322: Listen and Learn -- Criminal Procedure: Identifications (Part 2)

Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Lee Burgess (00:00):
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 2 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
effectively, stay sane, and hopefullypass and move on with your life.

(00:23):
We're the co-creators of the Law SchoolToolbox, the Bar Exam Toolbox, and the
career-related website CareerDicta.
Alison also runs TheGirl's Guide to Law School.
If you enjoy the show, please leavea review on your favorite listening
app, and check out our sister podcast,the Law School Toolbox podcast.
If you have any questions, don'thesitate to reach out to us.
You can reach us via the contactform on BarExamToolbox.com,

(00:46):
and we'd love to hear from you.
And with that, let's get started.
Our podcast is supportedby SpacedRepetition.com.
Want to remember critical areas oflaw that you'll be tested on for
your finals, the MBE, or the NextGen?
Join 30,000 others usingSpacedRepetition.com's
scientifically proven method.
15% off any prep materials atcheckout with code TOOLBOX.

(01:10):
Welcome back!
Today we are continuing our discussionon criminal identification procedures, in
Part 2 of our "Listen and Learn" series.
In Part 1, we covered the key rulessurrounding criminal identification
procedures, including when the SixthAmendment right to counsel applies,
and how to analyze potential FourteenthAmendment due process violations.

(01:35):
We also analyzed a hypotheticalinvolving a courthouse identification.
Before we dive into our secondhypothetical, let's quickly review
the two-part test for analyzingpotential due process violations
in identification procedures.
First, we ask whether the identificationprocedure was unnecessarily suggestive.

(01:58):
Second, if it was suggestive, weask whether that suggestiveness
created a substantial likelihoodof irreparable misidentification.
Remember that courts look at thetotality of the circumstances
when making these determinations.
Some factors that might make anidentification procedure unnecessarily
suggestive include, [1] the subjectstanding out from others in a lineup

(02:24):
- different clothing, height, build,etcetera; [2] officers making comments
that point to a specific person; [3]using a showup when a lineup would be
feasible; [4] prior exposure of thewitness to photographs or descriptions
that might influence their choice.
When evaluating whether suggestivenessled to a substantial likelihood of

(02:46):
misidentification, courts often considerfactors like these: the witness's
opportunity to view the criminal atthe time of the crime, the witness's
degree of attention during the crime,the accuracy of the witness's prior
description, the level of certaintydemonstrated by the witness, the time

(03:07):
between the crime and the identification.
Now, let's apply these principlesto another hypothetical to
further develop our understanding.
This example is based on an October2020 California bar question.
Yep, the COVID bar exam!
This question is modifiedfrom the original:

(03:29):
"Vic's house was robbed one nightwhile Wanda happened to be walking by.
Wanda caught sight of twomen running out of the house.
The same night, Wanda described one ofthe men to the police as tall, clean
shaven, with short hair, and could onlystate that the other man was short.
Three weeks later, David, whois tall, and Al, who is short,

(03:51):
were arrested for the robbery.
The next day, a newspaper printed arecent photo of David, identifying him
as a suspect in the robbery and showinghim with a large beard and long hair.
When Wanda saw the photo in thenewspaper, she immediately went to
the police station and told OfficerOliver that she was concerned

(04:13):
that David might be the wrong man.
Officer Oliver told Wanda thatDavid had Vic's wallet in his
pocket when he was arrested.
Before David was arraigned, OfficerOliver arranged for Wanda to
view a lineup of six bearded menwith long hair, including David.

(04:33):
Three of the men wereconsiderably shorter than David.
After viewing the lineup for 20 minutes,Wanda identified David as one of the
men she saw running out of the house.
During his trial, David has movedto suppress Wanda's identification,
based on the FourteenthAmendment due process clause.

(04:55):
Should the court grant the motion?"
Going back to our rule for determiningwhether an identification violates the
defendant's right to due process underthe Fourteenth Amendment, we look at
whether based on the totality of thecircumstances, the identification is
so unnecessarily suggestive that itresults in a substantial likelihood

(05:17):
of irreparable misidentification.
To show that the lineup wasunnecessarily suggestive, David would
argue that the photograph publishedin the paper influenced Wanda to
identify David, even though he didnot match her initial description.
This is because Wanda would be morelikely to recognize David in the lineup

(05:42):
based on the picture, rather than hermemory of the night of the robbery.
David would also point to Officer Oliver'sstatement that David had Vic's wallet
on him at the time of the robbery.
Hearing this statement would makeWanda more likely to identify David in
the lineup after recognizing him fromthe photo in the newspaper, because

(06:06):
David's possession of Vic's walletsuggests that David stole it from
Vic, and therefore was also one ofthe people who committed the robbery.
Also, the lineup wasn't uniform here.
The police included several men that weresignificantly shorter than David, even
though they all had long hair and a beard.

