- The defendant moves to suppress Ruiz's out-of-court identification. How should the court rule?
Answer: Deny the motion. The procedure was unnecessarily suggestive, but the court's findings as to opportunity to view, attention, description, certainty, and promptness show no substantial likelihood of irreparable misidentification, so the identification may be admitted.
This question tests the due-process framework for pretrial identifications under Harmon. The key is to remember the two-step inquiry: was the procedure unnecessarily suggestive, and if so, did it create a substantial likelihood of irreparable misidentification? Suggestiveness alone is not enough.
Here, the court already found the detective's comment made the array suggestive and that the procedure was unnecessary because a double-blind sequential alternative was practicable. So the first step is satisfied. But the second step is where the state wins: Ruiz viewed the robber from four feet in good lighting for about two minutes, gave a prompt detailed description, and was "fairly certain" just 36 hours later. These reliability factors outweigh the suggestive procedure, so denial is correct.
"Grant the motion" fails because it assumes automatic exclusion after a finding of unnecessary suggestiveness—that is precisely what Harmon rejects. The reliability factors apply to the out-of-court identification itself, not only to later in-court identification. The "per se" suppression choice similarly misreads practicability: a practicable double-blind sequential procedure makes the chosen procedure unnecessary, but it does not eliminate the need to evaluate reliability. Finally, the claim that only a single-photo or single-suspect display can violate due process is false; a six-photo array can be suggestive through words or conduct, as the detective's comment shows.
On exam day, when you see an identification-suppression question, immediately separate suggestiveness from reliability—and remember that the witness's opportunity to view, attention, description, certainty, and promptness can rescue an otherwise suggestive procedure.
- Which of the following is the best response to D's motion?
Answer: Deny the motion; the in-court identification is admissible because it is based on the witness's independent memory of the burglar, as shown by her detailed pre-showup description and substantial opportunity to observe.
When you see a motion to exclude an in-court identification after a pretrial showup, think due process, not just counsel. The key inquiry is whether the showup was unnecessarily suggestive and, if so, whether the in-court identification is nevertheless reliable because it has an independent basis.
Here, the station-house showup was suggestive — D was alone in police custody, presented as the caught burglar. But suggestiveness alone does not require suppression. The court evaluates the witness's independent memory using factors like opportunity to observe, accuracy of prior description, and certainty. V had seen the burglar for several minutes, gave a detailed description of the gold tooth and dragon tattoo before any showup, and therefore her in-court identification rests on an independent memory. So the motion should be denied.
The first wrong answer, that a suggestive showup "forever bars" identification, is too absolute: the Supreme Court permits in-court identification if reliability outweighs the corrupting effect of suggestion. The answer saying that because the right to counsel had not attached, "suggestiveness is irrelevant" confuses two separate doctrines: a pre-charge showup does not trigger counsel, but it can still violate due process if unnecessarily suggestive. Finally, the answer claiming that arrest but not indictment required counsel at the showup is wrong — the right to counsel attaches only at post-charge critical stages, not to pre-charge police identification procedures.
Study tip: whenever a pretrial identification question appears, run the two-step due process test — suggestiveness, then independent reliability — before considering Sixth Amendment counsel rules.
- Which additional fact, if true, would most strongly support the prosecution's position that the identification should not be suppressed?
Answer: The victim's description of the assailant's height, hair, and tattoo was provided before she viewed the photo array
When you see an eyewitness-identification challenge, remember the due-process test: a photo array is suppressed if it was unnecessarily suggestive and created a substantial risk of misidentification. Even if the array is suggestive, the identification can survive if it is reliable under the totality of the circumstances—especially accuracy of description, opportunity to view, attention, certainty, and time.
Here, the defense has a strong point: the defendant's photo was the only one with a neck tattoo, and others differed in age. But the prosecution's strongest counter is that the victim gave her description before viewing the array. That fact shows her description of height, hair, and tattoo came from her independent memory of the assailant, not from being steered by the photos. It directly supports reliability and helps defeat suppression.
The detective not being present when she described the assailant is irrelevant; the suggestiveness problem is the array itself, not when the detective heard the description. The prior newspaper photograph actually hurts the prosecution—it creates an alternative source for her recognition and strengthens the defense's contamination argument. And enough evidence to arrest before the array does not cure suggestiveness; police may still conduct a flawed identification procedure.
