Bar Exam (Uniform) Quiz: Identification Procedures

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Identification ProceduresQuestion 1 of 20

Two witnesses, a husband and wife, observed a man fleeing from a burglary. Police arrested a suspect and brought both witnesses to the police station to view a lineup. They were placed in the same viewing room. The husband immediately said, "That's him, Number 3!" The wife, who had been silent, then also identified Number 3. The defendant, who was in position 3, moves to suppress the wife's identification.

What is the defendant's best argument for suppressing the wife's identification, even if the lineup composition itself was fair? Select one.

Allowing co-witnesses to be in the same room is a per se violation of the defendant's Sixth Amendment right to counsel.

The police were required to obtain a waiver from the wife confirming that she would not be influenced by her husband.

The wife's testimony would be inadmissible hearsay because it is merely a repetition of her husband's out-of-court statement.

The wife's identification is inadmissible as it is tainted by the suggestive influence of her husband's statement.

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Bar Exam (Uniform) Quiz

Bar Exam (Uniform) Quiz: Identification Procedures

Practice Identification Procedures in Bar Exam (Uniform) with focused quiz questions that help you check what you know, review explanations, and build confidence with test-style prompts.

What this quiz covers

This quiz focuses on Identification Procedures, giving you a quick way to practice the rules, question types, and explanations that matter most for Bar Exam (Uniform).

How to use this quiz

Try each quiz question before looking at the correct answer. Use the explanations to review missed ideas, then come back to similar questions until the pattern feels familiar.

All questions

Question 1

What is the defendant's best argument for suppressing the wife's identification, even if the lineup composition itself was fair? Select one.

Allowing co-witnesses to be in the same room is a per se violation of the defendant's Sixth Amendment right to counsel.
The police were required to obtain a waiver from the wife confirming that she would not be influenced by her husband.
The wife's testimony would be inadmissible hearsay because it is merely a repetition of her husband's out-of-court statement.
The wife's identification is inadmissible as it is tainted by the suggestive influence of her husband's statement. (correct answer)

Explanation: When you encounter lineup identification questions, focus on whether police procedures were unnecessarily suggestive and likely to lead to misidentification. Courts scrutinize identification procedures to protect defendants' due process rights under the Fourteenth Amendment. The correct answer is D because the wife's identification lacks reliability due to suggestive circumstances. When the husband immediately announced his identification while both witnesses were in the same room, this created an impermissibly suggestive situation. The wife's subsequent identification of the same person appears tainted by her husband's influence rather than her independent recollection. Courts will suppress identifications when police procedures are unnecessarily suggestive and create a substantial likelihood of misidentification. Answer A is wrong because there's no per se Sixth Amendment violation for co-witnesses viewing lineups together. The Sixth Amendment right to counsel applies to lineups, but the co-witness issue is analyzed under due process standards. Answer B is incorrect because police have no duty to obtain formal waivers about witness influence. While separating witnesses is good practice, the lack of a waiver isn't the legal standard courts apply. Answer C misapplies hearsay rules. The wife's identification would be her own testimony about what she observed, not a repetition of her husband's statement. Hearsay rules govern out-of-court statements offered for their truth, not in-court identifications. Remember: In identification cases, look for unnecessarily suggestive police procedures that compromise reliability. The key question is whether the circumstances created a substantial likelihood of misidentification, not whether specific protocols were followed.

Question 2

A defendant was subjected to a lineup that violated his Sixth Amendment right to counsel. During that lineup, he was identified by Witness A. Based on that identification, police investigated the defendant further and located Witness B, who had not previously come forward. Witness B independently and positively identified the defendant in a constitutionally valid photo array. The defendant's attorney moves to suppress Witness B's identification as fruit of the poisonous tree, arguing that Witness B would never have been found but for the initial illegal lineup.

How should the court rule on the motion to suppress Witness B's identification? Select one.

Grant the motion, because Witness B was discovered as a direct result of the Sixth Amendment violation.
Grant the motion, because the taint of the initial illegal lineup cannot be purged by a subsequent valid procedure.
Deny the motion, because the exclusionary rule is less likely to be applied to the testimony of a live witness. (correct answer)
Deny the motion, because Witness B's identification in the valid photo array constitutes an independent source.