(06:29):
The difference in heights could easilyhelp Wanda eliminate some of the men
from consideration, again making it morelikely that she would identify David.
To establish that this unnecessarilysuggestive lineup created a substantial
likelihood that Wanda would identify theincorrect person, David could point to

(06:51):
the fact that Wanda's initial descriptionof the suspect - tall, short hair, and
clean shaven - was not consistent withthe person she identified in the lineup.
David would also want to emphasizethat she viewed the lineup for
20 minutes, which suggests shewasn't certain of her suggestion.

(07:13):
David should also emphasize that onthe night of the robbery, Wanda viewed
the men from the street in the darkfor a very short time as they fled
from the house, and she couldn't givea detailed description of both men.
These factors suggest her initialobservation wasn't reliable, and given

(07:34):
that, despite her concern that thepolice had the wrong person, she ended
up identifying someone who matched thephoto in the newspaper, the totality
of the circumstances indicates thatthere was a substantial likelihood that
she would misidentify the perpetrator.

(07:55):
The prosecution doesn't havevery strong arguments here.
They could argue that the lineup wasnot unnecessarily suggestive because
the six men had beards and long hair, sothey had similar characteristics, even
if they weren't all the same height.
And they could try to claim that Wanda'sidentification was reliable because she

(08:18):
was able to take her time - 20 minutes,in fact - to really consider whether
the person she saw was in the lineup.
However, the court would likely findthat the combination of the newspaper's
influence, Officer Oliver's comments,and the differing heights of the men
in the lineup created an unnecessarilysuggestive identification procedure.

(08:43):
And all the factors that Davidhighlighted around the circumstances
surrounding Wanda's initial observation,her description, and then her
identification, support the conclusionthat the unnecessarily suggestive lineup
resulted in a substantial likelihoodof irreparable misidentification.
So, here David would probablybe successful in having the

(09:06):
lineup identification suppressed.
So, let's take a moment tocontrast our two hypotheticals.
In the first case, with Dawn andWes, the showup was found not to
be unnecessarily suggestive, eventhough it occurred in a courthouse.
This is all part of Part 1.
The spontaneous nature of theidentification and the witness's

(09:29):
confidence were key factors.
In the second case, with David and Wanda,the lineup was deemed unnecessarily
suggestive, largely because ofOfficer Oliver's comments and the
disparate heights of the participants,combined with the fact that Wanda had
expressed doubt about David's identity.
These hypos also highlight thecritical importance of when a

(09:52):
witness's first impression is formed.
In Wanda's case, her initial descriptionimmediately after the crime - tall,
clean shaven, short hair - differedsignificantly from David's appearance
- tall, bearded, long hair - in boththe newspaper photo and lineup.
This inconsistency seriouslyundermines the reliability

(10:14):
of her later identification.
In contrast, Wes immediately recognizedJohn, suggesting his identification
was based on his observationsduring the crime, rather than
influenced by the courthouse setting.
Now let's think about someadditional identification scenarios
you might encounter on an exam:

1. Post-charge voice identification: If after formal charges, police (10:33):
undefined
have a witness listen to recordingsof several voices, including the
defendant's, without the defendantbeing physically present, there's no
Sixth Amendment right to counsel issue.
But if the recordings all sounddifferent, or officers suggest which
voice belongs to the defendant,there could be due process concerns.

(10:59):
2. In-court identifications followingsuppressed out-of-court identifications:
Remember that if an out-of-courtidentification is suppressed, a
subsequent in-court identificationis only admissible if the prosecution
can establish an independent source.
For example, if a witness had aclear, unobstructed view of the

(11:20):
suspect for several minutes during thecrime, in broad daylight, this might
constitute an independent source.
3. Photo arrays showing multiple photosof the same suspect: If police show
a witness a photo array where thedefendant appears multiple times but
other individuals only appear once,this could be unnecessarily suggestive

(11:45):
because it gives the witness multipleopportunities to select the defendant.
So, let's review what we've learnedacross both parts of our discussion
on criminal identification procedures:
1. There are various types ofidentification procedures - lineups,
showups, photo arrays, fingerprinting,DNA testing, and voice identifications.