Study tip: when a lineup is suggestive, hunt immediately for evidence of an independent, pre-array description. That is often the key to reliability.
- How should the court rule on D's motion to suppress the identification?
Answer: Grant; the procedure was unnecessarily suggestive, and the identification lacks sufficient indicia of reliability to overcome the resulting likelihood of misidentification.
Whenever you see a motion to suppress an eyewitness identification, the central question is whether the pretrial procedure was unnecessarily suggestive and, if so, whether the identification still has sufficient independent reliability to be admitted. A single-photo display is inherently suggestive, so the court must apply the totality-of-the-circumstances reliability test. Here, the clerk initially described only a Black man, about six feet tall, wearing all black—nothing about his eyes. Her post-photo claim that she recognized the robber's eyes, after the prosecutor conceded the display was suggestive, is a classic sign that the suggestion may have produced the memory rather than refreshed it. There are no strong countervailing indicators: the encounter lasted about twenty seconds, but her original description lacked the detail she later claimed to remember, and she expressed only that she "thought so." Therefore, the identification lacks sufficient indicia of reliability, and suppression is proper.
The first wrong answer claims a one-on-one display is no more suggestive than a properly constructed array—false, because a single photograph pressures the witness to choose the only person shown. The second wrong answer argues due process never authorizes pretrial exclusion and reliability is only a jury question—incorrect, because courts must exclude identifications that are both unnecessarily suggestive and unreliable. The third wrong answer asserts suggestive procedures are unconstitutional per se—also incorrect; the Supreme Court rejected a per se rule and requires consideration of independent reliability.
Study tip: memorize the reliability factors—opportunity to view, attention, description accuracy, certainty, and time elapsed—and always ask whether the witness's recollection existed before the suggestive procedure.
- Which of the following is the best due-process ruling?
Answer: Admit the identification, because the showup was conducted promptly near the scene and was a permissible field showup, not an unnecessarily suggestive procedure.
When you see an identification issue, think due process: an identification is suppressed only if the police used an unnecessarily suggestive procedure that created a substantial likelihood of misidentification. A prompt, on-scene showup is generally permissible because its immediacy serves the need for quick confirmation while the witness's memory is fresh and the suspect is not yet formally charged.
Here, the officer stopped the defendant six blocks away within fifteen minutes and brought the victim to view him immediately. That is a classic field showup: suggestive because there is only one person, but not unnecessarily suggestive given the timing and location. The victim's certainty, based on seeing the robber, makes the identification reliable. Therefore, the best ruling is to admit it as a permissible prompt showup.
The first wrong answer, suppressing because a one-person showup is inherently suggestive and counsel was absent, fails because pre-charge showups do not trigger the right to counsel, and suggestiveness alone does not violate due process. The second wrong answer, suppressing because the victim knew the police suspected the defendant, overstates the impact of that knowledge; it does not, by itself, make the identification unreliable. The last wrong answer, saying a showup is always permissible when there is one eyewitness, is too broad; emergency and proximity matter.
On exam day, ask two things: Was the procedure unnecessarily suggestive? If so, was the identification nonetheless reliable? Prompt near-scene showups are usually admissible.
- The defense moves to suppress the clerk's identification testimony. Which issue is most significant in evaluating that motion?
Answer: Whether the pretrial viewing was so impermissibly suggestive that it created a very substantial likelihood of irreparable misidentification
Eyewitness identification testimony triggers due process scrutiny. When you see a one-person showup — defendant alone, handcuffed, illuminated in a police car—think "suggestive." But a showup is not automatically invalid; the question is whether it was so impermissibly suggestive that it created a very substantial likelihood of irreparable misidentification. Here the clerk first said "That could be him," then the officer pressure to "take another look" produced a confident "Yes, that is him." That sequence makes reliability the central issue, considering factors like opportunity-to-view, degree of attention, accuracy of description, and level of certainty. So the most significant issue is whether the pretrial viewing was so impermissibly suggestive that it created a very substantial likelihood of irreparable misidentification.