Explanation: The correct answer is C. While the 'fruit of the poisonous tree' doctrine applies to evidence derived from constitutional violations, the Supreme Court has indicated that it is reluctant to apply the doctrine to exclude the testimony of a live witness. The reasoning is that a witness's testimony is a product of their own free will and is not as easily 'tainted' as physical evidence. The connection between the illegal police conduct and the witness's testimony is considered more attenuated. A is incorrect because the 'but-for' connection is not sufficient to suppress live witness testimony. B is incorrect because the taint can be purged, especially in the context of a live witness. D is incorrect because the 'independent source' doctrine refers to a basis for the identification that is independent of the illegal procedure (e.g., the witness's memory from the crime scene), not a subsequent valid procedure.

Question 3

What is the defendant's best argument for suppressing the wife's identification, even if the lineup composition itself was fair? Select one.

Allowing co-witnesses to be in the same room is a per se violation of the defendant's Sixth Amendment right to counsel.
The police were required to obtain a waiver from the wife confirming that she would not be influenced by her husband.
The wife's testimony would be inadmissible hearsay because it is merely a repetition of her husband's out-of-court statement.
The wife's identification is inadmissible as it is tainted by the suggestive influence of her husband's statement. (correct answer)

Question 4

Minutes after a purse snatching, police detained a man matching the suspect's description two blocks from the crime scene. The victim had described the snatcher as wearing a green jacket and jeans. The police brought the victim to the location where the man was being held. The man, who was handcuffed and standing next to a police car, was the only person there not in a police uniform. The victim immediately identified him as the person who stole her purse. The man had not yet been charged with a crime.

The defendant moves to suppress the identification, arguing the showup was impermissibly suggestive. What is the prosecution's best argument for admissibility? Select one.

The procedure was not suggestive because the defendant matched the description provided by the victim.
The defendant's Sixth Amendment rights were not violated because the showup occurred before formal charges were filed.
The showup, while suggestive, was necessary to allow for a prompt identification while the witness's memory was fresh. (correct answer)
The defendant had no expectation of privacy while standing on a public street, so the identification was permissible.

Explanation: The correct answer is C. One-on-one showups are inherently suggestive. However, they are often permissible under the Due Process Clause if they are necessary under the circumstances. One recognized necessity is the need for a prompt identification shortly after the crime has been committed. This allows police to quickly determine whether they have the right person and, if not, to continue the search while the trail is still fresh. It also capitalizes on the freshness of the witness's memory. A is incorrect because matching the description doesn't make the procedure non-suggestive; being handcuffed and next to a police car is highly suggestive. B is a correct statement of law regarding the Sixth Amendment but does not address the defendant's due process claim. D is irrelevant to the analysis of an identification procedure's constitutionality.

Question 5

A witness viewed a six-person lineup that was conducted in full compliance with procedural rules. The witness appeared hesitant and, after several minutes, tentatively identified the defendant. As the detective was escorting the witness out, he said, "Good job. We were pretty sure he was the one." At trial, the witness testifies with a high degree of certainty that the defendant was the perpetrator.

The defense moves to strike the witness's in-court identification. What is the defendant's strongest argument that the identification is unreliable? Select one.

The lineup itself was invalid because the witness's initial identification was not sufficiently certain.
The detective's post-identification confirming feedback artificially inflated the witness's confidence, violating due process. (correct answer)
The detective's comment constitutes an inadmissible hearsay statement that bolstered the witness's testimony.
The Sixth Amendment requires that defense counsel be present during any post-lineup communications between police and witnesses.

Explanation: The correct answer is B. The due process analysis of reliability considers the totality of the circumstances. Even if the initial lineup procedure was not suggestive, post-identification feedback from law enforcement can corrupt the reliability of a witness's memory and artificially inflate their confidence. This feedback introduces a new suggestive element that can cause the witness's memory of the event to become intertwined with the confirming statement, undermining the reliability of a subsequent in-court identification. A is incorrect because a witness's level of certainty at the time of the lineup is a factor in assessing reliability, but a tentative identification does not automatically invalidate the procedure. C is incorrect because the statement is not being offered for its truth but to show its effect on the witness; it's a due process issue, not a hearsay issue. D is incorrect as the Sixth Amendment right to counsel does not extend to post-lineup interviews with witnesses.

