Identification Procedures — Evaluate identification methods - Bar Exam Uniform

SECTION 1

Historical Context & Motivation

The question of how the state identifies criminal suspects has been central to American jurisprudence since the nation's founding, but the Supreme Court did not seriously grapple with the constitutional dimensions of identification procedures until the mid-twentieth century. Before that era, police had broad discretion in how they presented suspects to witnesses, and misidentification was a leading cause of wrongful convictions—a problem that DNA exoneration data would later confirm with devastating clarity. The Warren Court's criminal procedure revolution of the 1960s brought identification methods under constitutional scrutiny, anchoring the analysis in the Sixth Amendment right to counsel and the Fourteenth Amendment due process clause. These doctrinal developments shaped the framework that bar examinees must master today.

1967 • United States v. Wade

The Supreme Court held that a post-indictment lineup is a critical stage of prosecution, triggering the Sixth Amendment right to counsel. Without counsel present, the identification is inadmissible unless the prosecution can show an independent basis for the in-court identification.

1967 • Stovall v. Denno

Decided the same year as Wade, this case established the totality of the circumstances test for evaluating the admissibility of identification evidence under due process, particularly for showup identifications conducted under exigent circumstances.

1972 • Kirby v. Illinois

The Court limited Wade's right-to-counsel holding, ruling that the Sixth Amendment right attaches only after the initiation of adversary judicial proceedings—formal charge, indictment, arraignment, or preliminary hearing—not during pre-charge investigative lineups.

1977 • Manson v. Brathwaite

The Court articulated the modern due process standard, holding that even if an identification procedure is suggestive, the identification is admissible if it is reliable under the totality of the circumstances. The Court enumerated five reliability factors (the Biggers factors) that remain the controlling framework.

2012 • Perry v. New Hampshire

The Court held that due process scrutiny under the Manson/Biggers framework applies only when the suggestive circumstances are arranged by law enforcement. Suggestive identifications arising from happenstance do not trigger judicial prescreening, though they may still be challenged through ordinary evidentiary objections at trial.

The central question that animates this entire area of law is straightforward but profoundly difficult: How do we evaluate whether an identification procedure is constitutionally sound, and what is the remedy when it is not? The answer depends on which constitutional provision is invoked—the Sixth Amendment right to counsel or Fourteenth Amendment due process—and on the procedural posture of the case. Mastering this framework requires understanding not only the doctrinal rules but also the empirical critiques that have emerged from decades of social science research on eyewitness reliability.

SECTION 2

Core Principles & Definitions

Identification procedure law rests on two distinct constitutional pillars, each with its own trigger, scope, and remedy. The Sixth Amendment right to counsel governs corporeal (in-person) identification procedures conducted after formal charges, while the Fourteenth Amendment due process clause provides a broader but more flexible safeguard against unreliable identifications at any stage. Understanding when each applies—and when neither does—is essential for bar exam success.

Sixth Amendment Right to Counsel

Applies only to post-charge, corporeal identification procedures (lineups and showups). Does not apply to photographic arrays. Violation triggers exclusion of the identification unless the prosecution demonstrates an independent source for any subsequent in-court identification.

Due Process (Manson/Biggers Framework)

Applies to all identification methods at any procedural stage, but only when suggestiveness is arranged by law enforcement (Perry). A two-step inquiry asks: (1) Was the procedure impermissibly suggestive? (2) If so, was the identification nonetheless reliable under the totality of the circumstances?

The Five Biggers Factors

Reliability is assessed by: (1) the witness's opportunity to view the suspect; (2) the witness's degree of attention; (3) the accuracy of the prior description; (4) the level of certainty at the confrontation; and (5) the time between the crime and the confrontation.

Three Identification Methods

A lineup presents the suspect among fillers for the witness to identify. A showup is a one-on-one confrontation, typically near the crime scene shortly after the crime. A photographic array (photo spread) presents photographs rather than live individuals—critically, no right to counsel attaches.

Exclusionary Remedy & Independent Source

When an identification is suppressed, the prosecution may still introduce an in-court identification if it can demonstrate the witness's ability to identify the defendant stems from an origin independent of the tainted procedure—such as ample opportunity to observe the perpetrator during the crime itself.