The Miranda choice misses the mark because Miranda applies only to custodial interrogation; a identification viewing is not interrogation, even though the defendant was handcuffed. The hearsay choice misunderstands evidence law: the clerk testified at trial, so her in-court identification is not hearsay, and prior identifications by a testifying witness are generally admissible. The probable-cause choice isa distractor: probable cause affects whether the arrest was lawful, but it is not the primary test for suppressing identification testimony; the reliability of the identification, not the arrest's validity, controls.
useful takeaway: when identification evidence is challenged, immediately apply the two-step due process analysis — was the procedure impermissibly suggestive, and if so, did it create a substantial likelihood of irreparable misidentificationunctuation corrected.
- How should the court rule?
Answer: Deny the motion, because the clerk had a lengthy, well-lit opportunity to view the robber and was immediately certain, so the identification was reliable despite the unnecessarily suggestive single-photo display.
When you see a suggestive identification procedure, don't assume automatic exclusion. The due process test is two-step: was the procedure unnecessarily suggestive? If so, does the totality of circumstances still show reliability? Suggestiveness alone is not enough. Courts apply the Manson factors: opportunity to view, degree of attention, accuracy of prior description, level of certainty, and time elapsed.
Here, the single-photo display was unnecessarily suggestive, and no emergency justified it. But the clerk viewed the robber for almost a minute from five feet away under a bright light, with the mask pulled below his chin, and immediately said yes with certainty. Those strong reliability factors mean there was no substantial likelihood of irreparable misidentification, so both the pretrial and in-court identifications may come in. The answer denying the motion because of the lengthy, well-lit opportunity and immediate certainty is therefore correct.
Review the wrong choices. The claim that reliability is always a jury question and courts may never exclude evidence for suggestive procedures is false: courts must exclude if the procedure was unnecessarily suggestive and reliability is lacking. The claim that any single-photo display must be excluded without further inquiry is also wrong—the Supreme Court rejected that per se rule. Finally, the choice to grant the motion based on the vague description and lack of justification overstates those weaknesses; the strong viewing conditions and certainty outweigh them under the totality test.
Study tip: on eyewitness identification questions, always run the full two-step inquiry. A suggestive procedure starts the analysis, but independent reliability can still make the identification admissible.
- Under federal due-process law, how should the court rule?
Answer: Suppress the identification, because the showup was unnecessarily suggestive and the identification was unreliable given the generic description, the uncertainty, and the ten-day delay.
Whenever you see an identification question under federal due process, the test is twofold: Was the procedure unnecessarily suggestive? If yes, is the identification nevertheless reliable under the totality of the circumstances? This question sets up both prongs.
Here, the one-person showup was unnecessarily suggestive because police had no emergency—the defendant was already in custody and the detective simply brought the eyewitness to him. A lone suspect presented as "the burglar" implies guilt. The reliability check then fails: the eyewitness gave only a generic description ("white man, medium build"), admitted uncertainty, and ten days had passed since the burglary. Those factors make the identification unreliable, so suppression is proper.
The choice saying the showup is not suggestive unless police call the person a suspect is wrong—the inherent suggestiveness of showing one person, not specific words, triggers scrutiny. The choice saying uncertainty goes only to weight misses that under due-process law reliability is an admissibility question, not just a jury issue. And the claim that any police-station showup after 48 hours is automatically unconstitutionally suggestive invents a bright-line rule that does not exist; the 48-hour benchmark relates to probable-cause hearings, not identification procedures.
For the exam, remember: suggestiveness is the gate, reliability is the key. Ask whether police had good reason to use a showup, then weigh the witness's description, certainty, and time lapse.
- Which of the following is the best ruling on the defendant's due-process claim?
Answer: Do not suppress on due-process grounds, because the lineup was not unnecessarily suggestive; the absence of counsel is a separate Sixth Amendment issue, not a due-process issue.
A due-process challenge to an identification asks one central question: was the procedure unnecessarily suggestive and substantially likely to produce a mistaken identification? Keep that standard separate from the Sixth Amendment right to counsel.
Here the lineup was fairly constructed—participants similar, no suggestive remarks—so it did not deny due process. The victim's identification therefore should not be suppressed on that ground. The absence of counsel is significant, but it raises a different issue: after indictment, a lineup is a critical stage, so the defendant may have a valid Sixth Amendment claim. That claim, however, was not made; the motion asserted only due process, and a due-process violation does not automatically follow from counsel's absence.
