321: Listen and Learn -- Criminal Procedure: Identifications (Part 1)

Episode Transcript
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Lee Burgess (00:01):
Welcome to the Bar Exam Toolbox podcast.
Today we're covering the topic ofcriminal identifications, as part
of our "Listen and Learn" series.
This is Part 1 of a two-part series.
Your Bar Exam Toolbox hosts are AlisonMonahan and Lee Burgess, that's me.
We're here to demystify the barexam experience, so you can study
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(00:25):
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(00:46):
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Welcome back!
Today we are going to talk aboutthe rules surrounding criminal
identification procedures.
When you think of how the police verifythat they have identified the correct

(01:30):
suspect in their investigation, youprobably think of a scene from your
favorite crime drama - a group of similarlooking people lined up in a room with
one-way glass, while a witness standson the opposite side, tries to pick out
the person they saw commit the crime.
This kind of identificationprocedure is called a "lineup",

(01:54):
and it is one of several methodspolice use to identify suspects.
We'll begin today by looking atspecific rules you'll want to
address when a question involves acriminal identification procedure.
After that, we'll apply what we'velearned to a couple of hypotheticals.

(02:15):
The first step in analyzingwhether a criminal identification
procedure is suspect is tothink about the identification
procedure used in the question.
In addition to a lineup like the onewe described earlier, the police may
use identification procedures such asfingerprinting, blood or DNA testing,

(02:35):
voice identifications, photo arrays- which are similar to lineups, in that a
photograph of the suspect is included withphotographs of other people, and showups,
cold shows, or field identifications- where the witness is only shown one person
for identification, which are typicallyused when the suspect is apprehended

(02:58):
quickly after the crime occurred.
Witnesses are also often askedto identify the suspect in court.
Once you have narrowed down the typeor types of identification procedure
involved, the next step is to think aboutat what point in the criminal proceedings
the identification procedure occurred.

(03:19):
Why is this important?
Well, because the timing helpsus determine whether or not the
defendant was entitled to have counselpresent during the identification
procedure under the Sixth Amendment.
You may recall from some of our priorepisodes on criminal procedure the right
to counsel under the Sixth Amendmentattaches once formal adversarial

(03:44):
judicial proceedings have commenced.
Formal adversarial judicial proceedingsare things like formal charges for a
crime that carries a substantial riskof jail time, a preliminary hearing,
an indictment, or an arraignment.
This is important to remember as you thinkabout criminal identification procedures.

(04:07):
Going back to the timing of theidentification procedure, if the
defendant has already been chargedwith a crime before a lineup or a
showup occurs, the defendant hasa right to counsel under the Sixth
Amendment, which includes the attorney'spresence at the lineup or showup.

(04:29):
A post-charge witness identificationmade by lineup or showup without
the presence of the defendant'scounsel is inadmissible.
On the other hand, if the lineup orshowup occurs before the defendant
has been formally charged, the rightto counsel under the Sixth Amendment
has not yet attached, and the lineupor showup or other identification

(04:53):
procedure can be conducted withoutthe suspect's counsel present.
Though other constitutionalprotections that we aren't going to
cover today may still be relevant.
The issue of timing gets a bit morenuanced when the identification procedure
is a photo array, fingerprinting,or blood testing that takes place

(05:17):
after the defendant has been charged.
In this situation, even though thedefendant's right to counsel has
attached, the defendant's attorneyis not entitled to be present
during the identification procedure,unless the defendant is present.
Keep in mind that when the right tocounsel under the Sixth Amendment has

(05:40):
attached, the defendant's attorney maybe present at the lineup or showup, but
the attorney is not entitled to determinehow the police conduct the lineup.
However, the attorney's presence may actas a check on how the procedure takes
form, and the attorney's observationsmay form the basis for the defendant

(06:01):
to challenge the identification.
Now, since we're talking about aright to an attorney, you might
also be thinking about the FifthAmendment protections against
self-incrimination and right to counsel.
However, there is no Fifth Amendmentright to counsel in these scenarios.

(06:22):
And courts have held thatpre-trial identifications - blood
tests, fingerprints, and voiceidentifications - are not testimonial
in nature, so the protection againstself-incrimination doesn't apply.
Once the suspect is in custody,the suspect cannot refuse to
participate in a lineup or showup.

(06:45):
The second issue that comes upin this context is whether the
defendant's due process rightsunder the Fourteenth Amendment have
been violated, based on the way theidentification procedure was conducted.
To analyze whether the identificationprocedure violated the defendant's
Fourteenth Amendment due process rights,you will need to decide based on balancing

(07:09):
the totality of the circumstances,[1] whether the identification was
unnecessarily suggestive; and [2] whetherthe suggestiveness of the identification
procedure created a substantiallikelihood of misidentification.
Keep in mind that the burden hereis on the defendant to show that

(07:30):
the identification procedure wasa violation of their Fourteenth
amendment due process rights.
Also, if there is no improper policeconduct involved, an identification
that was suggestive or conducive tomisidentification may still be admitted.
In these cases, the reliabilityof the identification is

(07:51):
left to the jury to decide.
If your analysis leads you to concludethat an out-of-court identification
should not be admitted, then anin-court identification of the
subject is also barred, unless theprosecution can establish an independent
source for the identification.
Under the independent source rule, theprosecution must show that, [1] the

(08:16):
witness identified the defendant incourt based on the witness's previous
knowledge; [2] the witness's previousknowledge is trustworthy; and [3]
the witness's previous knowledge wasobtained by the witness in a previous
transaction, usually during the crime.
Now that we have an understanding ofthese rules, let's look at a hypothetical

(08:39):
to test some of what we have learned.
This example is from the February2003 bar exam, but it has been
modified from the original:
"After Don was arraigned on acharge of first-degree murder for
killing Vic, the police learnedthat Wes had witnessed the killing.
Aware that Don had been arraigned andwas scheduled for a preliminary hearing

(09:03):
at the courthouse on that day, a policeofficer took Wes to the courthouse
for the express purpose of having himattempt to identify the killer from
the photographs of several suspects.
As Wes walked into the courthousewith one of the officers, they
encountered Don and his lawyer, Lou.

