Difference between revisions of "Showups, Lineups, and Photo Arrays"
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The United States Constitution's Fifth Amendment privilege against self-incrimination does not extend to identification procedures that include blood <ref> Schmerber v. California, 384 U.S. 757 (1966)</ref> or handwriting <ref> Gilbert v. California, 388 U.S. 263 (1967)</ref>, fingerprints, x-rays, etc. However, if an identification is unusually invasive it may be inadmissible for other reasons. For instance, in Winston v. Lee, the U.S. Supreme Court held that forcing a defendant to undergo surgery which requires general anesthetic in order to obtain evidence violates the Fourth Amendment prohibition against unreasonable search and seizure when the evidence is not absolutely necessary to convict the defendant.<ref> Winston v. Lee, 470 U.S. 753 (1985)</ref> | The United States Constitution's Fifth Amendment privilege against self-incrimination does not extend to identification procedures that include blood <ref> Schmerber v. California, 384 U.S. 757 (1966)</ref> or handwriting <ref> Gilbert v. California, 388 U.S. 263 (1967)</ref>, fingerprints, x-rays, etc. However, if an identification is unusually invasive it may be inadmissible for other reasons. For instance, in Winston v. Lee, the U.S. Supreme Court held that forcing a defendant to undergo surgery which requires general anesthetic in order to obtain evidence violates the Fourth Amendment prohibition against unreasonable search and seizure when the evidence is not absolutely necessary to convict the defendant.<ref> Winston v. Lee, 470 U.S. 753 (1985)</ref> | ||
| − | A factfinder may draw adverse inferences from a defendant's refusal to participate in an identification procedure. <ref> South Dakota v. Neville, 459 U.S. 553 (1983) </ref>. Courts may use coercive methods such as imprisonment or contempt of court to force participation in identification procedures. | + | A factfinder may draw adverse inferences from a defendant's refusal to participate in an identification procedure. <ref> South Dakota v. Neville, 459 U.S. 553 (1983) </ref> or a defendants altered appearance after the crime. Courts may use coercive methods such as imprisonment or contempt of court to force participation in identification procedures. |
The criminal defense attorney should endeavor, whenever possible, to be physically present during any identification of their client. This is the only way to guarantee that the identification is fair and is not suggestive or coercive. As a practical matter this is not always possible. This is why some advocates argue that all identification procedures should be videotaped. | The criminal defense attorney should endeavor, whenever possible, to be physically present during any identification of their client. This is the only way to guarantee that the identification is fair and is not suggestive or coercive. As a practical matter this is not always possible. This is why some advocates argue that all identification procedures should be videotaped. | ||
| + | As a general rule identification procedures should not be "unnececssarily suggestive".<ref> Stovall v. Denno, 388 U.S. 293 (1967)</ref>. In determining what is "fair" or "unfair" in identification procedures (the due process question), the courts consider all the circumstances leading up to the identification. Unfairness will be found only when, in the light of all the circumstances, the identification procedure was so suggestive as to give rise to a real and substantial likelihood of irreparable misidentification. <Neil v. Biggers, 409 U.S. 188 (1972)</ref> | ||
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| + | ==Procedures for Challenging Identification Procedures== | ||
| + | In order to challenge an identification procedure in a common law system, the lawyer should request a hearing to suppress the identification as unnecessarily suggestive("Wade Hearing"). Defendant may have to testify as such a hearing to establish the facts surrounding the original identification. In the United States these statements cannot generally be used at the later trial unless the defendant opens the door on direct or cross-examination. | ||
==Showup== | ==Showup== | ||