The choice "suppress because a post-indictment lineup without counsel is presumptively suggestive" is wrong because no such presumption exists; due process turns on actual suggestiveness, not on counsel's absence. "Suppress because the Sixth Amendment right had attached and counsel's absence requires exclusion" identifies a possible claim, but it fails as a ruling on the due-process motion—counsel's absence is not a due-process violation, and the court should not grant relief on an unasserted theory. "Do not suppress because the Sixth Amendment right does not apply to lineups after indictment" is wrong because that right does apply to post-indictment lineups; the reason for not suppressing on this motion is the limited due-process argument.
On exam day, separate the doctrines: due process = unnecessary suggestiveness; Sixth Amendment = counsel at post-indictment critical stages. If the defendant argues only one, rule only on that claim.
- Should the court grant Marcus's motion to suppress the identification?
Answer: Deny the motion. The showup was prompt and at the scene while Marcus was in lawful custody, so it was practically necessary and not unnecessarily suggestive; Marcus can challenge the identification's reliability at trial.
When a defendant moves to suppress an eyewitness identification, the due-process question is not whether the showup was suggestive—it almost always is—but whether it was unnecessarily suggestive. Under State v. Ellison, a prompt, on-scene showup shortly after the crime is generally necessary: it permits immediate release of an innocent suspect, preserves fresh memory, and reduces mistaken arrests. Here, Reed detained Marcus eight blocks away at 12:05, only eighteen minutes after the 11:47 robbery, and drove him back to the store. That is practical necessity. Handcuffs and lawful custody do not add impermissible suggestiveness when the showup is prompt and custody is lawful. So deny suppression; Marcus can challenge the identification's reliability at trial.
The first wrong answer says suppress because probable cause already existed. But probable cause does not eliminate the need for prompt confirmation; police may have probable cause and still need to avoid arresting the wrong person. The second wrong answer says handcuffs in a patrol car added suggestiveness. Ellison expressly rejects that when custody is lawful and the showup is prompt. The third wrong answer says the court need not decide suggestiveness because the identification was independently reliable. That skips the required first step: only if the procedure was unnecessarily suggestive does the court assess reliability under the totality of circumstances.
Study tip: For showups, ask two questions—was there practical necessity for the immediate one-on-one procedure, and did police add suggestiveness beyond the inherent format? If both favor admission, deny suppression; reliability is for trial.
- Under due-process law, should the court suppress the bedside identification?
Answer: No, because the showup was justified by the clerk's imminent surgery and occurred shortly after the crime, so it was not unnecessarily suggestive.
Whenever you see a bedside or showup identification, the due-process question is not whether the procedure was suggestive—most showups are—but whether it was unnecessarily suggestive and created a substantial risk of misidentification. Courts balance the need for the procedure against its suggestiveness.
Here, the clerk was about to undergo emergency surgery and would be unavailable for days, while the defendant had been arrested only minutes after the crime. That made the prompt one-person showup a justified, necessary procedure, not an unnecessarily suggestive one. The clerk's ten-second look and immediate "yes" also support reliability, so the motion should be denied.
The first wrong answer claims the showup should be suppressed because it was inherently suggestive and the handcuffs signaled guilt. But inherent suggestiveness alone is not enough; the urgent circumstances justified it. The second wrong answer invokes a right to counsel at the showup because the defendant was in custody. That confuses the Sixth Amendment right to counsel, which attaches only after formal charges, with police-custody procedure—so it does not apply here. The third wrong answer says a hospital identification is admissible whenever the victim is the only eyewitness. That is too absolute; even a hospital ID can be suppressed if it is unnecessarily suggestive and unreliable.
Study tip: whenever you see an identification challenge, ask two questions—was the procedure unnecessarily suggestive, and was the identification reliable despite the suggestiveness? Exigent circumstances like imminent surgery make showups permissible.
- The defendant moves to suppress the second, double-blind lineup identification. How should the court rule?
Answer: Admit the second identification. Because the court found an independent source by clear and convincing evidence and the later procedure was double-blind and sequential, the later identification is not tainted by the earlier showup.
