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Criminal Evidence 6th Edition Norman M. Garland Chapter 10 Exclusionary Rule— Identification Procedures

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Page 1: Criminal Evidence 6th Edition Norman M. Garland Chapter 10 Exclusionary Rule— Identification Procedures

Criminal Evidence6th Edition

Norman M. Garland

Chapter 10Exclusionary Rule—

Identification Procedures

Page 2: Criminal Evidence 6th Edition Norman M. Garland Chapter 10 Exclusionary Rule— Identification Procedures

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Identification Procedures and the Right to Counsel

o The Sixth Amendment to the Constitution states, in part: “In all criminal prosecutions, the accused shall . . . have the assistance of counsel for his defense.”

Page 3: Criminal Evidence 6th Edition Norman M. Garland Chapter 10 Exclusionary Rule— Identification Procedures

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Identification Procedures and The Exclusionary Rule

o Both pretrial and in-court identifications may be inadmissible if a defendant’s Fourth, Fifth, Sixth, or Fourteenth Amendment rights were violated during the investigative identification procedure.

Page 4: Criminal Evidence 6th Edition Norman M. Garland Chapter 10 Exclusionary Rule— Identification Procedures

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

The Three Basic Types of Identification Procedures

1. Show Ups: one-on-one presentation of a suspect to a victim or witness.

2. Lineups: presentation of similar looking persons to a victim or witness.

3. Photographic Arrays: presentation of a number of photos.

Page 5: Criminal Evidence 6th Edition Norman M. Garland Chapter 10 Exclusionary Rule— Identification Procedures

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

The Right to Counsel:A Fundamental Right

o The United States Supreme Court has held that the right to counsel at trial is a fundamental right.

o This right applies to the states through the Fourteenth Amendment Due Process Clause whenever a defendant’s trial may result in incarceration.

Page 6: Criminal Evidence 6th Edition Norman M. Garland Chapter 10 Exclusionary Rule— Identification Procedures

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

The Critical Stage Test for the Right to Counsel

o As early as 1932, the United States Supreme Court observed that “the period from arraignment to trial was ‘perhaps the most critical period of the proceedings . . .’ during which the accused ‘requires the guiding hand of counsel . . . if the guarantee is not to prove an empty right.’”oPowell v. Alabama, 287 U.S. 45, 57, 59

Page 7: Criminal Evidence 6th Edition Norman M. Garland Chapter 10 Exclusionary Rule— Identification Procedures

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

What is a critical stage?o A critical stage begins at the

initiation of an adversarial judicial proceeding, whether by way of a formal charge, preliminary hearing, indictment, information, or arraignment.

o Any pretrial event requiring the presence of counsel can be a critical stage, analogous to a trial, where the accused may be overpowered by his or her professional adversary.

Page 8: Criminal Evidence 6th Edition Norman M. Garland Chapter 10 Exclusionary Rule— Identification Procedures

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

The Test to Determine a Critical Stage

o The test of a critical stage is whether at "the trial itself . . . no substitute for counsel” can be provided to a defendant in the event that “a pretrial confrontation is conducted in the absence of counsel.”oUnited States v. Ash, 413 U.S. 300

(1973)

Page 9: Criminal Evidence 6th Edition Norman M. Garland Chapter 10 Exclusionary Rule— Identification Procedures

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

United States v. Wade: Source of Right to Counsel at Pretrial

Lineupo The Court held that the post-indictment lineup is a critical stage of the prosecution at which the accused is as much entitled to the aid of counsel as at the trial itself.

o The Wade decision extended the exclusionary rule to post-indictment pretrial lineups, where a defendant has been denied his or her Sixth Amendment right to counsel.

Page 10: Criminal Evidence 6th Edition Norman M. Garland Chapter 10 Exclusionary Rule— Identification Procedures

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

When Counsel NeedNot Be Present: First Case

o If a defendant has not been formally charged with a criminal offense, he or she is not entitled to the assistance of counsel at an identification proceeding.

Page 11: Criminal Evidence 6th Edition Norman M. Garland Chapter 10 Exclusionary Rule— Identification Procedures

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

When Counsel NeedNot Be Present: The Second Case

o When a suspect, who has not been indicted or otherwise formally charged, is placed in a lineup, counsel need not be present.

