Criminal Evidence Chapter 10

What are the five factors set forth in the Biggers case to determine whether a suggestive pretrial identification procedure creates such a likelihood of misidentification as to violate due process?

The five Biggers factors for determining whether a suggestive pretrial identification procedure creates such a likelihood of misidentification as to violate due process are 1. The witness's opportunity to view the criminal at the time of the crime. 2. The witness's degree of attention. 3. The accuracy of the witness's prior description of the criminal. 4. The level of certainty demonstrated by the witness at the confrontation; and 5. The length of time between the crime and the confrontation.

Critical Stage

The initiation of an adversarial judicial proceeding, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.

Show-up

The one-on-one presentation of a suspect to a victim or witness for identification purposes.

Lineup

The presentation to a victim or witness of a line of persons who all look similar to see if one can be identified as the perpetrator of the crime.

Photographic Array

The presentation to a witness of a number of photographs for the identification of the perpetrator of the crime.

What is the purpose of the Biggers Five-Factors Analysis?

The purpose of the Biggers five-factors analysis is to determine whether a witness's in-court identification is independent of a suggestive pretrial identification procedure - i.e., whether the in-court identification is reliable.

What is the test fro excluding evidence of a pretrial identification on grounds of suggestiveness?

The test for excluding evidence of a pretrial identification on grounds of suggestiveness is whether, under the totality of the circumstances, the identification procedure was unnecessarily suggestive.

Totality of the Circumstances

The test for suggestiveness that, in contrast to the per se rule, takes into account all surrounding circumstances to determine whether the exclusionary rule applies.

What are the three basic types of identification procedures?

The three basic types of identification procedures are: Lineup, show-up, and photographic array.

Emergency or exigent circumstances

Those circumstances that will justify a suggestive presentation of a suspect to a suspect to a witness, such as when the witness is in danger of dying.

Indica of reliability

Those facts indicating an identification is reliable - particularly, the five factors of the Biggers Case.

What is the test for allowing an in-court identification by a witness whose pretrial identification was tainted by an unnecessarily suggestive pretrial identification procedure?

When a pretrial identification procedure has been deemed unnecessarily suggestive, the witness's in-court identification may be allowed if the prosecution can show by clear and convincing evidence that the witness's identification is independent of the tainted pretrial identification procedure.

When is an accused not entitled to counsel in connection with an identification procedure?

A defendant who has not been formally charged with a criminal offense is not entitled to counsel at an identification proceeding.

What is the law applicable to identifications when there is a claim that a pretrial identification procedure was suggestive?

A summary of the law applicable to identifications is as follows: when a defendant raises a question about he suggestiveness of a pretrial identification procedure, the trial court must first determine if the identification procedure was unnecessary and suggestive. If it was not, the court should admit the pretrial and in-court identifications by the witness. However, it the trial court finds the procedure to be unnecessary and suggestive, the court must then determine whether, under the totality of the circumstances, the suggestiveness of the procedure would give rise to a very substantial likelihood of irreparable misidentification or whether the identification possessed features of reliability. The reliability features utilized are the five enumerated in the biggers case.

When is an accused entitled to counsel at an identification procedure?

An accused in entitled to counsel at a post-indictment lineup that is conducted for identification purposes - a critical stage of a criminal proceeding.

What are several situations that the law enforcement officer should avoid with respect to the makeup of a lineup or photographic array?

Some situations that the law enforcement officer should avoid with respect to the makeup of a lineup or photographic array include placing the accused with others of a different gender in the lineup or array, asking the accused to dress in a particular way, and presenting other in the lineup or array who are so dissimilar in appearance to the defendant that the defendant stands out.

What are the constitutional grounds for an accused's claim of misidentification before trial and at trial?

The constitutional grounds for an accused's claim of misidentification before and at trial are the Due Process Clauses of the Fifth and Fourteenth Amendments.