Whenever you see a challenged identification after an unnecessarily suggestive procedure, don't assume automatic exclusion. The key is whether the later identification has an independent source, proven by clear and convincing evidence. Here, the court already found that the clerk's identification came from her original three-minute, well-lit view, not from the showup. That independent source, plus the later double-blind sequential lineup, means the second identification is not tainted. So the court should admit it.
The choice saying "once the first showup is found unnecessarily suggestive, every later identification is irrebuttably presumed tainted" is wrong because the law rejects an irrebuttable presumption; taint can be overcome. The choice claiming "a later neutral procedure cannot cure an earlier due process violation because the witness will inevitably compare" is also wrong—neutral procedures are expressly one way to establish an independent source, and no rule presumes inevitable comparison. The choice saying "the due process exclusionary rule applies only to the initial suggestive procedure; later identifications are automatically admissible" gets the law backwards: later identifications may be suppressed if they derive from the earlier violation, but they are not automatically admissible.
Remember the pattern: an unnecessarily suggestive showup triggers close scrutiny, but the prosecution can purge the taint by showing an independent source—especially through a strong original view or a subsequent neutral lineup. Look for that court finding and decide accordingly.
- Should the court grant the motion?
Answer: No, because the Sixth Amendment right to counsel does not apply to photo displays, and the identification is sufficiently reliable to satisfy due process despite the suggestive array.
Whenever you see an identification question, think in terms of two separate doctrines: the Sixth Amendment right to counsel and due process. The Sixth Amendment only requires counsel at physical lineups after adversarial proceedings begin—not at photographic displays. Due process is more flexible: an unnecessarily suggestive procedure does not automatically sink an identification;photo can still be admitted if it is reliable under the totality of circumstances.
Here, though the prosecutor conceded the array was unnecessarily suggestive, the due process analysis does not stop there. The reliability factors under Manson v. Brathwaite favor admission:the witness viewed the robber from about two feet in a well-lighted store for roughly a minute, accurately described the scar under his left eye, selected D immediately, and said she was 100 percent certain. Because the identification was reliable, neither the photo identification nor the later in-court identification must be suppressed on due process grounds. And because counsel was not required for a photo display, there is no Sixth Amendment violation either.
The wrong answers show common traps. One says counsel applies to all post-indictment identification procedures;that is too broad—photo arrays are not critical stages under the Sixth Amendment. Another says an unnecessarily suggestive procedure results in automatic exclusion;that ignores the reliability-centered due process test. And one says due process applies only to physical lineups, not photo arrays—that is backwards; due process review extends to photographic identifications too.
Remember: Sixth Amendment = physical lineups; due process = suggestiveness plus reliability; photo arrays = no counsel, but still reviewable for due process.
- Which of the following is the correct due-process rule for the in-court identification?
Answer: The in-court identification is admissible if the prosecution proves by clear and convincing evidence that it is based on an independent source and is therefore reliable.
This question tests the due-process framework governing identifications after an unnecessarily suggestive pretrial procedure. When a showup is found suggestive and the out-of-court ID unreliable, the issue shifts to whether a later in-court identification has an independent source—if it is based on the witness's own memory of the crime, not acting on the tainted procedure.
The prosecution may still introduce the in-court identification if it proves by clear and convincing evidence that the identification rests on an independent source–here, the witness's clear recollection of the attacker's voice–and thus is reliable. That "independent source" showing satisfies due process despite the earlier suggestive showup.
The cross-examination answer misses the point: letting the jury sort out reliability is not enough because the suggestive procedure could create a risk of irreparable misidentification that due process does not protect cross-examination can correct. The answer claiming all later identifications are automatically inadmissible is too absolute; an independent source can overcome the taint. And the answer resting on the prior out-of-court unreliability conflates two rulings: the out-of-court ID may be barred, but the in-court identification may still survive if independently sourced.
Study takeaway: whenever a suggestive identification is followed by an in-court ID, ask immediately "independent source?" Factors include opportunity to observe, degree of attention, accuracy of description, and elapsed time–or, as here, distinct voice recognition. The prosecution carries the burden, and the standard is clear and convincing evidence.
- Which of the following is the correct due-process analysis?
Answer: The later identification must be suppressed because the single-photo display was unnecessarily suggestive and the witness's prior failure to identify and uncertain response show unreliability.
