PastPaperHero | Constitutional protection of accused persons - Lineups and other forms of identification

Learning Outcomes

This article examines the constitutional safeguards governing pretrial identification procedures for the MBE, including:

identifying when the Sixth Amendment right to counsel attaches and when a lineup or showup is a “critical stage” requiring counsel;
distinguishing corporeal lineups, showups, and photographic arrays for both Sixth Amendment and Due Process analysis;
applying the Due Process test for unnecessarily suggestive procedures and using the Manson / Biggers reliability factors to assess admissibility;
differentiating Sixth Amendment, Due Process, and Fifth Amendment self‑incrimination issues in typical MBE fact patterns involving lineups, showups, and voice or handwriting exemplars;
evaluating when police‑arranged suggestiveness invalidates an identification and when reliability salvages it despite flaws in the procedure;
determining the proper remedies for unconstitutional identifications, including suppression of out‑of‑court identifications and the independent‑source doctrine for in‑court identifications;
recognizing how harmless‑error review operates when an identification has been admitted in violation of the Constitution;
spotting common exam traps, such as assuming a right to counsel at photo arrays or treating compelled appearance or speech in a lineup as testimonial.

MBE Syllabus

For the MBE, you are required to understand constitutional limitations on pretrial identification procedures, with a focus on the following syllabus points:

When the Sixth Amendment right to counsel attaches and what counts as a “critical stage.”
The difference between corporeal (in‑person) and non‑corporeal (photo) identification procedures for right‑to‑counsel purposes.
The Due Process test for suggestive identification procedures and the Manson v. Brathwaite reliability factors.
The concept of “unnecessarily suggestive” procedures and “substantial likelihood of misidentification.”
The remedy for violations: suppression of out‑of‑court identifications and the “independent source” rule for in‑court identifications.
How the Fifth Amendment privilege against self‑incrimination applies (and does not apply) to lineups and voice or handwriting exemplars.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

A suspect's Sixth Amendment right to counsel attaches to which of the following identification procedures?
1. Photographic array shown to a witness before formal charges are filed.
2. Corporeal lineup conducted after the suspect has been formally charged.
3. Showup conducted immediately after the crime and before arrest.
4. Taking of handwriting exemplars after indictment.
An out-of-court identification procedure violates Due Process if it is:
1. Conducted without the presence of counsel.
2. Inherently suggestive, regardless of necessity.
3. Unnecessarily suggestive and creates a substantial likelihood of irreparable misidentification.
4. Conducted after the suspect has invoked their right to remain silent.
If an out-of-court lineup is found to be unconstitutional due to a denial of the right to counsel, an in-court identification by the same witness will be admissible if:
1. The witness confirms they are certain of the identification.
2. The prosecution can show by clear and convincing evidence that the in-court identification has an independent source.
3. The defendant takes the stand and denies involvement in the crime.
4. The lineup occurred before formal charges were filed.

Introduction

Pretrial identification procedures are a critical part of criminal investigations but also pose a risk of misidentification, potentially leading to wrongful convictions. The Constitution provides two main safeguards against unreliable identifications resulting from flawed police procedures:

The Sixth Amendment grants the accused the right to have counsel present during certain critical post‑charge identification procedures.
The Due Process Clauses of the Fifth (federal) and Fourteenth (state) Amendments protect against identification procedures that are unnecessarily suggestive and create a substantial likelihood of misidentification, regardless of when the procedure occurs or whether formal charges have been filed.

On the MBE, fact patterns involving lineups, showups, or photo arrays often test whether you can:

Identify which constitutional provision is implicated (Sixth Amendment, Due Process, or Fifth Amendment self‑incrimination).
Apply the correct standard.
Determine the proper remedy.

Before turning to those doctrines, it helps to be clear about the basic identification methods.

Key Term: Lineup
A police procedure in which a witness views a group of individuals, one of whom is the suspect, to determine whether the witness can identify the perpetrator.

Key Term: Showup
A one‑on‑one confrontation in which the police present a single suspect to a witness for identification, often near the scene and close in time to the crime.

Key Term: Photographic Array
A procedure in which the witness is shown photographs (or images) of several individuals at once, or sequentially, to see if the witness can pick out the suspect.

Key Term: Corporeal Identification
Any identification procedure in which the witness views the suspect in person (e.g., a lineup or showup), as opposed to viewing a photograph or video.