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KEY TAKEAWAY

Think of identification procedure analysis like a two-lock security system. The Sixth Amendment is a narrow but strong deadbolt—it only engages after formal charges and only for in-person procedures, but when it applies, exclusion is nearly automatic absent an independent source. The due process clause is a broader but more flexible latch—it covers all identification methods at any stage, but it opens if the prosecution can demonstrate reliability despite suggestiveness. On the bar exam, always check both locks before concluding an identification is admissible.

SECTION 3

Visual Explanation — Constitutional Decision Tree

This flowchart illustrates the two-track constitutional analysis for identification procedures. The left branch examines the Sixth Amendment right to counsel (applicable only to post-charge corporeal procedures), while both branches converge on the due process analysis with its two-step suggestiveness-and-reliability inquiry.

The flowchart reveals a critical structural insight for bar examinees: every identification procedure must be analyzed under both constitutional provisions where applicable. A post-indictment lineup conducted without counsel is not automatically excluded on due process grounds—it must separately fail the Manson/Biggers reliability test. Conversely, a photographic array can never violate the Sixth Amendment regardless of how suggestive it is, because the Court has held that photographic identifications are not critical stages requiring counsel's presence (United States v. Ash, 1973). The flowchart also underscores that suggestiveness alone does not require exclusion under due process; the court must find that the suggestiveness created a very substantial likelihood of irreparable misidentification after weighing the Biggers factors.

SECTION 4

How the Framework Operates — The Manson/Biggers Test

The Manson v. Brathwaite framework operates as a two-step analytical mechanism. At Step One, the defendant bears the burden of demonstrating that the identification procedure was impermissibly suggestive. If the defendant satisfies this threshold, the burden shifts to the prosecution at Step Two to establish that, despite the suggestiveness, the identification was reliable under the totality of the circumstances. The reliability inquiry revolves around the five factors articulated in Neil v. Biggers (1972) and confirmed in Manson (1977). Understanding each factor's weight and how courts balance them is essential for constructing a persuasive exam analysis.

Step One: Impermissible Suggestiveness

A procedure is impermissibly suggestive when law enforcement actions effectively communicate to the witness which individual the police suspect, thereby tainting the witness's independent judgment. Classic examples include a lineup in which the suspect is the only participant matching the witness's prior description, a showup in which the suspect is presented in handcuffs with officers stating "we caught the guy," or a photographic array where one photograph is significantly larger, more recent, or differently framed than the others. The key threshold question under Perry v. New Hampshire (2012) is whether the suggestiveness was orchestrated by law enforcement. If the suggestive circumstances arose accidentally—say, a witness happened to see the defendant being escorted by police from the courthouse—due process prescreening does not apply, and the identification's reliability is left for the jury to assess through cross-examination and expert testimony.

Step Two: The Five Biggers Reliability Factors

Opportunity to view the criminal at the time of the crime. Courts examine lighting conditions, distance, duration of observation, and whether the view was obstructed. A witness who had a clear, face-to-face encounter for several minutes in good lighting fares better than one who glimpsed the perpetrator fleetingly from across a dark parking lot.
Degree of attention. A trained law enforcement officer or a victim who was directly engaged with the perpetrator generally demonstrates a higher degree of attention than a casual bystander. Courts also consider whether the witness was distracted by fear, injury, or simultaneous events.
Accuracy of the witness's prior description of the criminal. If the witness provided a detailed physical description before the identification procedure that closely matches the suspect, this factor cuts in favor of reliability. Vague or contradictory prior descriptions undermine it.
Level of certainty demonstrated at the confrontation. Courts traditionally gave weight to a witness's expressed confidence ("I'm absolutely sure that's the man"), although social science research has shown that witness certainty does not necessarily correlate with accuracy—a tension the Court has acknowledged but not fully resolved.
Time between the crime and the confrontation. Memory degrades over time. An identification made within hours of the crime is more likely to be reliable than one made weeks or months later, all else being equal.

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Perry's Limiting Principle

After Perry v. New Hampshire (2012), remember that the Manson/Biggers test is triggered only when the suggestiveness is arranged by law enforcement. If a witness's identification was influenced by purely accidental or private-party conduct—such as seeing the defendant's photograph in a newspaper—due process prescreening under Manson does not apply. The defendant's remedy lies in cross-examination, jury instructions, and the ordinary rules of evidence.

