What standard applies to identification of a defendant? to what? and when?
- STANDARD
- the due process standard applies
- TO WHAT
- all types of identifications
- WHEN
- @ ALL stages of investigatory and procedural process
What is the focus on the due process requirement for identification?
- Focus is on reliability
- Was the procedure used unreasonably suugestive
- that the suggestiveness created an unreliable identification
- RULE: Was the id procedure used by the gov’t so (1) unreasonably suggestive that it (2) created an irreparable risk of mistaken id.
- YES = id may not be used @ trial
- NOTE - in isolated cases, use of inherently suggestive process do not violate due process if it was necessary under the circumstances
What factors do you need to consider to determine whether an unreasonably suggestive procedure resulted in an unreliable identification?
- oppty to view criminal @ scene
- witness degree of attention
- accuracy of witness’s description
- degree of certainty of the witness
- time interval bet. crime & id
- more time less reliable
What happens to a subsequent in-court id by the same withess if the prior out-of-court statement is excluded b/c it violates due process?
RULE - If a prior out-of-court id is excluded b/c violates due process, the subsequent id of the individual by the same witness in-court is also excluded.
Recap - 1. When does the 6th Amendment right to counsel attach?
The 6th Amendment right to counsel attaches when _____________
Recap: 2. What is the Miranda rule and when does it apply?
RULE -
APPLIES** - When the suspect is both in **custody and interrogation
Recap: 3. When does an identification procedure violate due process?
- When the id is unreasonably suggesstive that it
- createds the risk of irreparable mistaken idenity/an unreliable identification
- Applies to all types of id, to all indivudals whether a suspect or a defndant
Factors to consider when determining the unreliablility of an id are:
- the oppty to view criminal @ scene
- degree of certainty by the witness
- the duration between the time of crime & id
- the witness’s accuracy of description
- the degree of attention by the witness
When can you exclude eyewitness id b/c of a violation of the right to counsel?
If a suspect’s 6th Amend. right to counsel is violated during either:
- an in person id (corporeal id) AND
- only after the initiation of adversial process (from suspect to D) (critical stage)
- the id will be excluded
D imay not be subjected to human in person id w/o counsel present or a knowing & voluntar waiver of the assistance of one.
What is the effect to an in person out-of-court id when 6th Amend right to counsel violated?
- id is per se inadmissible @ trial
- prohitbits the witness from making an in-court subsequent id
- UNLESS the prosecution can prove:
- clear & convincing evidnce
- in-court id independent from inadmissible out-of-court id
- LOOK to reliablity factors to determine if in-court id was independant
- UNLESS the prosecution can prove:
HYPO
Carlos is arraigned on a charge of robbery and placed in a lineup. Two witnesses described the suspected robber as a 5½-foot-tall Hispanic male with black hair and “tan”, and Carlos was the only Hispanic in the lineup while four others were tanned males of northern European descent with black hair, and all are 5’7”–6’. One witness only had a “brief” look at the suspect at night, and did not otherwise know him. The other said he recognized the robber as an old high school friend named Carlos. Carlos’ lawyer is late for the lineup and the police go ahead without her because they don’t want to inconvenience the witnesses. Both pick Carlos from the lineup. Will they be able to testify that they identified Carlos in the lineup when called as witnesses at trial? What about making an in-court identification of Carlos?
- The out-of-court id does not come in b/c it is per se inadmissible since it violates the 6the Amend right to counsel. Carlos was arraigned so that triggered the right to counsel & it does not matter if counsel was not present due to her own negligence
- For in-court
- no to the one who just briefly saw him & did not know him b/c no clear & convincing evidence that id was independent
- Yes, the 2nd one can do an in-court id b/c there is clear & convincing evidence since he stated he recognized him from high school prior to id
Question 3
Police were investigating the sale of cocaine in a certain neighborhood. Based on a tip from a reliable informant, Defendant became a suspect in the investigation. The police set up a controlled buy of cocaine from Defendant, using the same informant. After the controlled buy, the police obtained an arrest warrant and arrested Defendant, but did not advise him of his Miranda rights. At the police station prior to his arraignment, a police officer asked Defendant why the police should believe Defendant, a drug dealer. Without ever executing a Miranda waiver and without an attorney present, Defendant responded, “I might not be the most honest guy in the world, but I do not sell cocaine.” On cross-examination at trial, the prosecutor asked Defendant whether he had a reputation for honesty. Defendant responded, “Absolutely, everybody knows that I always tell the truth.” The prosecutor then offered to admit into evidence Defendant’s statement to police that he wasn’t the most honest person. Defendant’s attorney objected to the introduction of this statement.
How should the court rule?
A) The court should sustain the motion because Defendant had not waived his Miranda rights.
B) The court should sustain the motion because Defendant’s Sixth Amendment right to counsel was violated during the interrogation.
C) The court should deny the motion because it was proper to use Defendant’s statement for impeachment purposes.
D) The court should deny the motion because Defendant volunteered the statement.
C) The court should deny the motion because it was proper to use Defendant’s statement for impeachment purposes.
Question 4
An armed robbery occurred at a liquor store. The robber had long hair and a distinctive tattoo on his left arm. When police interviewed the clerk of the liquor store, they learned that the clerk knew the name and address of the robber, who was a childhood friend of the robber. Police went to the home of the robber (hereinafter “Defendant”) and placed him under arrest. Due to the clerk’s unavailability (because he went out of town on vacation), police were not able to hold a lineup until after a grand jury indicted Defendant. When the clerk returned from his vacation, police held a lineup with Defendant and five other men who looked like Defendant, but none of the other men in the lineup had a tattoo on the left arm. Police failed to inform Defendant’s attorney of the lineup, so she was not present at the lineup. The clerk immediately identified Defendant as the robber. At trial, the clerk testified that he knew Defendant since childhood, knew immediately that he was the robber, and identified Defendant as the robber. A jury took three minutes to find Defendant guilty.
On appeal, how should an appellate court rule?
A) The appellate court should affirm the conviction because the in court ID was properly admitted.
B) The appellate court should reverse the conviction because the in-court identification of Defendant at trial should not have been admitted into evidence.
C) The appellate court should reverse the conviction because the lineup was unnecessarily suggestive and the in court identification was therefore tainted.
D) The appellate court should reverse the conviction because the holding of the lineup without Defendant’s attorney being present violated Defendant’s Sixth Amendment right to counsel.
A) The appellate court should affirm the conviction because the in court ID was properly admitted.