Sixth Amendment Right to Counsel

The Sixth Amendment provides that “In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” This right attaches once adversary judicial criminal proceedings have been initiated (e.g., formal charge, preliminary hearing, indictment, information, or arraignment). The Supreme Court has held that certain pretrial identification procedures conducted after the attachment of this right are “critical stages” requiring the presence of counsel.

Key Term: Critical Stage
A point in a criminal prosecution after formal charges at which the accused’s rights may be substantially affected, such that the presence of counsel is necessary to ensure a fair trial. Post‑charge lineups and showups are critical stages for Sixth Amendment purposes.

When the Right Applies

Once the right to counsel has attached for a charged offense, the government may not deliberately elicit evidence from the defendant regarding that offense outside the presence of counsel, unless the defendant validly waives counsel. Certain identification procedures fall within this protection.

Post‑Charge Corporeal Lineups:
A suspect has a right to have counsel present at any in‑person lineup conducted after formal charges have been initiated for that offense. [United States v. Wade] Counsel’s presence helps ensure that the lineup is conducted fairly and provides a basis to challenge it later if necessary.
Post‑Charge Showups:
The right to counsel also applies to post‑charge showups (one‑on‑one confrontations between the witness and the suspect). [Moore v. Illinois] Although showups are often disfavored, if used after charges, counsel must be allowed to attend.

Key Term: Offense-Specific Sixth Amendment Right
The Sixth Amendment right to counsel applies only to the particular offense for which adversary proceedings have begun. It does not automatically cover uncharged offenses, even if factually related.

Because the right is offense‑specific, an indicted defendant has a right to counsel at a lineup relating to the charged robbery, but not necessarily at a lineup for an entirely different, uncharged burglary.

When the Right Does Not Apply

Equally important for the MBE is knowing when the Sixth Amendment does not provide a right to counsel.

Pre‑Charge Identifications:
The Sixth Amendment right does not attach before formal charges. Therefore, there is no Sixth Amendment right to counsel at lineups or showups conducted before adversary proceedings begin. [Kirby v. Illinois]
Photographic Identifications (Photo Arrays):
The accused does not have a Sixth Amendment right to counsel at photographic identifications, whether conducted before or after formal charges. [United States v. Ash] The rationale is that the defendant is not physically present and the attorney can later reconstruct the array to challenge its fairness.
Other Procedures (Physical Evidence Collection):
Taking physical evidence like blood samples, handwriting samples, fingerprints, or voice exemplars does not trigger the Sixth Amendment right to counsel, because these are not considered critical stages in which the presence of counsel is needed to ensure fairness.

Key Term: Suggestive Identification Procedure
An identification procedure in which the police, intentionally or unintentionally, single out the suspect (for example, by making the suspect stand out from fillers or by signaling who the suspect is), thereby increasing the risk of misidentification.

Role of Counsel at Lineups and Showups

The lawyer's function at a lineup is primarily that of an observer. Counsel:

Monitors how the lineup or showup is constructed (similarity of fillers, instructions to witnesses).
Notes any police comments or gestures that might influence the witness.
Cannot usually control the procedure or object contemporaneously in a way that stops the lineup, but can later testify at a suppression hearing about any suggestive features.

If counsel is excluded from a post‑charge lineup or showup, any resulting identification generally must be suppressed unless the prosecution can demonstrate that the violation was harmless beyond a reasonable doubt.

Waiver of the Sixth Amendment Right

Like other Sixth Amendment rights, the right to counsel at a post‑charge lineup or showup can be waived. A waiver must be knowing, voluntary, and intelligent. On the MBE, it is common for fact patterns to omit any clear waiver; assume no valid waiver unless the facts explicitly support it.

Worked Example 1.1

Defendant was arrested for robbery. The next day, before any formal charges were filed, the police placed him in a lineup with five other individuals. The witness identified Defendant as the robber. A week later, Defendant was indicted. At trial, the same witness identified Defendant again. Defendant argues the lineup identification was unconstitutional because his lawyer was not present.

Answer:
The argument fails under the Sixth Amendment. The right to counsel attaches only after the initiation of formal adversarial proceedings (e.g., indictment or arraignment). Because the lineup occurred before formal charges, Defendant had no Sixth Amendment right to counsel at the lineup. Any constitutional challenge must instead be based on Due Process, not the Sixth Amendment.

