Pre-Trial Identification

Question 1

What are the three types of pre-trial ID?

Answer 1

1. Lineups: witness asked to ID the perp from a group.
2. Showups: one-on-one confrontation between witness and suspect.
3. Photo array: witness picks perp out of a series of photos.

Question 2

What are the sources of challenges to pre-trial IDs?

Answer 2

1. Denial of the Right to Counsel (6th Am)

2. Denial of Due Process

Question 3

When does a D have the right to counsel during a pre-trial ID?

Answer 3

During lineups and showups that take place after formal charging.

in NY: Ds have the right to an attorney at any lineup conducted before filing of formal charges if police know D has counsel and D requested counsel’s presence.

Question 4

When does a pre-trial ID violate 14th Am. Due Process?

Answer 4

when it is so unnecessarily suggestive that it creates a substantial likelihood of irreparable misidentification. The court must weigh:
Reliability of the suggestive ID vs. its corrupting effect on the witness.

Question 5

What is the standard remedy for unlawful pre-trial IDs?

Answer 5

Exclusion of the witness’s in-court identification.

Question 6

When is an in-court identification allowed despite an unlawful pre-trial identification?

Answer 6

If prosecution can prove the in-court ID is based on observations of the suspect other than the unlawful pre-trial ID.

Question 7

What are the factors prosecutors can use to prove an in-court ID is not tainted by an unlawful pre-trial ID?

Answer 7

1. W’s opportunity to view the D at the crime scene.
2. the certainty of W’s observation
3. The specificity of the description W gave to the police.