Also known as: pretrial identification procedures · pre trial identification procedures · pretrial ID procedures · pretrial identifications · identification procedures
Written by attorneys · grounded in primary & secondary sources — see below
A set of investigative techniques by which law enforcement obtains an identification of a suspect from an eyewitness before trial, including lineups, showups, and photographic arrays.
Philip Powell was arraigned on assault charges. Officers then assembled a lineup at the station and had the victim view it without notifying Powell's attorney. The victim identified Powell. The court suppressed the identification because the post-arraignment procedure occurred at a critical stage requiring counsel.
Perry Pratt was indicted for robbery. Detectives gathered witnesses to view Pratt among other individuals at a warehouse the next day. No counsel received notice. The resulting identifications were excluded because the procedure took place after formal charging.
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Priya Prasad remained under investigation for fraud. Agents showed a witness several photographs including Prasad's image. No charges had been filed. The identification stood because the right to counsel had not yet attached during the investigative stage.
Parker Phillips faced no formal charges when investigators displayed a set of photographs to a victim. The victim selected Phillips. The court admitted the evidence because photographic procedures do not constitute a critical stage requiring counsel.
Pavel Petrov was placed in a lineup before any indictment or information was filed. A witness identified him. The identification was not suppressed because adversarial proceedings had not begun and the right to counsel had not attached.
Pierce Patterson was shown alone in one photograph to a witness two days after a theft. The witness identified him. The court evaluated reliability under the totality of circumstances and admitted the evidence despite the suggestiveness.
The right attaches once formal adversarial proceedings begin by indictment, information, or arraignment. A post-charge corporeal identification procedure is then a critical stage at which counsel must be present. Pre-charge procedures do not trigger the guarantee.
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No. Photographic arrays and spreads are not critical stages. The Sixth Amendment therefore does not require counsel even after charges are filed.
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The resulting identification is suppressed. The absence of counsel at this critical stage violates the Sixth Amendment regardless of whether the procedure appears suggestive or exigent circumstances exist.
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A waiver must be knowing, intelligent, and voluntary under the totality of circumstances. Police encouragement to proceed without waiting for counsel, combined with the absence of a specific written waiver, typically renders the waiver invalid.
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An unnecessarily suggestive procedure violates due process if it creates a substantial likelihood of misidentification. Courts assess reliability under the totality of circumstances even when suggestiveness is present.
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…not extend this system, at least as it presently operates, to police investigations and would not require counsel's presence at pretrial identification procedures. Counsel's interest is in not having his client placed at the scene of the crime, regardless of his whereabouts. Some counsel may advise their clients to refuse to make any movements or to…