Offense-Specific Nature: Additional Detail

Consider a defendant who has been indicted for Bank A robbery. While he is in custody on that charge, police conduct a lineup in a separate investigation for an uncharged robbery of Bank B and do not provide counsel.

For the Bank A case, a lineup concerning the Bank A robbery would require counsel.
For the Bank B case, where no charges have yet been filed, there is no Sixth Amendment right to counsel, even though the defendant is already represented on the Bank A case.

MBE questions frequently test this “offense‑specific” limitation.

Self-Incrimination and Lineups

The Fifth Amendment privilege against self‑incrimination protects against compelled testimonial or communicative evidence, not the compelled production of physical characteristics.

Being required to stand in a lineup, wear certain clothing, speak set phrases, or provide a voice or handwriting exemplar is considered the compelled display of physical characteristics, not testimonial communication.
Thus, forcing a suspect to say “Give me all your money; I’ve got a gun” during a lineup so a witness can recognize the voice does not violate the Self‑Incrimination Clause, even though it may implicate the Sixth Amendment if conducted after charges without counsel.

This distinction is a classic MBE trap: a lineup scenario may raise Sixth Amendment or Due Process issues, but not necessarily a Fifth Amendment self‑incrimination problem.

Worked Example 1.2

Police lawfully arrest a suspect for armed robbery without a warrant. Without giving Miranda warnings, they immediately place him in a lineup and require each participant to say, “Give me the cash or I’ll shoot.” The bank teller, who saw the robber briefly but heard his voice clearly, identifies the suspect based on his voice at the lineup. The suspect moves to suppress the identification as a violation of the privilege against self‑incrimination.

Answer:
The motion should be denied on Fifth Amendment grounds. Requiring the suspect to speak specific words for voice identification compels only the physical characteristics of his voice (tone, accent), not testimonial content. The privilege against self‑incrimination protects against compelled testimonial communications, not against compelled production of physical evidence. Any challenge to this lineup must focus on the Sixth Amendment (if post‑charge) or Due Process, not on self‑incrimination.

Due Process Limitations

Independent of the Sixth Amendment right to counsel, the Due Process Clauses of the Fifth (federal cases) and Fourteenth (state cases) Amendments provide protection against unreliable identifications. An identification procedure violates Due Process if it is unnecessarily suggestive and there is a substantial likelihood of irreparable misidentification. [Stovall v. Denno; Manson v. Brathwaite; Neil v. Biggers]

This protection applies to all types of identification procedures (lineups, showups, photo arrays) at any stage of the investigation, whether pre‑charge or post‑charge, and whether or not the Sixth Amendment right to counsel has attached.

Key Term: Due Process (Identification)
The constitutional guarantee that prohibits identification procedures which are unnecessarily suggestive and create a substantial likelihood of irreparable misidentification, thereby undermining fundamental fairness.

The Two-Part Due Process Test

Courts follow a two‑step analysis:

Was the Procedure Unnecessarily Suggestive?
- A procedure is suggestive if it singles out the suspect (e.g., only the suspect matches the description, or officers indicate who they suspect).
- It is unnecessarily suggestive if the police could have used a less suggestive alternative without undermining legitimate law‑enforcement needs.
Examples of suggestiveness:
- The suspect is the only person wearing clothing similar to that described by the witness.
- Fillers are obviously different in age, race, or build from the suspect.
- Officers tell the witness “We caught the guy; see if you recognize him.”
Sometimes a showup is justified by exigency—such as taking a wounded witness to view a suspect when the witness may soon lose consciousness. In such cases, the suggestiveness may be “necessary.”
If So, Is the Identification Nonetheless Reliable?
Even if the procedure was unnecessarily suggestive, the identification may still be admissible if, under the totality of the circumstances, it is sufficiently reliable. Reliability is the “linchpin” of Due Process analysis. [Manson v. Brathwaite]

Key Term: Manson Reliability Factors
A set of factors used to evaluate the reliability of an identification despite suggestive procedures, including opportunity to view, degree of attention, accuracy of prior description, level of certainty, and time between crime and identification.

