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The classic eyewitness identification takes place in court, with the witness pointing to the defendant and stating ‘‘That’s the perpetrator.’’ Such identifications are usually preceded by out-of-court identifications, using one of three procedures: (1) lineups, in which a witness is asked to pick a suspect out of a line of people; (2) show-ups, in which a witness is shown just one suspect and asked whether that suspect was involved in the incident at issue; or (3) photo arrays, in which a witness is asked to pick a suspect’s photo out of an array of photos. Constitutional challenges to those procedures have focused on four provisions: the Fourth Amendment’s prohibition on unreasonable searches and seizures; the Fifth Amendment’s prohibition of compelled self-incriminating testimony; the injunction in both the Fifth and Fourteenth Amendments that government not deprive persons of life or liberty without due process of law; and the Sixth Amendment’s guarantee of assistance of counsel and the right to confront witnesses. Each of these challenges are discussed below. Also discussed are two other issues: the process for determining whether an identification procedure was unconstitutional and the admissibility of identifications that are the ‘‘fruit’’ of a constitutional violation.
Search and Seizure
The Supreme Court has held that a person does not have a reasonable expectation of privacy in personal characteristics that are exposed to the public, such as one’s visage or the sound of one’s voice (United States v. Dionisio, 410 U.S. 1, 14 (1973)). Thus, viewing a face in a lineup or showup is not a ‘‘search’’ for purposes of the Fourth Amendment prohibition of unreasonable searches and seizures. However, the Court has also held that the police ‘‘seizure’’ of a person for the purpose of subjecting him or her to an identification procedure does implicate the Fourth Amendment (Hayes v. Florida, 470 U.S. 811, 816 (1985); Davis v. Mississippi, 394 U.S. 721, 724 (1969)). Under these circumstances, the police need, at a minimum, reasonable suspicion that the person is involved in the crime, unless the person is being used as a distractor and is already in custody, in which case no suspicion is necessary.
Because the Fifth Amendment privilege against self-incrimination prohibits only compulsion of ‘‘testimony,’’ the Supreme Court has held that the government does not violate that Amendment when it compels a person to stand in a lineup, wear certain clothes, and speak for the purposes of voice identification (Holt v. United States, 218 U.S. 245, 252–3 (1910); Schmerber v. California, 384 U.S. 757, 764 (1966). These actions, while possibly helpful to the prosecution’s case against the person and therefore ‘‘self-incriminating,’’ are considered ‘‘nontestimonial.’’
The first Supreme Court case to apply the due process clause to pretrial eyewitness identification procedures intimated that any procedure that unnecessarily suggested to the eyewitness that the defendant was the perpetrator would be declared unconstitutional (Stovall v. Denno, 388 U.S. 293, 301–02 (1967)). Although the Court ultimately upheld the one-on-one confrontation in that case because it was ‘‘imperative’’ (the eyewitness was confined to a hospital bed and near death), its language suggested that this ‘‘widely condemned’’ procedure would not have been permitted had there been time to arrange a lineup or photo array. Subsequent to Stovall some lower courts adopted a ‘‘per se’’ rule to the effect that unnecessarily suggestive identification procedures should lead to exclusion of identifications thereby produced.
Within a decade, however, the Court made clear that reliability, not unnecessary suggestiveness, is the ‘‘linchpin’’ of due process analysis (Neil v. Biggers, 409 U.S. 188, 198–9 (1972); Manson v. Braithwaite, 432 U.S. 98, 114 (1977)). The reliability of an eyewitness identification, according to the Court, is to be gauged by the eyewitness’ opportunity to view the perpetrator, the degree of attention the eyewitness is able to direct at the perpetrator, the accuracy of any description the eyewitness gives, the witness’s level of certainty about the identification, the time between the crime and the eyewitness identification, and like factors. Thus, in Biggers, the Court held constitutional a one-on-one confrontation that occurred several months after the crime, because the witness had been with the perpetrator for well over fifteen minutes, had refused to identify the perpetrator during previous lineups and showups, and was certain of her identification. In Braithwaite, an identification of the defendant from a single photo placed on the eyewitness’s desk was upheld because the eyewitness viewed the perpetrator for two to three minutes, was a trained police officer, gave a detailed description of the perpetrator, identified the defendant from the photo within two days, and was certain of his identification.