Question 6

A bank was robbed by a person wearing a mask that covered the lower half of their face. A teller told police she was focused on the robber's distinctive, piercing blue eyes. The bank's security camera footage was blurry. Two weeks later, police arrested a suspect and placed him in a lineup. The suspect has piercing blue eyes. The other five participants in the lineup had brown or green eyes. The teller immediately identified the suspect.

The defendant files a motion to suppress the teller's identification. Which of the following provides the strongest grounds for the motion? Select one.

The lineup violated due process because it was unnecessarily suggestive by singling out the defendant based on a key feature. (correct answer)
The teller's focus on the robber's eyes was insufficient to form a reliable memory, making any identification inadmissible.
The lineup violated the Sixth Amendment because police should have obtained counsel for the defendant before the procedure.
The existence of blurry security footage means that any human identification is inherently unreliable and should be excluded.

Explanation: The correct answer is A. The due process standard for identification procedures prohibits those that are unnecessarily suggestive and create a substantial likelihood of misidentification. When a witness has identified a very specific, distinctive feature, and the suspect is the only person in the lineup who possesses that feature, the procedure is considered highly suggestive. It effectively points the witness to the suspect. B addresses the weight of the evidence, not its constitutional admissibility. C is incorrect as the facts do not state whether the defendant was indicted, and the right to counsel may not have attached. D is incorrect; the quality of other evidence does not render eyewitness testimony per se inadmissible.

Question 7

A defendant is on trial for making threatening phone calls. The prosecution's key witness is the victim who received the calls. To establish the defendant's identity, the prosecutor, in open court, asks the victim to listen to a recording of the defendant's voice from a police interview and asks if she recognizes it. The defendant's counsel had previously filed a motion to suppress any pre-trial voice identification, which was granted because the police had conducted an unnecessarily suggestive, single-voice showup. The prosecutor argues this in-court procedure is different.

The defense objects to this in-court voice identification procedure. What is the strongest basis for the objection? Select one.

The procedure violates the defendant's Fifth Amendment privilege against self-incrimination by using his voice against him.
The procedure violates the defendant's Sixth Amendment right to counsel because counsel was not present when the recording was made.
The procedure is impermissibly suggestive and, absent an independent source for the voice identification, violates due process. (correct answer)
The procedure is inadmissible hearsay because the recording is an out-of-court statement offered to prove the identity of the caller.

Explanation: The correct answer is C. The principles of due process that apply to visual identifications also apply to voice identifications. An in-court identification procedure can itself be challenged as impermissibly suggestive. Having a witness listen to a single voice sample and identify the defendant in court is analogous to a one-person showup. Such a procedure is highly suggestive. The identification will only be admissible if the prosecution can show, by clear and convincing evidence, that the witness has an independent basis for identifying the voice from the original threatening calls, untainted by the previous illegal showup. A is incorrect because a person's voice is a physical characteristic, not testimonial communication, and compelling a voice exemplar does not violate the Fifth Amendment. B is incorrect because there is generally no right to counsel when a voice recording is made for identification purposes. D is incorrect because the voice is not being offered for its truth, but as a physical characteristic for identification, so it is not hearsay.

Question 8

A victim was assaulted in her home. Ten days later, police arrested a suspect based on an anonymous tip. The police then brought the victim to the station to identify the suspect. The suspect was brought into a room by himself, and the victim viewed him through a one-way mirror. The victim identified the suspect as her attacker. The suspect had not yet been formally charged.

The defendant moves to suppress the identification. What is the most likely result? Select one.

The motion will be denied because the identification occurred before the Sixth Amendment right to counsel had attached.
The motion will be denied because the victim's identification was certain and unequivocal, outweighing any suggestiveness.
The motion will be granted because the station-house showup was unnecessarily suggestive and not justified by any exigent circumstances. (correct answer)
The motion will be granted because all one-on-one showups are per se violations of the Due Process Clause.