Page 12: Criminal Evidence 6th Edition Norman M. Garland Chapter 10 Exclusionary Rule— Identification Procedures

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Identification Procedures and Due Process

o Even if no violation of the right to counsel exists, an identification may still be excluded.

o The core of the issues relating to misidentification are the Due Process Clauses of the Fifth and Fourteenth Amendments.

o These clauses preserve the right to a fair trial.

Page 13: Criminal Evidence 6th Edition Norman M. Garland Chapter 10 Exclusionary Rule— Identification Procedures

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Effect of Illegal Pretrial Identification on In-Court Identification

o It is possible for an out-of-court identification to be illegal while the identification made at trial is admissible.

o On the other hand, if the in-court identification is so influenced by the illegal out-of-court identification as to be a product of it, then the in-court identification will not be admissible either.

Page 14: Criminal Evidence 6th Edition Norman M. Garland Chapter 10 Exclusionary Rule— Identification Procedures

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

The Test to Considero The test is whether or not the in-

court identification is sufficiently free of the taint from the out-of-court identification to be trustworthy.

o Moreover, any case involving a legally questionable pretrial identification inevitably involves the question of whether or not the in-court identification should be admitted.

Page 15: Criminal Evidence 6th Edition Norman M. Garland Chapter 10 Exclusionary Rule— Identification Procedures

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Only Unnecessarily Suggestive Pretrial

Identifications Are Illegalo The question is whether, under

the totality of the circumstances, the identification procedure was unnecessarily suggestive.

Page 16: Criminal Evidence 6th Edition Norman M. Garland Chapter 10 Exclusionary Rule— Identification Procedures

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Stovall v. DennoIssues of Suggestiveness in Identification

Apart from Right to Counselo The Court held that a pre- or post-

indictment identification procedure that is unnecessarily suggestive and conducive to irreparable mistaken identification violates the due process rights of an accused.

o To determine when an identification procedure is unnecessarily suggestive, the Court stated that “a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it.”

Page 17: Criminal Evidence 6th Edition Norman M. Garland Chapter 10 Exclusionary Rule— Identification Procedures

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Neil v. Biggers5-Factor Test for Suggestive

Identification Cases1. The opportunity of the witness to

view the criminal at the time of the crime.

2. The witness’s degree of attention. 3. The accuracy of the witness’s prior

description of the criminal.4. The level of certainty demonstrated

by the witness at the confrontation.5. The length of time between the

crime and the confrontation.

Page 18: Criminal Evidence 6th Edition Norman M. Garland Chapter 10 Exclusionary Rule— Identification Procedures

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Types of Suggestive Identification Procedures

o Size of the Lineup or Arrayo Collaboration Between Witnesseso Police Instructions or Statements to

Witnesseso Make-Up of the Lineup or Photo

Arrayo Different Appearance of the Accusedo Other Suggestive Procedures

Pertaining Solely to Photo Arrays

Page 19: Criminal Evidence 6th Edition Norman M. Garland Chapter 10 Exclusionary Rule— Identification Procedures

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

An Exceptiono Even though the use of a single

photograph or show-up is highly suggestive, the court will nonetheless justify its use in certain emergency or exigent circumstances, such as when the witness is in danger of dying.

Page 20: Criminal Evidence 6th Edition Norman M. Garland Chapter 10 Exclusionary Rule— Identification Procedures

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Police Instructions or Statements to Witnesses

o Officers should not tell a witness that the photo array or the lineup includes a defendant already in custody since the witness may then be more likely to choose the person who most closely resembles the person they observed, rather than selecting no one at all.

Page 21: Criminal Evidence 6th Edition Norman M. Garland Chapter 10 Exclusionary Rule— Identification Procedures

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Different Appearanceof the Accused

o The most important thing in creating a lineup or photo array is that the lineup or array includes persons matching the defendant’s general physical description.

