitutional show-up, line-up or photo array.
• To make this showing, the prosecution can point to factors such as:
  
  • (1) the witness’s opportunity to view the D at the crime scene ;
  • (2) the specificity of the description given to the police; and
  • (3) the certainty of the witness’s identification.