Explanation: The correct answer is C. A one-on-one showup is inherently suggestive. While such procedures are sometimes justified by necessity (e.g., a prompt identification near the crime scene), that justification does not apply here. The identification took place ten days after the crime at the police station. There was no exigency that would prevent the police from conducting a less suggestive procedure, such as a multi-person lineup or a photo array. Because the showup was unnecessarily suggestive, it violated the defendant's due process rights. A is a correct statement about the Sixth Amendment, but the motion is based on due process, not the right to counsel. B is incorrect because reliability is only considered after determining the procedure was unnecessarily suggestive, and here there was no necessity. D is incorrect because showups are not a per se violation; they can be justified by necessity.

Question 9

A witness was shown a photo array and identified the defendant. The defense later discovered that the detective administering the array, who knew the defendant was the suspect, had unintentionally provided subtle cues, such as pausing longer on the defendant's photo and nodding slightly when the witness's gaze fell upon it. The defense expert testifies that such cues can influence a witness. The jurisdiction requires 'double-blind' identification procedures (where the administrator does not know who the suspect is), but this was not followed.

The defendant moves to suppress the identification. Which argument provides the strongest basis for suppression under the U.S. Constitution? Select one.

The failure to follow the state's 'double-blind' procedure is a per se violation of the Due Process Clause.
The detective's conduct violated the defendant's Sixth Amendment right to a fair and impartial investigation.
The use of a human administrator instead of a computer for a photo array is inherently unreliable and unconstitutional.
The detective's unintentional cues rendered the procedure unnecessarily suggestive, creating a risk of misidentification. (correct answer)

Explanation: When you encounter identification suppression questions, focus on the constitutional standard for eyewitness identifications: whether the procedure was unnecessarily suggestive and, if so, whether it created a substantial likelihood of irreparable misidentification. The correct answer is D because it directly addresses the constitutional test. The detective's unintentional cues (pausing longer, nodding) made the procedure unnecessarily suggestive by essentially highlighting the defendant's photo. Combined with expert testimony that such cues influence witnesses, this creates the substantial risk of misidentification that violates due process under Manson v. Brathwaite. Answer A is wrong because violating state procedural rules doesn't automatically create a constitutional violation. The Due Process Clause requires more than just failure to follow local protocols—it requires actual suggestiveness that risks misidentification. Answer B misidentifies the constitutional basis. The Sixth Amendment right to counsel applies to lineups conducted after formal charges are filed, but photo arrays shown before charging typically fall under due process analysis, not Sixth Amendment protections. Additionally, there's no specific Sixth Amendment right to "fair and impartial investigation." Answer C is incorrect because there's nothing inherently unconstitutional about human administrators conducting photo arrays. The Constitution doesn't mandate specific technological methods—it only prohibits unnecessarily suggestive procedures. Study tip: For identification suppression issues, always apply the two-part test: (1) Was the procedure unnecessarily suggestive? (2) Did it create substantial likelihood of misidentification? Don't get distracted by state procedural violations or technology preferences—focus on constitutional due process standards.

Question 10

A witness to a street mugging told police the perpetrator was a tall man wearing a distinctive red baseball cap. Police later arrested a suspect who matched the general description. For a photo array, they used a recent booking photo of the suspect in which he was wearing a red baseball cap. The other five photos in the array were of men of similar appearance, but none were wearing a hat. The witness selected the suspect's photo. The suspect had not yet been charged.

You are representing the suspect and are preparing a motion to suppress the identification. What is your strongest argument? Select one.

The identification should be suppressed because the suspect was denied his Sixth Amendment right to counsel at the photo array.
The identification should be suppressed because the photo array was unnecessarily suggestive, creating a substantial likelihood of misidentification. (correct answer)
The identification should be suppressed because using the suspect's booking photo violated his Fifth Amendment privilege against self-incrimination.
The identification should be suppressed because the police failed to include other photos of men wearing red baseball caps, violating procedural fairness rules.

Explanation: The correct answer is B. An identification procedure violates due process if it is (1) unnecessarily suggestive and (2) there is a substantial likelihood of irreparable misidentification. Here, the suspect was the only person in the array wearing the distinctive red cap mentioned by the witness. This is a classic example of an unnecessarily suggestive procedure, as it singles out the suspect. The next step would be to analyze reliability, but this is the defendant's strongest initial argument. A is incorrect because there is no right to counsel at a photo array, especially a pre-indictment one. C is incorrect because a person's physical appearance or clothing is not testimonial and is not protected by the Fifth Amendment. D is too specific; while the failure to include others in caps is the reason it's suggestive, the legal standard is the broader due process test stated in B.

