Identification and Right to Counsel

Created by Melanie_V 

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U.S. v. Wade (1967)

An accused and his counsel must be notified of an impending lineup, and counsel's presence is a requi-site to conduct of the lineup, absent an intelligent waiver. Otherwise no reference to such identification may be made at trial, and a courtroom identification is not admissible without clear and convincing proof that the testimony is not the fruit of the earlier iden-tification or admission's being harmless. Bank rob-bery witnesses saw Wade in custody before lineup.

Kirby v. Illinois (1972)

No per se exclusionary rule applies to testimony concerning an identification that took place before the commencement of prosecution, such as that of an arrested suspect in a police station.

U.S. v. Ash (1973)

6th Amendment does not grant right to counsel at non-corporeal identifications, as defendant is not present to require assistance.

Corporeal v. non-corporeal identification:

The Court doesn't extend the Sixth Amendment protection of a corporeal identification to a non-corporeal identification because it might extend to all questioning of witnesses, although the defense has the same opportunity to question, and because an attorney isn't needed to assist a person who isn't there.

Showup

Suspect is brought to victim or vice versa, often on street, where only one suspect is present. Less formal than lineup. If this violated the Sixth Amendment right to counsel, in-court identification would be ad-missible only if independent of showup identification (fruit of the poisonous tree). Only result of first identification matters—not first identification itself.

Admonitions required before identification procedure:

Take all the time you need.
Person might not be there.

2 requirements to trigger 6th Amendment right to counsel in identification procedure:

1. Adversarial proceedings must have been initiated 2. Corporeal lineup

Problems with eyewitness identification:

Risk of suggestiveness (1-person show-ups, failure
to segregate witnesses, failure to admonish that
perp might not be there)
Lack of neutral witness to procedure
Reluctance to recant

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