SECTION 5

Detailed Breakdown — Lineups, Showups, and Photo Arrays

The three principal identification methods—lineups, showups, and photographic arrays—each present distinct constitutional considerations. The method employed determines which constitutional protections attach, what suggestiveness concerns arise, and how courts evaluate reliability. The following diagram and table provide a comparative overview that bar examinees can use as a reference framework.

The three identification methods differ in their constitutional footprint. Only corporeal procedures (lineups and showups) can trigger the Sixth Amendment right to counsel, while photographic arrays are governed exclusively by due process. Showups carry the highest inherent suggestiveness risk because the witness is presented with only one individual.

Dimension	Lineup	Showup	Photo Array
Right to Counsel	Yes, post-charge (Wade)	Yes, post-charge (Wade)	No (Ash)
Due Process	Yes (Manson/Biggers)	Yes (Stovall/Manson)	Yes (Manson/Biggers)
Inherent Suggestiveness	Low–Moderate	High	Low–Moderate
When Typically Used	Pre-trial investigation; post-charge	Shortly after crime near scene	Any stage; suspect not in custody
Waivable by Defendant?	Counsel right is waivable	Counsel right is waivable	N/A (no counsel right)

Comparative Analysis of Identification Methods

SECTION 6

Worked Example — Analyzing an Identification Procedure

The following hypothetical illustrates how to apply the identification procedure framework in a bar exam essay. Notice how the analysis systematically addresses both constitutional provisions and each Biggers factor.

Hypothetical: The Gas Station Robbery Identification

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Step 1 — Identify the Facts

Victim V was robbed at gunpoint at a gas station at 11 p.m. The encounter lasted approximately 90 seconds. The area was lit by overhead fluorescent lights. V described the robber to police as a "white male, approximately 6 feet tall, mid-twenties, with a scar on his left cheek." Three weeks later, after Defendant D was arrested and formally charged, police conducted a lineup in which D was the only participant with a facial scar. V identified D, stating she was "pretty sure" it was him. D's attorney was not notified of the lineup.
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Step 2 — Sixth Amendment Analysis

Under Wade and Kirby, D has a Sixth Amendment right to counsel at this lineup because (1) the procedure is a corporeal identification (live lineup, not photographs), and (2) formal charges have been filed, meaning adversary judicial proceedings have commenced. D's attorney was not notified, and there is no indication D waived the right. Therefore, the lineup identification was obtained in violation of the Sixth Amendment.

Sixth Amendment violated — lineup identification excluded unless prosecution proves independent source for in-court ID.
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Step 3 — Due Process Analysis (Suggestiveness)

Independently, the lineup was impermissibly suggestive because D was the only participant with a scar—the very distinguishing feature V described. This effectively communicated to V that D was the suspect, undermining V's independent judgment. The suggestiveness was arranged by law enforcement (the police assembled the lineup), so Perry's threshold requirement is met, triggering the Manson/Biggers reliability analysis.
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Step 4 — Due Process Analysis (Biggers Reliability Factors)

(1) Opportunity to view: Moderate. The encounter lasted 90 seconds under fluorescent lighting, but it was nighttime and V was under duress from the weapon. (2) Degree of attention: V was the direct victim and likely focused on the robber, though the presence of a gun may have caused weapon-focus effect, reducing attention to facial details. (3) Accuracy of prior description: The description was reasonably detailed and included the distinctive scar, which matches D. This factor favors reliability. (4) Level of certainty: V said she was only "pretty sure," indicating less than complete confidence. This factor cuts against reliability. (5) Time between crime and confrontation: Three weeks elapsed. While not extremely long, memory degradation is a concern, and this factor is at best neutral.
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Step 5 — Conclusion

On balance, the identification is vulnerable on both constitutional grounds. The Sixth Amendment violation independently requires exclusion of the lineup identification. Under due process, the suggestive composition of the lineup, combined with only moderate certainty and a three-week delay, creates a substantial likelihood of misidentification. A court would likely suppress the out-of-court identification. The prosecution could attempt to introduce V's in-court identification if it demonstrates, by clear and convincing evidence, that V's ability to identify D has an independent origin—her 90-second face-to-face observation under fluorescent lights with a noted distinguishing feature.