Rights to Counsel and Confrontation
In United States v. Wade, 388 U.S. 218 (1967), a companion case to Stovall, the Supreme Court held that persons subjected to lineups after they have been indicted are entitled to the assistance of counsel under the Sixth Amendment. Subsequently, it held that the right to counsel also attaches at post-charge showups (Moore v. Illinois, 434 U.S. 220 (1977)). There is no right to counsel at a photo array, however, whether it occurs prior to or after formal charging (United States v. Ash, 413 U.S. 300 (1973)). These cases raise three significant issues: How are photo arrays distinguishable from lineups and showups for purposes of the right to counsel? Why does the right to counsel attach only after formal charge? And what is the role of counsel when the right attaches?
Wade justified its decision by concluding that ‘‘there is grave potential for prejudice, intentional or not, in the pretrial lineup’’ and that counsel can ‘‘avert [that] prejudice and assure a meaningful confrontation [of it] at trial.’’ In other words, counsel is needed to make sure the lineup is properly conducted and, if he or she fails in that goal, to record its flaws and expose them at later proceedings through cross-examination and presentation of other evidence. Without counsel, defendants would clearly be unable to accomplish the first goal (recording flaws), because they are not trained to notice irregularities and may not even see them, especially if they take place behind a one-way mirror. Even if they do detect problems, defendants are almost as useless in assisting counsel in the second goal (exposing flaws), because their word will be pitted against that of the police or prosecutor.
This rationale supporting counsel’s presence at lineups would seem to apply with even more force to photo arrays, since the defendant is not present at the latter type of identification procedure; here defense counsel hoping to expose procedural irregularities is entirely dependent on the police and the eyewitness, who are unlikely to be disposed to help. Yet it was the defendant’s absence at the photo array that led the Court, in Ash, to reject a right to counsel claim at the latter type of identification procedure. Because the defendant’s absence at the photo array means he is not confronted with the ‘‘intricacies of the law and the advocacy of the public prosecutor,’’ the Court reasoned, there is no need for counsel at such procedures. Of course, lineups and showups do not involve such confrontations either. The Ash majority also noted that a photo array is more easily reproduced at trial than a lineup procedure but, as the dissent pointed out, the conduct of the police and witness during the photo identification is as important as the array itself in determining reliability. Ash seemed to reject Wade’s reasoning, but did not overturn it.
There is no right to counsel even at lineups and showups if they take place prior to the formal charging of the defendant (which is usually the case). This was the holding in Kirby v. Illinois, 406 U.S. 682, 690 (1972), which construed the Sixth Amendment’s language guaranteeing the assistance of counsel ‘‘in all criminal prosecutions’’ to apply only to actions that occur after the initiation of ‘‘adversary judicial criminal proceedings . . . by way of formal charge, preliminary hearing, indictment, information, or arraignment.’’ Of course, if counsel is useful in terms of detecting, preventing, or exposing suggestiveness, that would be as true prior to formal charging as after that event. Setting the Sixth Amendment threshold at arrest might make more sense. But in Kirby, presaging Ash, the Court insisted that only at formal charging is the defendant ‘‘faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law’’ to the extent necessary to require the assistance of counsel.
When the right to counsel does attach, counsel’s role is unclear. Wade states that counsel can both ‘‘avert prejudice’’ and ‘‘assure a meaningful confrontation [of it] at trial.’’ The first role, with its intimation that counsel can suggest changes in procedures, is more active than the second, which implies that the attorney should function as an observer who will then use the observations to the client’s advantage at later proceedings. It is unlikely the Wade Court meant to give counsel authority to compel particular police procedures. At most, lower courts have held, counsel should be able to make objections and preserve them for the record if police fail to heed them (e.g., People v. Borrego, 668 P.2d 21 (Colo.App. 1983)). Moreover, many lower courts have held that counsel is allowed access only to the identification itself, not to collateral components of it such as witness descriptions of the perpetrator or post-procedure interviews of the witnesses (e.g., United States v. Bierey, 588 F.2d 620 (8th Cir. 1978)). If the only role of counsel is observation of the procedure, a videotape or snapshot might be constitutionally sufficient; Wade itself recognized that ‘‘substitute counsel’’ may be permissible under the Sixth Amendment.