(12:10):
2. The Sixth Amendment right to counselattaches once formal adversarial
judicial proceedings have begun.
This determines whether a defendanthas the right to have counsel present
during identification procedures.
3. For lineups and showups thatoccur after charging, the defendant

(12:31):
has a right to counsel's presence.
For pre-charge lineups andshowups, there is no such right.
4. Even after charging, there is noright to counsel for photo arrays,
fingerprinting, or blood testing, unlessthe defendant is physically present.
5. The due process clause of theFourteenth Amendment protects

(12:53):
against unnecessarily suggestiveidentification procedures that
create a substantial likelihoodof irreparable misidentification.
6. Courts examine the totality ofthe circumstances when determining
whether an identificationprocedure violates due process.

(13:13):
7. If an out-of-court identificationis inadmissible, an in-court
identification is also barred, unlessthe prosecution can establish an
independent source for the identification.
Remember that when analyzingidentification procedure questions on
an exam, you should systematically workthrough both the Sixth Amendment right

(13:35):
to counsel issues and the FourteenthAmendment due process concerns.
The timing of the identificationand the specific procedure used are
critical factors in your analysis.
Let's walk through a step-by-step approachto tackling these questions on an exam: 1.

Identify the procedure (13:56):
Is it a lineup, showup, photo array, fingerprinting,
DNA test, or voice identification?

2. Determine the timing (14:05):
Did the identification occur before or after
formal adversarial proceedings began?
This tells you whether the SixthAmendment right to counsel has attached.

3. Analyze the right to counsel issue: If formal proceedings had begun and (14:17):
undefined
it was a lineup or a showup with thedefendant present, was counsel present?
If not, the identification likelyviolates the Sixth Amendment.

4. Examine the due process issue (14:32):
Was the procedure unnecessarily suggestive?
If yes, did this create a substantiallikelihood of misidentification based
on the totality of the circumstances?

5. Consider the remedy (14:46):
If there was a constitutional violation, the out-of-court
identifications should be suppressed.
For in-court identifications, determineif there's an independent source.

6. Evaluate any policy arguments: Consider the reliability of eyewitness (15:00):
undefined
testimony generally, and the importanceof protecting against wrongful
convictions based on misidentification.
This methodical approach will help youidentify all the relevant issues and
avoid missing critical analysis points.

One final note (15:19):
It's important to remember that eyewitness
identifications, while compellingto juries, are often unreliable.
Factors like stress, weaponfocus - where witnesses focus on a
weapon rather than the perpetrator'sface, cross-racial identification
challenges, and memory contaminationthrough suggestive procedures can

(15:40):
all lead to mistaken identifications.
These constitutional protections existprecisely because of the risk of wrongful
convictions based on these errors.
When writing your exam answers,demonstrating an awareness of
these underlying policy concernscan strengthen your analysis.

(16:00):
Our podcast is supportedby SpacedRepetition.com.
Study way less, remember way more.
SpacedRepetition.com uses provenscience to help you with law
school and bar prep alike.
Code TOOLBOX at checkoutgets you 15% off any product.
If you enjoyed this episode of theBar Exam Toolbox podcast, please
take a second to leave a review andrating on your favorite listening app.

(16:23):
We'd really appreciate it.
And be sure to subscribeso you don't miss anything.
If you have any questions or comments,please don't hesitate to reach out to
myself or Alison at lee@barexamtoolbox.comor alison@barexamtoolbox.com.
Or you can always contactus via our website contact
form at BarExamToolbox.com.

(16:44):
Thanks for listening, and we'll talk soon!

All Episodes

Episode Transcript

Popular Podcasts

On Purpose with Jay Shetty

NFL Daily with Gregg Rosenthal

The Joe Rogan Experience

.css-15opob5{left:0;position:absolute;top:0.8rem;} All Episodes

.css-14f5ked{margin:0;word-break:break-word;display:-webkit-box;-webkit-box-orient:vertical;box-orient:vertical;-webkit-line-clamp:2;overflow:hidden;}322: Listen and Learn -- Criminal Procedure: Identifications (Part 2)