Lineup identification likely suppressed on both Sixth Amendment and due process grounds. In-court identification may survive if prosecution proves independent source.

SECTION 7

Strengths and Limitations of the Current Framework

The Manson/Biggers framework has governed identification procedure challenges for nearly half a century. While it provides a structured analytical tool, it has attracted significant criticism from both the bench and the academy. Understanding both its doctrinal strengths and its empirical limitations is important not only for bar exam performance but for sophisticated legal reasoning about criminal procedure reform.

Strengths	Limitations
Provides a structured, multi-factor balancing test that gives courts flexibility to assess each case's unique facts.	The reliability factors themselves (especially witness certainty) are not well supported by empirical research on memory and eyewitness identification.
Allows admission of reliable identifications even when procedural defects exist, avoiding unnecessary exclusion of probative evidence.	By permitting suggestive identifications if deemed reliable, the framework may incentivize police to use less rigorous procedures knowing evidence may still be admitted.
Distinguishes between police-arranged suggestiveness and accidental suggestiveness (Perry), preserving due process prescreening for state action.	Perry's state-action requirement leaves witnesses who were influenced by non-police suggestiveness without meaningful judicial gatekeeping—juries may be poor evaluators of eyewitness reliability.
The Sixth Amendment right-to-counsel protection provides a bright-line rule for post-charge corporeal procedures, ensuring defense presence at a critical stage.	The Kirby limitation (pre-charge proceedings) means most lineups occur before the right attaches, as police typically conduct identification procedures early in investigations before filing formal charges.

Strengths and Limitations of the Identification Procedure Framework

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KEY TAKEAWAY

Think of the Manson/Biggers framework as a quality-control inspection at a factory. The inspection (judicial prescreening) catches some defective products (unreliable identifications), but the inspection criteria themselves may be flawed—they rely on indicators (like witness confidence) that social scientists have shown are poor proxies for actual accuracy. Several states, recognizing this gap, have reformed their identification procedures through state constitutional law or legislative action, adopting measures such as double-blind administration, sequential presentation, and mandatory recording of witness confidence statements at the time of identification.

SECTION 8

Connection to Advanced Theory — State Reforms and Evolving Standards

While the Supreme Court's Manson/Biggers framework remains the controlling federal standard, a growing number of state courts and legislatures have developed more protective approaches that reflect advances in social science research on eyewitness memory. These developments represent the frontier of identification procedure law and occasionally appear on bar examinations as policy analysis questions or in jurisdictions that test state-specific criminal procedure.

Dimension	Federal Standard (Manson/Biggers)	Emerging State Reforms
Suggestiveness Trigger	Police-arranged suggestiveness only (Perry)	Some states (e.g., Oregon) apply prescreening regardless of source of suggestiveness
Reliability Factors	Traditional five Biggers factors, including witness certainty	New Jersey (Henderson, 2011) adopted scientifically updated factors distinguishing system and estimator variables
Burden of Proof	Defendant must show suggestiveness; prosecution must show reliability	Some states shift the entire burden to the prosecution once defendant raises a colorable suggestiveness claim
Procedural Safeguards	No specific procedural requirements beyond constitutional minima	Mandatory double-blind administration, sequential presentation, recording, and confidence statements in many jurisdictions
Jury Instructions	No specific requirement; general credibility instructions	Enhanced jury instructions on factors affecting eyewitness reliability (e.g., cross-racial identification, weapon focus, stress)

Federal vs. Emerging State Standards for Identification Procedures

The New Jersey Supreme Court's landmark decision in State v. Henderson (2011) represents the most significant state-level departure from the Manson/Biggers framework. The Henderson court distinguished between system variables (factors within law enforcement control, such as lineup composition and administrator conduct) and estimator variables (factors inherent in the circumstances, such as lighting, distance, and cross-racial identification). This distinction provides a more scientifically grounded framework for assessing reliability and allocating responsibility for procedural deficiencies. Bar examinees should be aware of these developments even on a uniform bar exam, as they may inform policy-oriented essay questions asking candidates to evaluate the adequacy of existing constitutional protections.

