Chapter Ten – Lineups and Other Means of Pretrial Identification

Rolando V. del Carmen

Lineups and Other Means of Pretrial Identification

Lineups– The Right to Counsel during Lineups

• No right to counsel prior to a formal charge– Kirby v. Illinois (1972)

• Right to Counsel Applies After Formal Charge

• United States v. Wade (1967)

• Gilbert v. California (1967)

• The Wade-Gilbert Rule

• The Relationship between the right to counsel and Miranda

Lineups and Other Means of Pretrial Identification

Lineups– The Right to Counsel during Lineups

• The role of the lawyer during the lineup– United State v. Ash (1973)

• When the lawyer fails to appear

Lineups and Other Means of Pretrial Identification

Lineups– The Right to Due Process Applies

• Neil v. Biggers (1972)

• Foster v. California (1969)

– No Right against Unreasonable Searches and Seizures • Schmerber v. California (1966)

– No Right against Self-Incrimination• Does not extend to physical self-incrimination

Lineups and Other Means of Pretrial Identification

Showups– Right to Counsel

• No Right to Counsel Prior to the Filing of a Formal Charge

• Right to Counsel Applies After Formal Charge

– Moore v. Illinois (1977)

– Right to Due Process Applies• Stovall v. Denno (1967)

– No Right against Self-Incrimination

Lineups and Other Means of Pretrial Identification

Photographic Identifications– No Right to Counsel– Right to Due Process Applies

• Simmons v. United States (1968)• Manson v. Brathwaite (1977)

– No Right against Unreasonable Searches and Seizures

– No Right against Self-Incrimination

Lineups and Other Means of Pretrial IdentificationTable 10.1 Summary of Eyewitness Identification and Suspects’ Constitutional Rights

Right to Counsel?

Right to Due Process?

Right against Unreasonable Search and Seizure

Right against Self-Incrimination

Lineups Yes: if formal chargeNo, if noformal charge

Yes No No

Showups Yes No No

Photographic Identification

No Yes No No

Lineups and Other Means of Pretrial Identification

Problems with Eyewitness Identification– “Hopelessly Unreliable”– No Prescribed Guidelines

Lineups and Other Means of Pretrial Identification

Eyewitness Identification Guidelines from the U.S. Department of Justice– For Lineups

• Composing

• Presenting

– For Showups– For Photographic Identifications

Lineups and Other Means of Pretrial Identification

Other Means of Identifying Suspects– DNA Testing: Results Admissible into

Evidence• Background

– United States v. Jakobetz (1992)

• Results and Some Legal Issues• Unassailable Scientific Reliability• Toward a National DNA Database • The Future of DNA Testing

Lineups and Other Means of Pretrial Identification

Other Means of Identifying Suspects– Polygraph Examinations: Results Not

Admissible in Court• Frye v. United States (D.C. Cir. 1923)• Daubert v. Merrell Dow Pharmaceuticals,

Inc. (1993)• United States v. Scheffer (1998)

Lineups and Other Means of Pretrial Identification

Other Means of Identifying Suspects– Breathalyzer Tests: Results

Admissible – Handwriting Samples: Results

Admissible • United States v. Mara (1973)

– Hair Samples: Results Admissible– Brain Fingerprinting: Too Early to Tell