The primary purpose of identification is to obtain evidence to assist in determining whether the defendant is guilty of the charge.

The three major forms if identification evidence are lineups, show-ups, and photographs.

The two major constitutional issues are due process rights and the right to counsel.

A person has the right to have counsel present at any out-of-court lineup or show-up after adversary judicial proceedings have commenced.

If the government violates the defendant’s right to have counsel present, the identification evidence of the lineup is generally not admissible.

Under the same set of facts, can the government, during the trial, and without attempting to introduce the inadmissible identification evidence, have the witness identify the defendant in open court?

The general rule is that the prosecution may not obtain an in-court identification of the defendant by the tainted witness unless the prosecution proves by clear and convincing evidence that the in-court identification is not a fruit of the illegal out-of-court identification.

One of the major problems in eyewitness identification is suggestively.

The SC has held that it is a violation of due process if the pretrial identification procedure is "so impermissibly suggestive to give rise to a substantial likelihood of irreparable misidentification."

Accordingly, it is a violation of due process to suggest in any way to a witness that nay person in a lineup or show-up committed the crime.

It is also wrong to tell the victim or witness that he or she has selected the right or wrong person.

Show-ups are one-on-one confrontations between the suspect and the witness held shortly after the crime and usually at the crime scene.

Show-ups by their very nature tend to be suggestive.

The courts have allowed show-ups if held shortly after the crime, based on the fact that the offender’s looks are fresh in the mind of the witness.

If the witness can clear a suspect, then the police can move on with the investigation.

A suspect does not have the right to have counsel present during a lawful "in-field" show-up.

The SC suggests that a court reviewing a show-up should consider all the factors in reviewing the legality of a show-up, including:

Did a true emergency justify the show-up?

Does it appear that the police were acting in good faith?

Did the police conduct suggest that the individual committed the crime?

Had a short amount of time elapsed between the crime and the show-up?

In Stovall, the Court held that the totality of the circumstances test should be used to determine if the witness’s identification of a suspect is likely to be reliable.

No single factor should be controlling.

The court also noted that a short time lapse between the crime and the show-up does not automatically justify the show-up, but it is an important factor.

Under the federal rule, a suspect has no right to an attorney at a physical lineup unless formal charges have been filed.

In some states, like California, the accused has the right to have an attorney present at the physical lineup regardless of whether charges have been filed.

The role of the defense attorney in a lineup is as observer only: Counsel cannot rearrange the order of suspects, cross examine witness, or ask questions.

The suspect may waive the right to have an attorney present at a lineup where such a right exists.

The suspect has no right to have an attorney present during a photographic lineup.

A photographic lineup, unlike a physical lineup, can accurately be recreated in court.

Photo displays do not require the presence of the defendant and they are a mere preparatory step in gathering evidence; defense counsel has an equal ability to seek and interview witnesses.

Several appellate courts have held that the ID of a suspect on videotape is more like a photo display than a lineup and therefore there is no adversarial confrontation with the attached right for counsel to attend.

There is not right to counsel at a pretrial confrontation for the purpose of taking handwriting exemplars, blood or other bodily fluid samples, or fingerprints.

In addition, the taking of these items is not a violation of the privilege against self-incrimination since the defendant is not being asked to give "testimonial" or "communicative" evidence.

The defendant has the burden of proving a violation of his or her due process rights involving the identification evidence.

To satisfy this burden, the defendant must 1) establish that the identification procedures were impermissibly suggestive, and 2) that the identification was unreliable under the totality of the circumstances test.

The degree of police suggestiveness

The opportunity the witness had to view the suspect before the identification (did they get a good look at the scene of the crime?)

The degree of attention the witness focused on perpetrator during the crime

Accuracy of descriptions provided by the witness

Level of the whiteness's certainty about the ID

Length of time between crime and ID

The character of the witness—is the person easily led?