NCJ Number
14154
Journal
Michigan Law Review Volume: 72 Issue: 4 Dated: (MARCH 1974) Pages: 717-798
Date Published
1974
Length
82 pages
Annotation
THEORETICAL AND EMPIRICAL ANALYSIS OF THE ISSUES INVOLVED IN 3 SUPREME COURT CASES LIMITING THE RIGHT TO COUNSEL TO POST-ARRAIGNMENT IDENTIFICATIONS AND THEREBY INCREASING THE POSSIBILITY OF MISTAKEN IDENTIFICATIONS BY WITNESSES.
Abstract
KIRBY HELD THAT NO COUNSEL NEED BE PRESENT AT A ONE-MAN STATIONHOUSE SHOWUP CONDUCTED BEFORE FORMAL CHARGES WERE FILED. KIRBY LEFT OPEN THE POSSIBILITY OF A DUE PROCESS CHALLENGE TO ONE-MAN SHOWUPS AT THE POLICE STATION. IN NEIL V. BIGGERS, HOWEVER, THE COURT REJECTED SUCH A CHALLENGE EVEN THOUGH THE POLICE HAD NOT MADE A REASONABLE EFFORT TO CONDUCT A LINEUP. THE COURT REFUSED TO ADOPT A PER SE RULE INVALIDATING UNNECESSARILY SUGGESTIVE PROCEDURES. INSTEAD, IT RETAINED THE APPROACH OF EXAMINING THE FACTS FOR A SUBSTANTIAL LIKELIHOOD OF MISIDENTIFICATION. CONSIDERING ALL THE FACTS, INCLUDING THE VICTIM'S OPPORTUNITY TO OBSERVE THE DEFENDANT, THE COURT FOUND NO SUCH DANGER IN THE CHALLENGED SHOWUP. MOST RECENTLY, IN UNITED STATES V. ASH, THE COURT AGAIN REFUSED TO EXTEND WADE, THIS TIME TO PHOTOGRAPHIC DISPLAYS. CURIOUSLY, THE COURT SEEMED TO RECOGNIZE THAT PHOTOGRAPHIC IDENTIFICATIONS OFTEN LACK SCIENTIFIC PRECISION AND ARE DIFFICULT TO RECONSTRUCT AT TRIAL, THE VERY EVILS THAT PROMPTED WADE TO REQUIRE COUNSEL AT POSTINDICTMENT LINEUPS. NEVERTHELESS, THE COURT HELD THAT THE SIXTH AMENDMENT RIGHT TO COUNSEL DID NOT EXTEND TO PROCEDURES CONDUCTED IN THE DEFENDANT'S ABSENCE. EMPIRICAL RESEARCH AND REPORTED INSTANCES OF WRONGFUL CONVICTION INDICATE A NEED FOR GREATER SENSITIVITY TO THE RISK OF UNRELIABILITY INHERENT IN EYEWITNESS IDENTIFICATIONS THAN IS REFLECTED IN KIRBY, BIGGERS, AND ASH. FROM A LEGAL PERSPECTIVE, KIRBY AND ASH ARE NEITHER WELL REASONED NOR CONSISTENT WITH PRECEDENT. NEVERTHELESS, WHILE ASH SHOULD BE RECONSIDERED, KIRBY'S SIXTH AMENDMENT LIMITATION CAN BE JUSTIFIED BY POLICY REASONS, INCLUDING, PRIMARILY, THE NEED TO PRESERVE CONSTITUTIONAL FLEXIBILITY IN THE PRECHARGE STAGES OF THE CRIMINAL PROCESS. SINCE KIRBY LIMITED ITS DISCUSSION TO SIXTH AMENDMENT ANALYSIS, IT DOES NOT PRECLUDE CONSIDERATION OF ALTERNATE BASES FOR THE RIGHT TO COUNSEL AT PRETRIAL IDENTIFICATION PROCEDURES. IN PARTICULAR, DUE PROCESS SHOULD REQUIRE COUNSEL'S ASSISTANCE AT POSTCUSTODY STATION-HOUSE LINEUPS AND POSTCUSTODY PHOTOGRAPHIC DISPLAYS. UNLIKE THE SIXTH AMENDMENT, DUE PROCESS PERMITS A BALANCING OF INTERESTS THAT WOULD ENABLE THE STATUS QUO TO BE MAINTAINED WITH RESPECT TO PROMPT ON-THE-SCENE IDENTIFICATIONS. DUE PROCESS IS ALSO SUFFICIENTLY FLEXIBLE TO PERMIT, IN CERTAIN RARE CASES, POSTCUSTODY PHOTOGRAPHIC DISPLAYS IN THE ABSENCE OF COUNSEL. (AUTHOR ABSTRACT)