When a due-process challenge targets eyewitness identification, the key question is not merely whether the procedure was suggestive—it is whether it was unnecessarily suggestive and, if so, whether the identification is still reliable under the totality of circumstances. Here, the detective showed the defendant's photo alone after the witness already failed to pick anyone from a fair array, and added "We have reason to think this is him." That single-photo display plus the suggestive comment is exactly the kind of procedure that creates a substantial risk of misidentification.
The suppression is correct because the procedure was both unnecessary and suggestive, and the reliability factors cut against admission: the witness initially said none of the six photos was the man, then gave only a tentative "Maybe—the eyes look right." That prior failure and uncertain response show the identification was unreliable, not merely impeachable.
The wrong answers miss this. Saying the identification is admissible because reflection may improve reliability ignores that the suggestive procedure, not reflection, produced the "maybe." Saying the prior failure goes only to weight confuses impeachment with the due-process admissibility bar: unreliable identifications can be excluded entirely. And saying police may never show a photo after an array is too rigid—the law forbids unnecessarily suggestive procedures, not all follow-ups.
On exam day, remember the two-step due-process test: was the procedure unnecessarily suggestive, and is the identification nonetheless reliable? If the answer to the first is yes and the reliability factors are weak, suppression is the likely outcome.
- Which of the following facts, if established, would most seriously undermine the prosecution's ability to admit the first photo-array identification?
Answer: The witness saw the shooter for only an instant, at night, from a moving vehicle.
When you see a challenge to a pretrial photo-array identification, the key is the due-process test: was the procedure unnecessarily suggestive and, if so, is the identification nonetheless reliable? Here, the first array was arguably suggestive because the defendant's photo was the only one matching the witness's initial scar description. So the real battleground becomes reliability. The fact that the witness saw the shooter only an instant, at night, from a moving vehicle goes straight to the reliability factors — especially opportunity to view. Darkness, speed, and fleeting glimpse all make it much harder for the prosecution to show the identification was reliable, which would seriously undermine admitting that first photo-array identification.
The second array's use of more appropriate fillers doesn't undermine the first; it may show better procedures later, but it doesn't retroactively prove the first was unfair or unreliable — if anything, it shows the witness picked the defendant again under better conditions. A detailed description given before the first array actually helps the prosecution: it suggests the witness could observe and retain specific features, making the identification more trustworthy. Likewise, the fact that the first array was administered by a detective who didn't know which photo was the defendant's is a double-blind safeguard, which reduces suggestiveness and supports admissibility.
So when you see an identification question, focus on how each fact affects the totality-of-circumstances reliability factors — especially opportunity to view, attention, description, certainty, and time.
- Should the court grant Jackson's motion to suppress?
Answer: Deny the motion. Because the viewing was not arranged by police and Bell neither knew nor had reason to know Samuels would see Jackson, the due process reliability test is not triggered; Samuels's identification may be challenged through cross-examination.
Whenever you see a motion to suppress an identification, the key due-process question is whether the police created the suggestive encounter. Under People v. Moreau, a reliability hearing is required only when the suggestive procedure was arranged by law enforcement—not for a spontaneous viewing the police did not purposely arrange and had no reason to anticipate.
Here, deny the motion. Officer Bell did not intend to show Jackson to Samuels, did not know Samuels was in the waiting room, and had no reason to know any witness was there. Because the police neither arranged the confrontation nor knew it would occur, due process is not triggered. Samuels's identification is admissible, and Jackson can attack its reliability on cross-examination.
The first wrong answer says the motion should be granted because custody alone is inherently suggestive. That misstates the rule: handcuffs and custody may affect weight, but they do not automatically make an identification a due-process violation. The next wrong answer claims Bell "created" the encounter by walking past the waiting room, requiring clear-and-convincing proof of independent reliability. The flaw is that Bell lacked knowledge or reason to know a witness was there, so this was not a police-arranged procedure requiring heightened proof. The final wrong answer asserts that probable cause and lawful custody make a victim's identification presumptively reliable. Probable cause is irrelevant to the due-process reliability inquiry; custody does not create a presumption of reliability.
Study tip: always ask, "Did the police purposely arrange the viewing, or know/ have reason to know it would happen?" If no, the reliability challenge belongs at trial, not suppression.