Question 11

During a post-indictment lineup, a defendant is forced to put on a jacket found at the crime scene and say the words, "Give me the money." The defendant's attorney objects, arguing this violates the defendant's constitutional rights. The witness then identifies the defendant.

The attorney moves to suppress the identification. Which of the following statements most accurately describes the constitutional issues? Select one.

The procedure was permissible because being required to wear clothing and speak for identification purposes does not violate the Fifth Amendment. (correct answer)
The procedure violated the Fifth Amendment because it compelled the defendant to provide self-incriminating testimonial evidence.
The procedure violated the Fourth Amendment as an unreasonable search of the defendant's person without a warrant.
The procedure was a per se violation of due process because it required the defendant to actively participate in the identification.

Explanation: When you encounter lineup identification questions, focus on the distinction between testimonial evidence (protected by the Fifth Amendment) and physical evidence that can be compelled for identification purposes. Answer A is correct because requiring a defendant to wear clothing and speak specific words during a lineup constitutes physical evidence, not testimonial communication. The Supreme Court has consistently held that voice exemplars, handwriting samples, and wearing particular clothing are physical characteristics that can be compelled without violating the Fifth Amendment's protection against self-incrimination. The defendant isn't being forced to reveal knowledge or thoughts—only to display physical and vocal characteristics for identification. Answer B incorrectly characterizes this as testimonial evidence. Speaking words for voice identification purposes doesn't involve the "testimonial" aspect that the Fifth Amendment protects—the defendant isn't admitting guilt or revealing incriminating knowledge, just demonstrating vocal characteristics. Answer C misapplies the Fourth Amendment, which protects against unreasonable searches and seizures. Post-indictment lineups with proper procedures don't constitute searches requiring warrants, and having a defendant wear clothing or speak doesn't involve searching their person. Answer D incorrectly suggests that requiring active participation automatically violates due process. Courts have established that defendants can be required to participate in identification procedures as long as the methods aren't unduly suggestive or fundamentally unfair. Remember this key distinction: the Fifth Amendment protects testimonial communication (revealing thoughts or knowledge), not physical demonstrations of appearance, voice, or other identifying characteristics during properly conducted identification procedures.

Question 12

The defendant files a motion to suppress the teller's identification. Which of the following provides the strongest grounds for the motion? Select one.

The lineup violated due process because it was unnecessarily suggestive by singling out the defendant based on a key feature. (correct answer)
The teller's focus on the robber's eyes was insufficient to form a reliable memory, making any identification inadmissible.
The lineup violated the Sixth Amendment because police should have obtained counsel for the defendant before the procedure.
The existence of blurry security footage means that any human identification is inherently unreliable and should be excluded.

Question 13

The defense objects to this in-court voice identification procedure. What is the strongest basis for the objection? Select one.

The procedure violates the defendant's Fifth Amendment privilege against self-incrimination by using his voice against him.
The procedure violates the defendant's Sixth Amendment right to counsel because counsel was not present when the recording was made.
The procedure is impermissibly suggestive and, absent an independent source for the voice identification, violates due process. (correct answer)
The procedure is inadmissible hearsay because the recording is an out-of-court statement offered to prove the identity of the caller.

Question 14

A woman was robbed at knifepoint in a well-lit parking garage. She gave police a detailed description of her assailant. A month later, after a suspect was indicted for the robbery, a detective visited the woman at her home. He showed her an array of eight photographs, one of which was the defendant. The defendant's attorney was not notified of this procedure. The woman immediately selected the defendant's photograph.

The defendant's attorney moved to suppress the photographic identification. What is the most likely outcome? Select one.

The identification will be suppressed because the defendant was entitled to have counsel present during the post-indictment photo array.
The identification will be suppressed because showing a photo array at a witness's home is an inherently suggestive procedure.
The identification will not be suppressed because the Sixth Amendment right to counsel does not apply to photographic identification procedures. (correct answer)
The identification will not be suppressed, provided the prosecution can prove by a preponderance of the evidence that the procedure was not suggestive.

