/pree-TRI-ul eye-den-tuh-fuh-KAY-shun/·procedural term
Also known as:pretrial identifications · pre-trial identification · pre-trial identifications · pre-trial ID
Written by attorneys · grounded in primary & secondary sources — see below
An identification procedure conducted before trial in which a witness views a suspect or photographs to determine whether the suspect committed the crime. The procedure triggers Sixth Amendment protections when conducted after formal charges and due process scrutiny whenever it is unnecessarily suggestive.
Sources & Authorities
How it applies
Common Examples
6
Reliability Factors Permit In-Court ID
Priscilla Parks saw the intruder’s face clearly for a full minute under monitor light during a server-room break-in and gave an accurate description immediately. Five weeks later police showed her a single photo of the suspect and she identified him. At trial the court admits her in-court identification because her opportunity to view, degree of attention, accurate description, certainty, and short time lapse establish an independent source that purges any taint from the suggestive display.
Post-Charge Lineup Requires Counsel
Pierre Poulin was formally charged with theft and counsel was appointed the same morning. That afternoon officers placed him in a live lineup without his lawyer present and the site manager identified him. The lineup identification is suppressed because the post-charge corporeal lineup was a critical stage at which the right to counsel attached.
Select any source to read its text and confirm it supports the definition.
Cases
Casebooks
Course Outlines
Kirby v. Illinois406 U.S. 682 (1972)
Photo Array Needs No Counsel
Parker Phillips was charged with robbery. Detectives later showed a photographic array to the bank teller without notifying counsel. The court denies the motion to suppress the out-of-court identification because photographic procedures are not critical stages requiring the presence of counsel.
United States v. Ash413 U.S. 300 (1973)
Lineup Without Counsel Violates Sixth Amendment
Penelope Price was indicted for assault. Police then conducted a live lineup at which the victim identified her even though her appointed lawyer was not present. The lineup identification must be suppressed because the post-indictment lineup was a critical stage requiring counsel.
United States v. Wade388 U.S. 218 (1967)
Independent Source Allows In-Court ID
Phuong Pham observed the robber at close range for nearly a minute during a well-lit bank robbery and gave an accurate description immediately. After an unconstitutional show-up she identifies the defendant in court. The in-court identification is admitted because the strong opportunity to view, high attention, accurate description, certainty, and brief time lapse supply an independent source.
Nix v. Williams (Williams II)467 U.S. 431 (1984)
Pretrial Photo Display Raises No Counsel Claim
Perry Pratt was charged with theft. Officers later displayed booking photos to a witness without counsel present. The court rejects the Sixth Amendment challenge because photographic identification procedures are not critical stages at which the right to counsel attaches.
United States v. Feola420 U.S. 671 (1974)
Common questions
Frequently Asked
4
When does the right to counsel attach to a pretrial identification procedure?+
The right attaches only after formal charges are filed and only for corporeal lineups and show-ups that constitute critical stages. Photographic arrays never trigger the right because the accused is absent and the images can be examined at trial.
Supporting sources
What test determines whether an in-court identification is admissible after an unconstitutional pretrial procedure?+
The court applies a totality-of-the-circumstances reliability inquiry. It weighs the witness’s opportunity to view the perpetrator, degree of attention, accuracy of any prior description, level of certainty at the confrontation, and the time between the crime and the confrontation.
Supporting sources
Does an unnecessarily suggestive show-up automatically bar a later in-court identification?+
No. The suggestiveness does not trigger automatic exclusion. The prosecution may still introduce the in-court identification if it proves the identification rests on an independent source that purges the taint.
Supporting sources
What remedy follows when counsel is denied at a post-charge lineup?+
The lineup identification itself is suppressed. Any subsequent in-court identification remains admissible only if the prosecution shows it has an independent source untainted by the uncounseled lineup.
Supporting sources
388 U.S. 218 (1967)Evidence
…heavy burden for the State and probably an impossible one. To all intents and purposes, courtroom identifications are barred if pretrial identifications have occurred without counsel being present. The rule applies to any lineup, to any other techniques employed to produce an identification and a fortiori to a face-to-face encounter…