Due process implications related to identification - Next Generation Bar Exam

1. Which factors determine the reliability of an identification made after a suggestive procedure?

   The witness's opportunity to view, degree of attention, accuracy of description, level of certainty, and time elapsed. These factors come from Neil v. Biggers and Manson v. Brathwaite.

2. Under Perry v. New Hampshire, when does the due process check on identification evidence apply?

   Only when the police arranged the suggestive circumstances. Suggestiveness arising without police involvement is tested through cross-examination and jury instructions.

3. What is the remedy for a post-charge lineup conducted without counsel?

   Exclusion of the out-of-court identification, with any in-court identification allowed only if it has an independent source. This remedy comes from United States v. Wade and Gilbert v. California.

4. What happens to an identification that followed a suggestive procedure but is nonetheless reliable?

   It is admissible, and its weight is for the jury. Defense counsel may expose the suggestiveness through cross-examination.

5. What due process test governs the admissibility of an eyewitness identification?

   Whether an unnecessarily suggestive procedure created a substantial likelihood of misidentification. Reliability is the linchpin of the analysis.

6. Under United States v. Ash, what right to counsel exists at a photographic identification?

   There is no right to counsel at a photo array, even after formal charges. The defendant is not present at a photo array, so it is not a trial-like confrontation.

7. What must the prosecution show to admit an in-court identification after a tainted pretrial identification?

   By clear and convincing evidence, that the in-court identification has an independent source. The independent source is usually the witness's original observation of the crime.

8. When does the Sixth Amendment right to counsel apply at a lineup?

   At lineups conducted after formal adversary judicial proceedings have begun. Kirby v. Illinois held there is no right to counsel at pre-charge lineups.

9. Police needlessly show a robbery victim one photo of the suspect. She saw the robber for two minutes in good light and described him accurately. What is the likely ruling?

   The identification is admissible because it is reliable despite the suggestive procedure. Under Manson v. Brathwaite, strong reliability factors outweigh the suggestiveness.

10. How are one-person showups treated under due process?

    They are inherently suggestive but often permitted when conducted promptly near the scene. Prompt showups can confirm or dispel suspicion quickly.

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