Explanation: The correct answer is C. The Supreme Court has held that there is no Sixth Amendment right to have counsel present during a photographic identification procedure, regardless of whether it occurs before or after indictment. The reasoning is that a photo array is not a live confrontation where the accused needs a lawyer to observe for fairness in the same way as a corporeal lineup. The defendant can reconstruct the photo array at trial, and the risk of police suggestion is not as high as in a live lineup. A is therefore incorrect. B is incorrect as there is nothing inherently suggestive about conducting a photo identification at a witness's home. D states an incorrect legal standard; the burden is on the defendant to show a procedure was impermissibly suggestive, not on the prosecution to prove it was not.

Question 15

A liquor store was robbed at night. The only witness was a customer who was paying at the counter. The robber wore a hoodie that obscured much of his face, and the customer only saw him for a few seconds. The customer gave a vague description to the police. A week later, police conducted a highly suggestive photo array in which the defendant's picture was noticeably clearer and larger than the others. The customer identified the defendant. The defendant was subsequently indicted.

The court agrees to suppress the out-of-court photo identification as a violation of due process. The prosecutor still wants the customer to identify the defendant at trial. What is the defendant's best argument for suppressing the in-court identification as well? Select one.

The due process violation was so egregious that it requires dismissal of all charges against the defendant.
The witness's limited opportunity to view the robber at the crime scene fails to establish an independent source for an in-court identification. (correct answer)
Any in-court identification is a fruit of the poisonous tree and must be suppressed along with the out-of-court identification.
The Sixth Amendment right to a fair trial would be violated by allowing a witness who participated in an unconstitutional procedure to testify.

Explanation: The correct answer is B. For an in-court identification to be admissible after a tainted out-of-court identification, the prosecution must show an independent source. The defense's best counter-argument is to attack the factors establishing that source. Here, the witness's opportunity to view the perpetrator was poor (short duration, obscured face, nighttime), and the initial description was vague. These facts strongly suggest that the witness's memory is based on the suggestive photo array, not the crime itself, and therefore no independent source exists. A is incorrect because the remedy is suppression of evidence, not dismissal. C uses the 'fruit of the poisonous tree' doctrine, but the 'independent source' doctrine is the specific test applied to in-court identifications. D is too general; the specific legal test is about the independent source, not a general notion of a fair trial.

Question 16

The defendant moves to suppress the identification, arguing the showup was impermissibly suggestive. What is the prosecution's best argument for admissibility? Select one.

The procedure was not suggestive because the defendant matched the description provided by the victim.
The defendant's Sixth Amendment rights were not violated because the showup occurred before formal charges were filed.
The showup, while suggestive, was necessary to allow for a prompt identification while the witness's memory was fresh. (correct answer)
The defendant had no expectation of privacy while standing on a public street, so the identification was permissible.

Question 17

You are representing a client charged with robbery. The victim was shown a photo array a week after the crime and did not identify anyone. Two weeks later, police showed the same victim a second photo array. This array contained a new, clearer photo of your client, but it was the only photo repeated from the first array. This time, the victim identified your client, stating, "His face looks familiar."

You file a motion to suppress the identification. Which of the following is the strongest legal basis for your motion? Select one.

The procedure violated the Double Jeopardy Clause by subjecting the client to a second identification attempt.
The procedure was unnecessarily suggestive because repeating only the suspect's photo in a subsequent array improperly singled him out. (correct answer)
The victim's statement that the client's face looked 'familiar' is not sufficiently certain to be admissible under evidence rules.
The use of a second photo array without counsel present after the client became a formal suspect violated the Sixth Amendment.

Explanation: The correct answer is B. An identification procedure can be deemed unnecessarily suggestive if it creates a situation where the witness's choice is all but suggested by the police. Showing a witness an array where only the suspect's photo is repeated from a prior array is highly suggestive. It encourages the witness to select the familiar face, which may be familiar from the prior photo array rather than from the crime itself. A is incorrect because double jeopardy applies to successive prosecutions, not investigative procedures. C addresses the weight a jury might give the identification, not its constitutional admissibility. D is incorrect because there is no Sixth Amendment right to counsel at a photo array, regardless of the suspect's status.

