1. Discuss the three stages of eyewitness identification, and explain what can threaten the accuracy of eyewitness identification at each stage.
    
2. Explain the Wade-Gilbert rule.
    
3. Describe the difference between the right to counsel at pre-indictment lineups and the right to counsel at post-indictment lineups.
    
4. Discuss whether or not individuals have the right to counsel for photographic displays.
    
5. Describe the due process test for identifications.
    
6. Explain the significance of police involvement in suggestive identifications.

SUMMARY: Identifications by eyewitnesses and victims are one of the primary investigative tools in the arsenal of law enforcement. A positive identification narrows an investigation and may lead to a formal criminal charge and to criminal prosecution. In other instances, law enforcement authorities may conduct identifications of individuals against whom criminal charges already have been filed in order to build or to strengthen their case. Following these pretrial identifications, the victims or eyewitnesses typically are asked to repeat their identifications at trial. Prosecutors have learned that jurors view these courtroom identifications as powerful and persuasive evidence of a defendant’s guilt.

There are three primary forms of eyewitness identification: lineup, showup, and photographic identification. These typically are used in combination with one another and with scientific identifications.

Two constitutional provisions regulate eyewitness identifications. The Sixth Amendment guarantees the right to an attorney at lineups and showups following the initiation of proceedings against a defendant. Pre-indictment identifications and photographic identifications are regulated by the Fifth and Fourteenth Amendments’ Due Process Clauses. Post-indictment lineups also are subject to challenge on due process grounds.

Identifications are inherently subject to error and are the leading cause of false convictions. The question remains whether we can safeguard these procedures against the errors that inevitably occur in the process of perception, memory, and identification. Double-blind, sequential lineup procedures and other steps have been proposed to augment the constitutional protections surrounding identifications.

The Sixth Amendment right to counsel applies to all critical stages of the criminal process. Critical stages are those procedures following a formal charge at which representation by a lawyer is essential to a fair trial. The U.S. Supreme Court recognized in Wade and Gilbert that a lineup or showup is a critical stage because individuals who are unrepresented are at risk of being falsely identified. A defense attorney who observes a suggestive lineup is in a position to cross-examine the police who conducted the lineup or showup in order to call the identification into question in the minds of the jury.

The failure to permit a defendant to have access to a lawyer or to waive his or her right to a lawyer results in the exclusion from trial of the results of the identification. The prosecutor nevertheless may ask a witness for an in-court identification in those instances in which the prosecution is able to establish by clear and convincing evidence that the in-court identification is not the product of the tainted identification procedure.

In Kirby v. Illinois, the U.S. Supreme Court concluded that a showup after arrest but before “the initiation of any adversary criminal proceedings (whether by way of formal charge, preliminary hearing, indictment, information, or arraignment) is not a critical stage of criminal prosecution at which the accused is entitled to counsel.”

In 1973, in United States v. Ash, the U.S. Supreme Court held that the Sixth Amendment does not entitle the accused to the presence of a lawyer at a post-indictment photographic display. The Court reasoned that post-indictment confrontations are considered critical only when the presence of a lawyer is essential to the protection of the defendant’s ability to receive a fair trial. Photo arrays are easily re-created, and for this reason, there is no right for either the lawyer or the defendant to observe the identification.

In Stovall v. Denno, the U.S. Supreme Court held that all identification procedures, showups, and photo arrays are required to satisfy the standards of the Fifth and Fourteenth Amendments’ Due Process Clauses. The due process test was fully elaborated in Manson v. Brathwaite. Identifications violate the Due Process Clause when they are unnecessarily suggestive and “conducive to irreparable mistaken identification.” This is to be evaluated based on the totality of the circumstances.

In Perry v. New Hampshire, the most recent Supreme Court case on eyewitness identifications, the Court held that, absent unnecessarily suggestive identification procedures created by the police, due process does not require a trial court to “screen such evidence for reliability” before allowing the jury to assess its reliability.