Identification Evidence

Question 1

Two Bases to Challenge the Admissibility of Identification Evidence

Answer 1

Include:

• the procedures violated DP; or
• the procedures violated the Sixth Amendment right to counsel

Question 2

DP Standard

Answer 2

If the D can prove that an identification procedures used by the gov was so unnecessarily suggestive that it created an irreparable risk of mistaken identification, the procedure violates DP and the ID is inadmissible. The test is whether the the ID is inherently unreliable.

Question 3

What the D Must Prove to Satisfy the DP Standard

Answer 3

• That procedures used were unnecessary
• That the procedures were arranged by the government
• That the procedures were suggestive
• That the suggestiveness of the procedures resulted in an “irreparable risk” of an unreliable ID.

Question 4

Application of DP Standard

Answer 4

The DP standard applies to all types of identifications (physical or photo) at all stages of the investigatory and prosecutorial process.

Question 5

When an Identification is Suggestive and Unnecessary But Still Reliable (Important Factors)

Answer 5

TOC test including:

• Whether there was an opportunity to view the criminal at the scene
• The Ws degree of attention
• The accuracy of the Ws description
• The degree of certainty of the W; and
• The time interval between the crime and the identification

Question 6

DP Standard: Necessary Suggestive Procedures

Answer 6

The use of inherently suggestive procedures because doing they are necessary under the circumstances (for example, because police believe the W is about to die) does not violate DP.

Question 7

Sixth Amendment Standard

Answer 7

An out-of-court, in-person id procedure conducted after a formal charge is a critical stage in the adversarial process, therefore it violates the Sixth Amendment to conduct such a procedure unless the Ds counsel is present or the D executes a knowing and voluntary waiver.

Question 8

Sixth Amendment Standard: Reason for Lawyer’s Absence?

Answer 8

It does not matter why the defense lawyer is not present at the out-of-court identification. Even if the police act in total good faith, and the lawyer is absent because of his own negligence, the requirement still applies.

Question 9

Consequences for Violating the Sixth Amendment Standard

Answer 9

Include:

• Inadmissibility of results at trial (no exception) and
• The W is prohibited from making a subsequent in-court identification of the defendant unless the prosecution can prove by clear and convincing evidence that the in-court identification is independent from the inadmissible out-of-court identification.

Question 10

Photo Arrays

Answer 10

A D has no right to counsel at a photo array, regardless of whether it was pre-charge or post-charge.