Question 18

You file a motion to suppress the identification. Which of the following is the strongest legal basis for your motion? Select one.

The procedure violated the Double Jeopardy Clause by subjecting the client to a second identification attempt.
The procedure was unnecessarily suggestive because repeating only the suspect's photo in a subsequent array improperly singled him out. (correct answer)
The victim's statement that the client's face looked 'familiar' is not sufficiently certain to be admissible under evidence rules.
The use of a second photo array without counsel present after the client became a formal suspect violated the Sixth Amendment.

Question 19

Police arrested a suspect in connection with a convenience store robbery that occurred two days earlier. Before the suspect was formally charged, and without providing Miranda warnings, police placed him in a lineup with five other individuals. The suspect requested an attorney, but the police denied his request. The store clerk who witnessed the robbery immediately identified the suspect. The suspect was then formally charged.

The suspect's attorney filed a motion to suppress the pre-trial identification. What is the most likely basis for the court's ruling on the motion? Select one.

The motion will be granted because the suspect was denied his Fifth Amendment right to counsel during a custodial interrogation.
The motion will be denied because the Sixth Amendment right to counsel had not yet attached at the time of the lineup. (correct answer)
The motion will be granted because the failure to provide Miranda warnings before the lineup violated the suspect's rights.
The motion will be denied because a lineup identification is not considered a critical stage of the prosecution.

Explanation: The correct answer is B. The Sixth Amendment right to counsel applies to critical stages of a criminal prosecution that occur after formal adversarial proceedings have been initiated (e.g., after indictment or formal charge). Because the lineup occurred before the suspect was formally charged, his Sixth Amendment right to counsel had not yet attached. A is incorrect because a lineup is not an interrogation for Fifth Amendment purposes; the suspect is not being asked to make testimonial statements. C is incorrect for the same reason; Miranda warnings are required for custodial interrogation, not for identification procedures where the suspect's physical presence is the evidence. D is incorrect because a post-indictment lineup is a critical stage, but this lineup was pre-indictment.

Question 20

A defendant was indicted for kidnapping. His attorney was present for a corporeal lineup. Immediately after the witness viewed the lineup and was taken to a separate room, the police began to question her about her identification. The defendant's attorney asked to be present for this questioning, but the detective refused, stating, "The confrontation is over. Your job is done here."

The defendant's attorney argues that her exclusion from the post-lineup questioning of the witness violated the defendant's Sixth Amendment rights. What is the prosecution's strongest counter-argument? Select one.

The Sixth Amendment right to counsel applies only to the physical confrontation between the witness and the suspect, not to subsequent interviews. (correct answer)
The witness had a right to be interviewed without the presence of defense counsel.
Because the attorney was present during the lineup itself, any potential for suggestion was already observed and can be challenged.
The defendant was not present during the interview, so his right to have counsel present at a confrontation with him was not implicated.

Explanation: This question tests your understanding of the Sixth Amendment right to counsel during critical stages of criminal proceedings, particularly regarding lineups and identifications. The Sixth Amendment guarantees the right to counsel at "critical stages" of prosecution. Courts have established that corporeal lineups are critical stages because they create substantial risk of misidentification that counsel can help prevent or later challenge. However, this right is specifically tied to confrontations between the defendant and witnesses, not to all investigative activities. Answer A correctly identifies the prosecution's strongest argument: the Sixth Amendment right to counsel during lineups applies only to the actual physical confrontation between witness and suspect. Once that confrontation ends, the constitutional requirement for counsel's presence also ends. Post-lineup questioning of the witness doesn't involve a direct confrontation with the defendant, so it falls outside the Sixth Amendment's protection. Answer B is wrong because witnesses don't have constitutional rights that override a defendant's Sixth Amendment protections. Answer C misses the point—while the attorney's presence during the lineup allows observation of suggestive procedures, this doesn't address whether counsel has a right to be present during subsequent witness interviews. Answer D incorrectly focuses on the defendant's physical presence rather than the nature of the proceeding itself. Remember that Sixth Amendment lineup rights are narrow and specific: they protect against suggestive confrontations between defendant and witness, but don't extend to all witness-related investigative activities. Focus on whether the defendant is being directly confronted, not just investigated.