Identifications

Question 1

What are some problems wth Eye Witness Identification?

Answer 1

1. Faulty perception of event
   a) stress, lighting, obstruction, weapon focus, and distractions
2. Cross-racial mis-identifications
3. Memory problems over time
   a) confirmation bias
4. Problems with ID procedures

Question 2

What are the 3 types of ID procedures?

Answer 2

1. Show Up
2. Line Up
3. Photo Array

Question 3

What are the steps for analyzing an identification?

Answer 3

1. What ID procedure did the police use?
2. Did the ID procedure follow from a 4 A violation?
3. Did the D have a right to counsel at the ID procedure? (6 A)
4. Did the ID procedure violate due process? (14 A)
5. What happens to the in-court ID that follows a problematic out of ID? (Wade factors)

Question 4

Relationship between IDs and 6 A?

Answer 4

If 6 A has not attached yet, then there can be no ID violations.

If 6 A has attached, need determine if the D had a right to counsel during the ID procedure.

If it is a line up, then there is a right to counsel.
If it is a show up, then there is a right to counsel.
If it is a photo array, then there is a NO right to counsel.

Question 5

Is there a 6 A right to counsel at lineups?

Answer 5

Yes, but only if the 6 A has attached.

Question 6

Is there a 6 A right to counsel at photo array?

Answer 6

No, never.

Question 7

How does the 14 A protect against invalid identification procedures?

Answer 7

If, based on a TOC, the ID procedure is fundamentally unfair then the 14 A protects against the admissibility.

Look at the following factors:

1. Was the ID unnecessarily suggestive;
2. Was there unreliable ID procedures that violated due process?
3. What type of ID procedures was it?
   a. Show Up –> are inherently suggestive
4. Was the suspect in police custody?
5. Was the suspect shown by himself?
6. DId the suspect look way different then everyone else?
7. Was there any suggestiveness of guilt or dangerousness?
   a. Were they similar clothes as the assailant?

Question 8

What are mitigating factors that may make improper ID procedures okay?

Answer 8

Was there a necessity?

a. was it a gun felony?
b. Was the witness in the hospital about to undergo surgery?

[need to balance the necessity of the suggestive or improper procedure, with the accuracy of the identification].

Question 9

What are factors of reliability for an ID procedure?

Answer 9

Look at the witness’
1. Opportunity to view;
2. Degree of attention;
3. Accuracy of description;
4. Witness level of certainty; and
5. Time between crime & confrontation.

Question 10

If the out-of-court ID is tainted, how can the Prosecution bring in the in-court ID?

Answer 10

The prosecution must prove that the in-court ID is independent or sufficiently distinguishable to be purged of the primary taint of the improper out of court ID by CLEAR AND CONVINCING EVIDENCE.

a. The burden is on the P;
b. Standard == C&C

Question 11

What factors to determine if in-court ID should come in?

Answer 11

1. What as the W’s prior opportunity to view the suspect during the original criminal act?
   a. Factors affecting a witness’s ability to view the suspect (like stress and weapon focus)
2. Are there any discrepancies between W’s initial description and D’s actual appearance?
3. What was the lapse of time between the observation during the crime and ID procedure?
4. Did the witness identify another person prior to the line up?
5. Was there an ID by picture of D (or reliable ID) prior to the line-up/problematic ID procedure?
6. Did W fail to identify D on previous occasion before the problematic ID?

Question 12

Can an unnecessarily suggestive ID come in?

Answer 12

Yes, if under a TOC there are strong indicia of reliability.

Question 13

What are the three ways P can admit suggestive / improperly obtained identification?

Answer 13

Step 1: P proves that the ID was not suggestive by PoE.

Step 2: If suggestive, prove that the suggestivity was necessary by PoE. [See Stovall and Simmons]

Step 3: If it is unnecessarily suggestive, it may still be admissible if it is nonetheless reliable. [See Manson v. Brathwaite factors].

If the problematic / out of court ID is excluded, THEN using the WADE factors you establish that the in court ID is reliable enough [independent source.]