SECTION 9

Practice Problems

Question 1: CONCEPTUAL

Explain why the Sixth Amendment right to counsel does not apply to photographic identification procedures, even when they are conducted after formal charges have been filed. What is the doctrinal rationale the Supreme Court provided in United States v. Ash?

Show answer

In United States v. Ash (1973), the Supreme Court held that the Sixth Amendment right to counsel attaches only at proceedings where the accused requires the "guiding hand of counsel" to confront the intricacies of the legal system and to preserve the defendant's basic right to a fair trial. The Court reasoned that a photographic display is not a "trial-like adversary confrontation" because the defendant is not physically present and thus faces no risk of being overwhelmed by the prosecution's procedural advantages. Unlike a live lineup, where the defendant may be asked to speak, move, or stand in ways that could subtly prejudice the identification, a photo array presents no such direct confrontation. The defense can effectively challenge the procedure after the fact through discovery of the photographs used, cross-examination of the witness, and expert testimony—remedies that the Court deemed sufficient to protect the defendant's rights without requiring counsel's presence at the procedure itself.

Question 2: BASIC APPLICATION

Defendant D is arrested on suspicion of armed robbery. Before any formal charges are filed, police conduct a lineup in which D is placed among five fillers who roughly match D's physical description. D's attorney is not notified. The witness identifies D. D later moves to suppress the identification on Sixth Amendment grounds. Should the motion be granted?

Show answer

No, the motion should be denied on Sixth Amendment grounds. Under Kirby v. Illinois (1972), the Sixth Amendment right to counsel at identification procedures attaches only after the initiation of adversary judicial proceedings—meaning formal charge, preliminary hearing, indictment, information, or arraignment. Here, D was arrested on suspicion but no formal charges were filed before the lineup was conducted. Therefore, the lineup occurred during the pre-charge investigative stage, and the Sixth Amendment right to counsel had not yet attached. D may still challenge the lineup under the Fourteenth Amendment due process clause if the procedure was impermissibly suggestive and unreliable under the Manson/Biggers framework, but the Sixth Amendment claim itself fails at the threshold question of timing.

Question 3: INTERMEDIATE

A convenience store clerk witnesses a robbery lasting approximately two minutes in a well-lit store. The clerk gives police a description: "Tall male, about 30, wearing a red hoodie." Two days later, police show the clerk a six-photograph array. All photos show men of similar age and build, but D's photo is the only one in color—the other five are black-and-white. The clerk identifies D's photo. Analyze the admissibility of this identification under the due process clause.

Show answer

This question requires the two-step Manson/Brathwaite analysis. At Step One, the photo array is impermissibly suggestive because D's photograph is the only one in color, which inevitably draws the witness's eye and effectively signals to the witness which photograph the police consider the suspect. This suggestiveness was arranged by law enforcement (the police assembled the array), satisfying Perry's threshold requirement. At Step Two, the court must weigh the Biggers reliability factors: (1) Opportunity to view: strong—two minutes in a well-lit store with direct interaction; (2) Degree of attention: high—the clerk was the direct victim of the robbery; (3) Accuracy of prior description: limited—"tall male, about 30, wearing a red hoodie" is vague and does not include distinctive facial features; (4) Level of certainty: not specified, but the suggestive array format may have artificially inflated any confidence; (5) Time between crime and confrontation: only two days, which is favorable. On balance, despite the short time interval and good viewing conditions, the vague prior description combined with the highly suggestive format creates a substantial risk that the identification was the product of the suggestion rather than genuine recognition. A court could go either way, but a strong argument exists for exclusion. The prosecution's best strategy is to argue the witness's two-minute face-to-face observation provides an independent source for any subsequent in-court identification.

Question 4: APPLIED

Police respond to a 911 call about a carjacking. Within 20 minutes, officers stop a vehicle matching the victim's description two blocks from the scene. Officers bring the victim to the location of the stop and present the driver (Defendant D) to the victim while D is standing next to the police car in handcuffs. The victim identifies D. D has not been formally charged. D moves to suppress. Analyze under both the Sixth Amendment and the due process clause, and discuss whether the showup is likely to survive constitutional scrutiny.

