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Lineup

LINEUP

A criminal investigation technique in which the police arrange a number of individuals in a row before a witness to a crime and ask the witness to identify which, if any, of the individuals committed the crime.

In a police lineup, a witness to a crime, who may be the victim, observes a group of individuals that may or may not include a suspect in the crime. The witness is not visible to those in the lineup. The witness is asked to identify which, if any, of the individuals committed the crime. A lineup places greater demands on the memory of the witness than does a viewing of a single suspect, and is believed to reduce the chances of a false identification. For example, assume a witness saw a man with a beard and a cap run across an alley near a crime scene. If the police show this witness one man who has a beard and a cap, the witness might make a positive identification. If they instead show the witness several men with a beard and a cap, the witness must make a more detailed identification and may not identify the same man.

In Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966), the U.S. Supreme Court held that the fifth amendment constitutional privilege against self-incrimination—the right not to be made a witness against oneself in a criminal case—does not apply to appearance in lineups. That privilege, held the Court, protects accused people only from being compelled to testify against themselves or to otherwise provide the state with evidence of a testimonial or communicative nature.

The Constitution does afford an accused individual the right to counsel at a post-indictment lineup, and the right not to have testimony from a suggestive lineup admitted at trial. The constitutional right to the presence of counsel at a lineup or for counsel to receive notice of a lineup attaches, or becomes available, when a formal charge, indictment, preliminary hearing, or arraignment is issued or conducted. Post-indictment lineups are considered a critical part of proceedings because the filing of a charge initiates adversary proceedings, triggering the right to counsel (United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 [1967]). Counsel observes the lineup to decide whether to offer information about it during trial in order to cast doubt on an in-court identification. (In an in-court identification, the prosecution asks the witness whether he or she identified anyone in a lineup prior to trial and if so, whether that person is present in the courtroom.) According to Wade, an "intelligent waiver" of counsel and of notice to counsel may be made by the accused.

Police lineups that are conducted prior to the filing of a formal charge or the issuance of an indictment are not regarded as occurring at a critical stage of a criminal proceeding and do not require the presence of counsel.

The Due Process Clause of the Constitution requires that a lineup not be unduly suggestive or conducive to irreparable mistaken identification. An unduly suggestive lineup might be one in which the defendant was the only female. Some characteristics that courts have considered in determining suggestiveness is whether the others in the lineup were of similar age, skin coloration, and physical characteristics such as height and weight.

Courts examine on a case-by-case basis the question of whether a lineup was unduly suggestive or created a likelihood of misidentification. In making this determination, they look at the "totality of circumstances." The totality-of-circumstances test was announced by the Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). This test considers whether the witness or victim had an opportunity to observe the criminal at the time of the crime; the accuracy of the prior description of the accused as well as the degree of attention given to that description; the level of certainty demonstrated by the victim or witness at the confrontation; and the length of time between the crime and the confrontation. Generally, if the court finds that a lineup violated due process, testimony as to the fact of identification is inadmissible. If the lineup complied with constitutional standards, a person who has identified the defendant in the lineup can testify to that fact at trial.

further readings

Headley, Michael R. 2002. "Long on Substance, Short on Process: An Appeal for Process Long Overdue in Eyewitness Lineup Procedures." Hastings Law Journal 53 (March): 681–703.

Sussman, Jake. 2001. "Suspect Choices: Lineup Procedures and the Abdication of Judicial and Prosecutorial Responsibility for Improving the Criminal Justice System." New York University Review of Law & Social Change 27 (December): 507–42.

Yob, Dori Lynn. 2002. "Mistaken Identifications Cause Wrongful Convictions: New Jersey's Lineup Guidelines Restore Hope, but are they Enough? Santa Clara Law Review 43 (winter): 213–47.

cross-references

Criminal Law; Criminal Procedure; Due Process of Law.

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lineup

line·up / ˈlīnˌəp/ • n. 1. a group of people or things brought together in a particular context, esp. the members of a sports team or a group of musicians or other entertainers: a talented batting lineup. ∎  the schedule of television programs for a particular period: NBC's Thursday lineup of hit comedies. 2. a group of people including a suspect for a crime assembled for the purpose of having an eyewitness identify the suspect from among them. ∎  a line or linelike arrangement of people or things.

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Lineup

LINEUP

In opinions whose subtext is unease about eyewitness identification procedures and testimony, the Supreme Court ruled in 1967 that a suspect is entitled to the presence of counsel at a lineup in order to preserve a fair trial at which the witnesses can be meaningfully cross-examined. The opinions were delivered in the cases of united states v. wade and Gilbert v. California.

If a lineup is conducted without counsel, testimony about the lineup identification is automatically excluded. The question then becomes whether the witness who attended the illegally conducted lineup should be allowed to identify the witness at trial. This question centers on whether the witness could have made the in-court identification without having attended the lineup at which counsel was not present: whether, in other words, the witness had an independent source for the identification.

The lineup cases have generated much litigation and writing, both of a practical and a scholarly sort, about the role of counsel. The Court seemed to envision the attorney as a passive observer who would use what he saw to reconstruct for the fact-finder any unfairness in the lineup procedure. But a lawyer's skills are not necessary for observing, and reconstruction on cross-examination creates the risk that through the knowledge he displays in asking questions a lawyer may become a witness in his own case. Perhaps recognizing that having counsel at lineups was an interim measure and perceiving the analytical difficulties, the Court suggested that other techniques, such as photographing or videotaping lineups, could obviate the need for counsel.

the right to counsel at lineups was greatly undercut in Kirby v. Illinois (1972), in which the Court held that the right begins only "at or after the initiation of adversary criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Because most lineups are part of the investigative stage of a case and occur before any of the indices of a formal charge, Kirby necessarily implied that a lawyer or some other observer was not, in fact, generally required.

Untouched by Kirby, however, is the argument, made in Stovall v. Denno (1967), that identification procedures may be so "unnecessarily suggestive and conducive to irreparable mistaken identification" as to violate due process of law. An example of a due process violation would be showing a crime victim only the suspect dressed in clothes like those of the perpetrator when there was time to arrange a proper lineup. Once such a due process violation is proven, the issue shifts to whether it tainted the in-court identification: whether there was "a very substantial likelihood of irreparable mistaken identification." This decision mirrors that of a court in deciding whether a victim can make an in-court identification after attending a lineup where counsel was not present.

The effect of the lineup decisions has been to focus attention on all of the procedures used in pretrial confrontation of witnesses and suspects and thus to improve the fairness of these previously unobserved, but critically important, occasions.

Barbara Allen Babcock
(1986)

Bibliography

Levy, Leonard W. 1974 Against the Law. Pages 242–258. New York: Harper & Row.

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