Reliability Factors (Manson / Biggers Factors)

Courts assess reliability by balancing the suggestiveness against factors indicating the witness's ability to make an accurate identification:

The witness's opportunity to view the criminal at the time of the crime (duration, lighting, distance).
The witness's degree of attention (e.g., victim focused on the assailant vs. distracted by other events).
The accuracy of the witness's prior description of the criminal (height, clothing, distinctive features).
The witness's level of certainty at the identification procedure (though modern research questions how probative certainty is, the Supreme Court still treats it as a factor).
The time between the crime and the identification procedure (shorter lapses generally support reliability).

If these factors indicate sufficient reliability, the identification may be admissible despite an unnecessarily suggestive procedure.

Key Term: Suggestive Identification Procedure
For Due Process purposes, an identification method that, by design or execution, points the witness to the suspect (for example, a one‑person showup or a lineup where the suspect stands out), thereby heightening the risk of misidentification.

Police Arranged Suggestiveness

Due Process scrutiny is triggered by police‑arranged suggestiveness. If suggestiveness arises by chance—such as a witness seeing the suspect in the courthouse hallway with officers—it may not invoke the Due Process exclusionary rule, though it still goes to the weight of the identification.

Worked Example 1.3

Victim was robbed at gunpoint in a dimly lit alley. The robber wore a mask covering the lower half of his face. Immediately after the robbery, police apprehended Suspect nearby based on a vague description. They brought Suspect back to the scene alone (a “showup”) and asked Victim, “Is this the man who robbed you?” Victim identified Suspect. Suspect moves to suppress the identification on Due Process grounds.

Answer:
The procedure is clearly suggestive: only one person is shown, with police indicating that this is their suspect. The question is whether the suggestiveness was unnecessary and, if so, whether the identification is nonetheless reliable. Here, Victim had limited opportunity to view (dim lighting, mask), likely high stress, and provided only a vague description. The showup occurred soon after the crime (a factor favoring reliability), but overall, the risk of misidentification is high. Unless the police can justify the showup as necessary (e.g., immediate need to confirm identity before the suspect leaves or the witness becomes unavailable) and reliability factors are strong, a court is likely to find a Due Process violation and suppress the showup identification.

Due Process and Photographic Arrays

Photo arrays are evaluated under the same Due Process framework:

There is no Sixth Amendment right to counsel at photo arrays.
However, if the array is constructed or administered in an unnecessarily suggestive way and results in a substantial likelihood of misidentification, Due Process requires exclusion.

Examples:

Only the suspect's photo is in color; all others are black and white.
Only the suspect matches the witness’s description (e.g., only person with facial hair).

Courts often uphold properly constructed and neutral photo arrays even if the witness had previously failed to identify anyone in another procedure.

Remedy for Unconstitutional Identifications

If an out-of-court identification procedure is found unconstitutional (either under the Sixth Amendment or Due Process), the primary remedy is the exclusion of testimony regarding that out‑of‑court identification at trial.

Suppression of the Out-of-Court Identification

Sixth Amendment Violations:
If the government conducts a post‑charge corporeal lineup or showup without offering counsel (and there is no valid waiver), the resulting identification is inadmissible in the prosecution’s case‑in‑chief. This is essentially a per se exclusion, subject to harmless‑error review.
Due Process Violations:
If the procedure is unnecessarily suggestive and creates a substantial likelihood of misidentification, the out‑of‑court identification must be excluded. The focus is on reliability; if reliability is not sufficient, the evidence is inadmissible.

Admissibility of In-Court Identification

Exclusion of the out‑of‑court identification does not automatically bar the witness from making an in‑court identification of the defendant during the trial. The witness will be permitted to make an in‑court identification if the prosecution can establish by clear and convincing evidence that the in‑court identification is based on the witness's observations of the suspect during the crime, rather than tainted by the improper pretrial identification procedure.

This is known as the independent source doctrine. [United States v. Wade]

Key Term: Independent Source Doctrine
A rule allowing a witness who participated in an unconstitutional out‑of‑court identification procedure to make an in‑court identification if the prosecution proves by clear and convincing evidence that the in‑court identification is based on the witness's independent observations during the crime, untainted by the improper procedure.

Courts use factors similar to the Manson reliability factors to decide whether an independent source exists:

How long the witness viewed the perpetrator during the crime.
Lighting and distance.
Whether the witness focused on the perpetrator or was distracted.
The accuracy of prior descriptions.
The interval between the crime and the initial identification.
Any prior failures to identify or misidentifications.