(09:24):
Without any request by the officer,Wes told the officer that he
recognized Don as the killer.
Lou was advised that the prosecutionintended to introduce Wes'
identification into evidence.
Lou moved to exclude evidence of thecourthouse identification by Wes, on

(09:44):
grounds that the identification procedureviolated Don's federal constitutional
rights to counsel and due process of law.
The court denied the motion.
Did the court err in denying Don's motion?
Discuss."
Okay.
In this question, we have twoidentification procedures to think about.

(10:07):
First, we have the planned photo array,and second, we have a showup, because
Wes only observed one person - Don- at the time of the identification.
The facts also tell us that Don has beenarraigned on the charges against him and
he was attending a preliminary hearing.
So we know that formal adversarialproceedings have been commenced

(10:30):
against Don, and his Sixth Amendmentright to counsel has attached.
Remember that there is no right to counselduring a photo array identification,
even if it takes place after the SixthAmendment right to counsel attaches.
Therefore, had the photo arraytaken place, Don would not have had

(10:52):
the right to have counsel present.
Now, let's look at thecourthouse steps showup.
Don was talking with Lou when Wesmade the identification, but it
doesn't seem like Don and Lou wereaware that the showup was going on.
Lou would argue that the police officerwas aware that Don would be at the

(11:13):
courthouse at the same time as Wes, andthis was an intentional setup to create
an encounter and conduct a showup.
There are no facts to suggest that Louwas aware that the photo array procedure
or this showup was going to take place.
So, Lou might argue that hislack of awareness was akin

(11:34):
to not being there at all.
The prosecution would counter that sinceLou was present when Wes identified
Don, there was no violation of Don'sSixth Amendment right to counsel.
Also, the prosecution would assert thatthe encounter was an accident, and argue
that it is not relevant that Don and Louweren't aware that the identification

(11:59):
procedure was occurring, because Loucouldn't dictate how the identification
procedure was conducted anyway.
The prosecution's argumentis the winner here.
Since Lou was present at the showup,there was no violation of Don's
Sixth Amendment right to counsel.
A defendant's right to counsel at ashowup is in part to ensure that the

(12:21):
lawyer can make arguments against thereliability of the identification,
and when there is police misconduct,argue that the identification should
be suppressed on due process grounds.
Lou can do both of those thingsin Don's case, because Lou was
present, even if he didn't knowwhat was going on at that time.

So, this brings us to the second issue: Did this showup violate Don's due process (12:44):
undefined
rights under the Fourteenth Amendment?
Well, let's recall our rule.
The due process clause of theFourteenth Amendment is violated
when, based on the totality of thecircumstances, the identification is
so unnecessarily suggestive that itresults in a substantial likelihood

(13:06):
of irreparable misidentification.
Also, remember that Loubears the burden of proof.
Lou would argue that this showup wasunnecessarily suggestive, because
the location and circumstanceswere designed to induce Wes
to identify Don as the killer.
Since a photo array generally takes placeat a police station, having Wes go to

(13:30):
the courthouse was out of the ordinary.
Additionally, the police were awareof the pre-trial hearing and selected
the same date, and apparently thesame time, to have Wes show up too.
This suggests that the police intendedthat Wes see Don with his lawyer at
the courthouse, so that Wes, who wasspecifically at the courthouse to try

(13:54):
to identify the killer, would associateDon with the criminal proceedings.
Lou would assert that these circumstanceswere suggestive enough that it created
a substantial likelihood that Wes wouldincorrectly identify Don as the killer.
On the other hand, the prosecutionwould argue that Don's presence at the
courthouse is not on its own suggestive ofguilt or involvement in a criminal case.

(14:19):
Even if the encounter was intentional,Don was not in custody and was moving
about freely, which reduces the chancethat Wes would misidentify Don as the
person he saw commit the killing, basedon the location of the identification.
Also, the officer did notprompt Wes to identify Don.

(14:41):
Wes volunteered his identificationspontaneously, which indicates that West
was confident that he was accuratelyidentifying the person he saw kill Vic.
On balance, though this courthouseshowup was definitely suggestive,
it wasn't unnecessarily suggestive.

(15:02):
Therefore, the court could reasonablyfind that it was not so suggestive that
it resulted in a substantial likelihoodof irreparable misidentification.
Well, that's all we have for youtoday, in Part 1 of our criminal
Identification procedures episodes.
Join us next time for Part 2, wherewe'll examine another hypothetical

(15:23):
that demonstrates these principles.
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(15:46):
take a second to leave a review andrating on your favorite listening app.
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If you have any questions or comments,please don't hesitate to reach out to
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(16:07):
Or reach out to us via our contactform at BarExamToolbox.com.
Thanks for listening, and we'll talk soon!

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.css-14f5ked{margin:0;word-break:break-word;display:-webkit-box;-webkit-box-orient:vertical;box-orient:vertical;-webkit-line-clamp:2;overflow:hidden;}321: Listen and Learn -- Criminal Procedure: Identifications (Part 1)