Process for Determining Admissibility
The prosecution bears the burden of proving that a waiver of the right to counsel at the identification procedure was voluntary and intelligent, and it also bears the burden of proving that an in-court identification was not tainted by an earlier unconstitutional identification procedure, while the defendant bears the burden of showing a due process violation. Normally, a pretrial ‘‘suppression’’ hearing is held to determine whether a constitutional violation occurred and the identification should be excluded. But in Watkins v. Sowders, 449 U.S. 341, 349 (1981), the Supreme Court held that, at least when the defendant makes a due process claim, the admissibility issue may be determined in the presence of the jury, because the issue raised by such claims—whether the identification is reliable—is ‘‘the very task our system must assume juries can perform.’’ However, the Court held that pretrial determinations of admissibility ‘‘may often be advisable’’ and perhaps even ‘‘constitutionally necessary’’ if, for instance, the presence of the jury inhibits the attorney’s cross-examination of those who conducted the procedure.
Even an identification made during a properly conducted procedure may be excluded if it is considered the ‘‘fruit’’ of a constitutional violation. But such exclusions are rare. For instance, social science suggests that identifications made during suggestive procedures can taint later identifications. But courts routinely hold that these later identifications are based on an ‘‘independent’’ memory of the criminal event, using the same types of factors that inform the reliability analysis (e.g., opportunity to view the act). Sometimes identification procedures are properly conducted, but the presence of the suspect in the lineup or showup is the result of an illegal detention under the Fourth Amendment, as described above. The resulting identification may be deemed inadmissible ‘‘fruit’’ of the detention, but a subsequent in-court identification will usually be admissible if the judge finds it is based on an independent recollection of the criminal event (United States v. Crews, 445 U.S. 463 (1980)). Because an illegal arrest is not a bar to subsequent prosecution (Frisbie v. Collins, 342 U.S. 519 (1952)), the defendant’s presence in court and any untainted identification that occurs there is not unconstitutional.
- GRANO, JOSEPH ‘‘Kirby, Biggers, and Ash: Do Any Constitutional Safeguards Remain against the Danger of Convicting the Innocent?’’ Michigan Law Review 72, no. 4 (1974): 717–794.
- GROSS, SAMUEL. ‘‘Loss of Innocence: Eyewitness Identification and Proof of Guilt.’’ Journal of Legal Studies 16 (1987): 395–453.
- LEVINE, FELICE, and TAPP, JEAN L. ‘‘The Psychology of Criminal Identification: The Gap from Wade to Kirby.’’ University of Pennsylvania Law Review 121, no. 3 (1973): 1079–1131.
- POLSKY, LEON; UVILLER, H. RICHARD; ZICCARDI, VINCENT J.; and DAVIS, ALAN J. ‘‘The Role of the Defense Lawyer at a Lineup in Light of the Wade, Gilbert, and Stovall Decisions.’’ Criminal Law Bulletin 4, no. 5 (1968): 273–296.
- READ, FRANK ‘‘Lawyers at Lineups: Constitutional Necessity or Avoidable Extravagance?’’ UCLA Law Review 17, no. 2 (1969): 339–407.
- ROSENBERG, BENJAMIN. ‘‘Rethinking the Right to Due Process in Connection with Pretrial Identification Procedures: An Analysis and a Proposal.’’ Kentucky Law Journal 79 (1991): 259– 316.
- WHITEBREAD, CHARLES, and SLOBOGIN, CHRISTOPHER. Criminal Procedure: An Analysis of Cases and Concepts, 4th ed. New York: Foundation Press, 2000. See chaps. 17–18.