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Under the Sixth Amendment, the showup occurred before formal charges were filed, so under Kirby v. Illinois, no right to counsel had attached. The Sixth Amendment claim fails. Under the due process clause, the showup is inherently suggestive—a one-on-one confrontation with the suspect in handcuffs next to a police car communicates unmistakably that the police believe this person is the perpetrator. The suggestiveness is police-arranged (satisfying Perry), triggering the Biggers analysis. However, showups conducted shortly after the crime have been consistently upheld by courts when justified by exigent circumstances or investigative necessity. Here, the 20-minute interval between the crime and the identification is extremely favorable for reliability: the victim's memory is fresh, the viewing conditions near the scene are proximate to the original event, and the short time span reduces memory contamination. The Biggers factors likely weigh in favor of reliability: the victim presumably had a direct encounter with the carjacker, the degree of attention was high (being a crime victim), the time interval is minimal, and presuming the victim's certainty is strong, most factors cut in favor of admissibility. Despite the inherent suggestiveness of the showup format, courts routinely admit such identifications when they are conducted promptly and serve legitimate investigative purposes—such as quickly confirming whether officers have detained the right suspect so that the search can continue if they have not. The identification will likely survive constitutional scrutiny.

Question 5: CRITICAL THINKING

Justice Sotomayor's dissent in Perry v. New Hampshire argued that the majority's requirement of police-arranged suggestiveness as a threshold for due process scrutiny is inconsistent with the purpose of the Manson/Biggers framework. Evaluate this critique. Should the due process inquiry focus on the reliability of the identification regardless of the source of suggestiveness? Consider the policy implications of each position, including the role of the jury, the risk of wrongful convictions, and the administrability of the standard.

Show answer

Justice Sotomayor's critique rests on the premise that the Manson/Biggers framework's ultimate concern is reliability, not deterrence of police misconduct. If the constitutional injury is the admission of unreliable identification evidence—which creates a risk of wrongful conviction and thus deprives the defendant of due process—then the source of the suggestiveness should be irrelevant. An identification tainted by seeing the defendant's photograph on the evening news is no more reliable than one tainted by a biased police lineup. The majority countered with several persuasive points: first, due process under the Fourteenth Amendment has traditionally been concerned with state action, not private or accidental influences; second, extending prescreening to all identifications would vastly expand the scope of pretrial suppression hearings, imposing significant administrative costs; third, the existing trial process—cross-examination, expert testimony, and jury instructions—provides adequate safeguards against unreliable non-police-generated identifications. The policy tradeoffs are real. Sotomayor's approach better protects against wrongful convictions by subjecting all potentially unreliable identifications to judicial gatekeeping, but it risks overwhelming courts with suppression motions and effectively makes judges, rather than juries, the primary evaluators of eyewitness credibility in a broader range of cases. The majority's approach preserves the jury's traditional fact-finding role but may leave defendants vulnerable when powerful suggestive influences arise outside the police context. A balanced assessment recognizes that the majority's rule is more administrable but empirically less protective, while Sotomayor's approach is more theoretically consistent with the reliability rationale but practically more burdensome. State courts like New Jersey in Henderson have found middle-ground approaches—such as enhanced jury instructions informed by social science—that may better serve both values.

SUMMARY

Summary — Identification Procedures

Summary

Identification procedure analysis on the bar exam requires a two-track constitutional approach. The Sixth Amendment right to counsel applies only to post-charge corporeal procedures (lineups and showups), as established in Wade and limited by Kirby. It does not extend to photographic arrays under Ash. Violation results in exclusion of the identification unless the prosecution demonstrates an independent source for any in-court identification.

The Fourteenth Amendment due process clause provides broader coverage across all identification methods and procedural stages, but applies only when suggestiveness is arranged by law enforcement (Perry). The analysis proceeds in two steps: (1) Was the procedure impermissibly suggestive? (2) If so, was the identification nonetheless reliable under the five Biggers factors: opportunity to view, degree of attention, accuracy of prior description, level of certainty, and time between the crime and the confrontation. Always analyze both constitutional provisions where applicable, and remember that showups are inherently suggestive but may be upheld when conducted promptly after the crime under exigent circumstances.