Page 22: Criminal Evidence 6th Edition Norman M. Garland Chapter 10 Exclusionary Rule— Identification Procedures

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

The Testo “The test is whether the photograph of

the accused, [or the defendant himself in a lineup], matching descriptions given by the witness, so stood out from all the other photographs as to suggest an identifying witness that that person was more likely to be the culprit . . . .” U.S. v. Jakobetz

o “The individuals in the photographic display and lineup [should be] of the same race, possess similar physical features, and be alike in size, age, and dress.” Salam v. Lockhart

Page 23: Criminal Evidence 6th Edition Norman M. Garland Chapter 10 Exclusionary Rule— Identification Procedures

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Other Suggestive Procedures Pertaining Solely to Photo

Arrayso Different Type or Quality of

Photoso Contents on and Around the

Photographso Alteration and Disguise of the

Photographs

Page 24: Criminal Evidence 6th Edition Norman M. Garland Chapter 10 Exclusionary Rule— Identification Procedures

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Determining the Reliability of a Suggestive Identification

o The five factors of the Biggers case.

o Is the identification clothed with indicia of reliability? Are there facts indicating an identification is reliable?

Page 25: Criminal Evidence 6th Edition Norman M. Garland Chapter 10 Exclusionary Rule— Identification Procedures

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

What contributes the reliability?

o The longer the witness’s opportunity to view the offender.

o The greater attention to the offender at the time of the offense.

o The more detailed the initial description from the witness.

o The greater the certainty demonstrated by the witness.

o The shorter the length of time between the crime and the lineup.

Page 26: Criminal Evidence 6th Edition Norman M. Garland Chapter 10 Exclusionary Rule— Identification Procedures

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Biggers—The First Factor:The Witness’s Opportunity to View the

Criminal at the Time of the Crime

o The general rule is that if the witness had a good opportunity to view the defendant, then even if the pretrial identification was suggestive, it will be admissible because the viewing opportunity provided an independent basis for the identification.

Page 27: Criminal Evidence 6th Edition Norman M. Garland Chapter 10 Exclusionary Rule— Identification Procedures

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Biggers—The Second Factor: Witness’s Degree of Attention

o The second factor is whether the degree of attention the witness paid to the suspect during the event was sufficient that one could say that the witness’s ability to identify the accused in court was based on the independent identification and not upon an unnecessarily suggestive identification procedure before trial.

Page 28: Criminal Evidence 6th Edition Norman M. Garland Chapter 10 Exclusionary Rule— Identification Procedures

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Police and the Second Factorof Biggers

o Police officers pay a higher degree of attention to details than a lay witness because of the special training they receive in observational techniques.

Page 29: Criminal Evidence 6th Edition Norman M. Garland Chapter 10 Exclusionary Rule— Identification Procedures

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Biggers—The Third Factor: Accuracy of the Description

o There is no set rule for determining how accurate an initial description of the defendant must be in order to find an independent basis to show the identification was reliable.

o The courts tend to look at whether or not the witness was able to approximate the defendant’s age, build, height, weight, skin color, clothing, and any other physical characteristics.

Page 30: Criminal Evidence 6th Edition Norman M. Garland Chapter 10 Exclusionary Rule— Identification Procedures

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Biggers—The Fourth Factor: Level of Certainty Demonstrated by

the Witness at the ConfrontationThere are two issues surrounding the certainty of a witness:

oThe degree of certainty required to support the admissibility of an identification.

oThe point at which the witness became certain.

Page 31: Criminal Evidence 6th Edition Norman M. Garland Chapter 10 Exclusionary Rule— Identification Procedures

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Biggers—The Fifth Factor:Length of Time Between the Crime

and the Confrontation

o The shorter the time interval between the crime and the identification, the more reliable it is.

o Nonetheless, a long interval alone is usually not enough to invalidate an otherwise seemingly reliable identification.

Page 32: Criminal Evidence 6th Edition Norman M. Garland Chapter 10 Exclusionary Rule— Identification Procedures

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Eyewitness Evidence: A Guide for Law Enforcement

o In 1999, the U.S. Department of Justice released the Guide that suggested ways in which eyewitness testimony can become more reliable. In 2001, New Jersey was the first state to adopt the recommendations, which include suggestions on:o Use and presentation of fillers in a lineupo Witnesses instruction on viewing a lineup o Viewing of photos by a witnesso Instructions to all present at a lineup to avoid

influencing the witness selection