DEMISE OF PROCEDURAL PROTECTIONS IN LAYWITNESS IDENTIFICATIONS IN FEDERAL COURT - WHO IS THE CULPRIT?

• NCJ Number: 47906
• Journal: Loyola University of Chicago Law Journal Volume: 9 Issue: 2 Dated: (WINTER 1978) Pages: 335-367
• Author(s): J F DECKER; R J MORIARTY; E ALBERT
• Date Published: 1978
• Length: 33 pages
• Corporate Author: Loyola University of Chicago
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

THE RIGHT TO COUNSEL DURING IDENTIFICATION PROCEDURES, GUARANTEED BY THREE U.S. SUPREME COURT CASES, HAS BEEN SERIOUSLY WEAKENED BY USE OF SUBSTITUTE COUNSEL. DUE PROCESS REQUIREMENTS FOR IDENTIFICATIONS ARE LISTED.

Abstract

IN A SERIES OF DECISIONS IN 1967 THE SUPREME COURT DECIDED THAT THE METHODS USED DURING SUSPECT IDENTIFICATION WERE SO SUGGESTIVE THAT SUBSEQUENTLY A FAIR TRIAL WAS IMPOSSIBLE. THESE CASES ESTABLISHED THE DEFENDANT'S RIGHT TO COUNSEL DURING THE IDENTIFICATION PROCESS AND PLACED LIMITS ON THE IDENTIFICATION METHODS. THE METHOD MOST FAVORED BY THE COURTS IS THE 'LINEUP' IN WHICH A NUMBER OF PERSONS WITH SIMILAR CHARACTERISTICS ARE SHOWN TO THE WITNESS, WHO IS ASKED TO PICK OUT THE SUSPECT. IT WAS HELD THAT THE WITNESS DOES NOT NEED TO BE SEEN, BUT MAY OPERATE BEHIND ONE-WAY GLASS OR OBSERVE THE PERSONS IN AN INFORMAL SITUATION. AS A RESULT OF THESE DECISIONS, POLICE IDENTIFICATIONS ARE NOW HELD AS SOON AS POSSIBLE, AND MANY UNDER SUSPICION ARE FREED MUCH SOONER. HOWEVER, THE EXTENSIVE USE OF WAIVERS OF COUNSEL OR SUBSTITUTE COUNSEL IS THREATENING THE GUARANTEE OF COUNSEL DURING IDENTIFICATION PROCEDURES. MORE ATTENTION IS BEING PAID TO DUE PROCESS IN IDENTIFICATION PROCEDURES, HOWEVER. CITIZENS HAVE A RIGHT TO REFUSE TO PARTICIPATE IN A POLICE LINEUP. IN PHILADELPHIA AN INJUNCTION ON BEHALF OF ALL CITIZENS PREVENTS THE PHILADELPHIA POLICE DEPARTMENT FROM CONDUCTING LINEUPS WITH CITIZEN 'FILL-INS' UNLESS THE CITIZENS COMPLETE A WRITTEN FORM CERTIFYING THAT THEY ARE AWARE THAT THERE ARE NO CHARGES AGAINST THEM AND THAT THEY ARE LEGALLY FREE TO LEAVE AT ANY TIME. ALTHOUGH SUGGESTIVE PROCEDURES HAVE BEEN BANNED, COURTS HAVE BEEN VERY LENIENT ON WITNESS ERROR WHEN NO SUGGESTIVE ACTION HAS BEEN TAKEN BY THE POLICE. PROBLEMS FOR THE DEFENSE ARE COMPOUNDED BECAUSE TESTIMONY ON THE DIFFICULTIES OF GOOD WITNESS IDENTIFICATION IS GENERALLY NOT ADMITTED AS EVIDENCE. MISIDENTIFICATION IS OFTEN HELD TO BE A HARMLESS ERROR, BUT IT IS NOT HARMLESS WHEN THE CONSTITUTIONAL RIGHTS OF THE ACCUSED ARE INVOLVED. REFERENCES ARE CITED. (GLR)