What are the three types of pretrial identification procedures?
- Lineups (witness asked to identify suspect from multiple people);
- Showups (witness is presented with single suspect); and
- Photo-arrays
When does a suspect have a right to counsel for a lineup or showup?
At any post-charge, in-person lineup or showup
When does a suspect not have a right to counsel for an identification procedure?
- Pre-charge lineups or showups; and
- Non-live identification (e.g. examining photographic lineups, fingerprinting, photo arrays)
If police act in good faith, but D’s lawyer is absent due to his own negligence, can the police proceed with the lineup?
No, this is still a 6th Amendment violation.
What is the remedy when a post-charge, in-person lineup occurs without counsel present?
- Identification is inadmissible at trial; and
- Witness will be prohibited from making a subsequent in-court identification of D unless the prosecution can prove that the witness has an independent source of identification
When do pre-trial identification procedures violate due process?
If D can show that, in light of the totality of the circumstances:
- The police intentionally made the identification unnecessarily suggestive; and
- The identification produced an irreparable misidentification/is unreliable
Due process applies to which types of identification procedures?
All types of ID procedures at all stages of the process
What are examples of impermissibly suggestive lineups?
- Lineup when suspect is a man and all of the other individuals are women;
- Lineup where the suspect is one race and all the other individuals are another race;
- Lineup where the suspect has a different appearance than the other individuals; or
- Lineup where the witness knows all of the individuals except the suspect
When is a suggestive lineup not impermissibly suggestive?
When the lineup is justified by exigent circumstances
What is the remedy for a due process violation during the identification process?
D can seek to suppress the identification via a suppression hearing.
If D meets his burden, evidence will be suppressed and the witness will not be able to subsequently identify D at trial.
⚠️ Exception: if the witness can identify D based upon knowledge from a source that is independent of the impermissible identification, they will be allowed to identify D at trial.
What factors does the court weigh when determining the reliability of the witness?
- Opportunity to see D during the criminal act;
- Discrepancies between the witness’s pre-lineup description of D and D’s actual description;
- Whether the witness had initially identified a different suspect;
- The witness’s degree of exposure to D before the in-person identification (e.g. was shown several photos of the defendant)
- Whether the witness failure to identify D on a prior occasion(s);
- Lapse of time between the crime and identification; and
- How certain the witness is that D is the perpetrator
The right to counsel is found in which 2 Amendments?
5th Amendment and 6th Amendment
What is the 6th Amendment right to counsel?
Guarantees D the right to counsel during all critical stages of the adversarial process. Only applies to crimes where D may be sentenced to incarceration.
More info: Right to counsel
Is there a 6th Amendment right to counsel for misdemeanors?
No, unless actual incarceration is imposed
Does the 6th Amendment right to counsel protect D against interrogations about other crimes?
No, the 6th Amendment right to counsel is offense-specific (i.e. only applies to interrogations about the offense charged). Thus, the police can question D without counsel present about any other crimes.
When is the 6th Amendment right to counsel triggered?
Begins with the initiation of formal adversarial process (ex. formal charge, indictment, arraignment, or preliminary hearing). Once right is triggered, D is entitled for counsel for all subsequent proceedings.
Under the 6th Amendment, what are considered the critical stages of a proceeding?
Post-indictment:
- In-person lineups and identifications
- Preliminary hearings;
- Bail hearings;
- Interrogations;
- Plea bargaining negotiations; and
- Appeals as a matter of right
What stages are considered not critical? (i.e. no right to counsel)
- Discretionary appeals;
- Fingerprinting;
- Parol or probation hearings
- Photo arrays;
- Pre-indictment lineups;
- Probable cause hearings;
- Taking handwriting, voice, or blood samples;
How can D waive their 6th Amendment right to counsel?
If D:
- Knowingly and voluntarily waives his rights;
- Without government coercion
If D has waived his 6th Amendment right to counsel, are statements made without counsel admissible?
Yes, but only if D made the statements voluntarily
What is the difference between the 5th Amendment right to counsel and the 6th Amendment right to counsel?
5th Amendment:
- Applies to all crimes, not offense-specific
- Only applies during custodial interrogations
- Must be invoked by a clear statement demanding counsel
6th Amendment:
- Only applies to the crime charged, offense specific
- Applies to all critical stages of a proceeding
- Automatically invoked once criminal proceedings have begun
Once formal proceedings have begun, can police elicit statements from D via a confidential informant without the presence of counsel?
No, police cannot deliberately induce statements from D about the crime charged without counsel present. Statements will be inadmissible.
However, the police can question D about other charges, and they can place a microphone or informant in the cell to “listen” to D, as long as there is no deliberate elicitation of statements.
What must D show to reverse a conviction on the basis of ineffective assistance of counsel?
D has the burden to prove that:
- Counsel’s performance fell below an “objective standard of reasonableness;” and
- A reasonable probability that, but for the counsel’s error, the proceeding would have had a different outcome
