Eyewitness identification: lineups, showups, voice and physical exemplars, and due process reliability

Black-letter propositions

1. 01

   Requiring an accused to appear in a lineup, speak for identification, or exhibit his person is not testimonial compulsion, so it does not violate the Fifth Amendment privilege against self-incrimination.

2. 02

   A post-indictment lineup is a critical stage of the prosecution at which the accused is entitled to the aid of counsel under the Sixth Amendment.

3. 03

   The Sixth Amendment right to counsel does not extend to a showup after arrest but before adversary judicial proceedings begin, although due process still applies to it.

4. 04

   A due process violation from an identification procedure depends on the totality of the circumstances, and a one-person showup is widely condemned but not automatically unconstitutional.

5. 05

   Due process concerns arise only when law enforcement uses an identification procedure that is both suggestive and unnecessary, and even then suppression is not automatic.

6. 06

   Reliability is the linchpin in deciding whether a suggestive identification is admissible, and the factors are the witness's opportunity to view the criminal at the time of the crime, the degree of attention, the accuracy of the prior description, the level of certainty at the confrontation, and the time between the crime and the confrontation.

7. 07

   An identification is excluded when the suggestive procedure creates a very substantial likelihood of irreparable misidentification, and the court weighs the corrupting effect of the suggestive procedure against the reliability factors.

8. 08

   The Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when police did not arrange unnecessarily suggestive circumstances.

9. 09

   The Constitution protects a defendant against evidence of questionable reliability mainly by letting the defendant persuade the jury to discount it, through cross-examination and instructions, and it bars admission only when the evidence is so unfair that its admission violates fundamental conceptions of justice.

10. 10

    If an identification is admitted despite a suggestive pretrial procedure, the defendant can still challenge its weight before the jury.

Use this attack sequence under time

Common wrong turns

• A showup before formal charges does not trigger the Sixth Amendment right to counsel, but the Due Process Clause still limits suggestive showups.
• A suggestive procedure does not automatically lead to exclusion, because reliability can save the identification.
• An identification not arranged by police, such as a chance sighting, does not raise the same due process inquiry.
• Requiring a suspect to speak the words used by the robber is not compelled testimony.

Worked example

Police, after an indictment, hold a lineup in which the suspect is the only one who resembles the victim's description, and no lawyer is present. Weeks earlier, the victim saw the robber for several minutes in good light and gave an accurate description.

Practice this topic

Lineups and counsel

United States v. Wade held that requiring an accused to appear in a lineup and speak for identification did not violate his Fifth Amendment privilege, because exhibiting his person for observation and using his voice as an identifying physical characteristic involved no compulsion of a testimonial nature, and that a post-indictment lineup is a critical stage at which the accused is entitled to the aid of counsel under the Sixth Amendment.

Kirby v. Illinois, in a plurality opinion, concluded that a showup after arrest but before the start of any adversary criminal proceeding is not a stage at which the accused is entitled to counsel.

Due process and suggestive procedures

Stovall v. Denno held that the Wade rule applied only to lineups conducted after that decision, and that although the practice of showing suspects singly for identification has been widely condemned, whether a due process violation occurred depends on the totality of the circumstances, so there was no violation where the only person who could exonerate the suspect was gravely ill and could not attend a lineup.

Neil v. Biggers held that although a station-house identification may have been suggestive, under the totality of the circumstances the victim's identification was reliable and properly went to the jury. Manson v. Brathwaite held that reliability is the linchpin in deciding admissibility and listed the factors as the opportunity to view the criminal at the time of the crime, the degree of attention, the accuracy of the prior description, the level of certainty at the confrontation, and the time between the crime and the confrontation, and that exclusion is required only where there is a very substantial likelihood of irreparable misidentification.

Identifications not arranged by police

Perry v. New Hampshire held that the Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement, and that due process concerns arise only when officers use an identification procedure that is both suggestive and unnecessary.

The Court explained that the Constitution protects a defendant against a conviction based on evidence of questionable reliability, not by prohibiting introduction of the evidence, but by affording the defendant means to persuade the jury that the evidence should be discounted as unworthy of credit.

Frequently asked questions