Worked Example 1.4

After Defendant is indicted for burglary, the police conduct a lineup without notifying Defendant’s attorney. The lineup is otherwise fair. The victim identifies Defendant. The lineup identification is suppressed due to a Sixth Amendment violation. At trial, the victim testifies that she saw Defendant’s face clearly for several minutes in a well‑lit room during the burglary and had previously given an accurate description. The prosecution asks the victim to identify the burglar in court.

Answer:
The in‑court identification may be admissible if the prosecution shows by clear and convincing evidence that it rests on an independent source—namely, the victim’s observations during the crime. The court will weigh factors such as the victim’s opportunity to view (several minutes, well‑lit), degree of attention, and accuracy of the prior description. If those factors are strong, the court can allow the in‑court identification despite the earlier Sixth Amendment violation.

Worked Example 1.5

Police, investigating an uncharged robbery, show a witness a highly suggestive photo array in which only one photo matches the description, and the witness tentatively identifies the suspect. Years later, after a proper, neutral lineup is conducted and the witness confidently identifies the same suspect, the defendant is tried for that robbery. The defendant moves to suppress both the earlier photo identification and the in‑court identification.

Answer:
The earlier photo identification is likely subject to exclusion because the array was unnecessarily suggestive and unreliable. However, the prosecution may still attempt to justify an in‑court identification under the independent‑source doctrine, using factors such as the witness’s original opportunity to view the robber and the strength and consistency of the witness’s memory independent of the tainted photo array. If the court finds that the in‑court identification is based on independent recollection and is reliable under the totality of the circumstances, it may be admitted even though the earlier photo array is suppressed.

Harmless Error

Even when an identification is admitted in violation of the Sixth Amendment or Due Process, a conviction will not automatically be reversed. Appellate courts apply the harmless‑error doctrine: if the remaining evidence of guilt is overwhelming and the improperly admitted identification did not contribute to the verdict beyond a reasonable doubt, the conviction may be affirmed.

Exam Warning

Do not confuse the Sixth Amendment right to counsel with the Due Process analysis, or with the Fifth Amendment privilege against self‑incrimination.

The Sixth Amendment right to counsel applies only to post‑charge corporeal identifications (lineups and showups) and is offense‑specific.
The Due Process clause applies to all identification procedures at any time, focusing on suggestiveness and reliability.
The Fifth Amendment Self‑Incrimination Clause protects against compelled testimonial or communicative evidence, not against being compelled to appear in a lineup, speak set phrases for voice identification, or provide physical exemplars.

A procedure might violate Due Process even if the right to counsel did not attach or was not violated. Conversely, a post‑charge lineup without counsel can violate the Sixth Amendment even if the procedure itself was not suggestive.

Key Point Checklist

This article has covered the following key knowledge points:

The Sixth Amendment right to counsel attaches after formal charges (indictment, information, arraignment, or similar proceedings) and is offense‑specific.
This right applies to post‑charge corporeal lineups and showups, which are “critical stages” of the prosecution.
There is no Sixth Amendment right to counsel at pre‑charge identifications, photographic arrays at any time, or when the police obtain physical evidence such as voice, handwriting, or bodily samples.
The Fifth Amendment privilege against self‑incrimination does not bar compelled participation in lineups or voice exemplars, because these involve physical characteristics rather than testimonial communications.
The Due Process Clause prohibits identification procedures that are unnecessarily suggestive and create a substantial likelihood of irreparable misidentification.
Due Process scrutiny applies to all types of identification procedures (lineups, showups, photo arrays), regardless of the timing of charges or the presence of counsel.
Reliability is assessed using the Manson / Biggers factors: opportunity to view, degree of attention, accuracy of prior description, level of certainty, and time lapse.
The remedy for an unconstitutional out‑of‑court identification is exclusion of that identification.
An in‑court identification following an unconstitutional out‑of‑court identification is admissible if the prosecution shows an independent source by clear and convincing evidence.
Harmless‑error analysis may preserve a conviction even if an identification was admitted in violation of the Sixth Amendment or Due Process.

Key Terms and Concepts

Lineup
Showup
Photographic Array
Corporeal Identification
Critical Stage
Due Process (Identification)
Suggestive Identification Procedure
Manson Reliability Factors
Independent Source Doctrine
Offense-Specific Sixth Amendment Right

Constitutional protection of accused persons - Lineups and o...