Bar Exam (Next Generation) Quiz: Due Process Implications Related To Identification

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Due Process Implications Related To IdentificationQuestion 1 of 17

During a convenience-store robbery, the robber stood about five feet from the clerk, directly under a bright light, with his mask pulled below his chin for almost a minute while the clerk filled a bag. The clerk later told police only that the robber was 'a Black man, maybe in his thirties.' Three days later, a detective showed the clerk a single photograph of the defendant—the only photo displayed—and asked, 'Is this him?' The clerk said yes immediately and was certain. No emergency or other reason explained why the detective did not use a photo array. The defendant moved to suppress the clerk's pretrial and in-court identifications as violating due process.

How should the court rule?

Deny the motion, because the reliability of an eyewitness identification is always a question for the jury and a court may not exclude evidence merely because the police used a suggestive procedure.

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.

Grant the motion, because the single-photo display was unnecessarily suggestive and any identification produced by such a display must be excluded without further inquiry.

Grant the motion, because the clerk's vague prior description and the lack of any justification for the single-photo display establish a substantial likelihood of irreparable misidentification.

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Bar Exam (Next Generation) Quiz

Bar Exam (Next Generation) Quiz: Due Process Implications Related To Identification

Practice Due Process Implications Related To Identification in Bar Exam (Next Generation) 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 Due Process Implications Related To Identification, giving you a quick way to practice the rules, question types, and explanations that matter most for Bar Exam (Next Generation).

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

How should the court rule?

Deny the motion, because the reliability of an eyewitness identification is always a question for the jury and a court may not exclude evidence merely because the police used a suggestive procedure.
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. (correct answer)
Grant the motion, because the single-photo display was unnecessarily suggestive and any identification produced by such a display must be excluded without further inquiry.
Grant the motion, because the clerk's vague prior description and the lack of any justification for the single-photo display establish a substantial likelihood of irreparable misidentification.

Explanation: 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.

Question 2

Ten days after a residential burglary, police arrested the defendant on an unrelated warrant. Without any emergency, a detective brought the sole eyewitness to the police station and presented the defendant alone in an interview room, asking, 'Is this the burglar?' The eyewitness, who had earlier described the burglar only as 'a white man, medium build,' said, 'I think so, but I'm not sure.' The defendant moved to suppress the identification.

Under federal due-process law, how should the court rule?

Deny the motion, because a one-person showup is not unnecessarily suggestive unless the police tell the witness that the person is a suspect.
Deny the motion, because the eyewitness's uncertainty goes only to the weight of the identification, not its admissibility.
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. (correct answer)
Suppress the identification, because any showup conducted at a police station more than 48 hours after arrest is unconstitutionally suggestive.

Explanation: 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.

Question 3

A store clerk was shot during a robbery and taken to a hospital. Police arrested the defendant nearby minutes later based on a witness description and brought him to the hospital in handcuffs. A doctor said the clerk was alert but was about to undergo emergency surgery and would be unavailable for questioning for several days. The officer took the defendant to the clerk's bedside and asked, 'Is this the man who shot you?' The clerk looked at the defendant for about ten seconds and said yes. The defendant had not yet been charged. The clerk survived and later identified the defendant in court. The defendant moved to suppress the bedside identification as unnecessarily suggestive.

Under due-process law, should the court suppress the bedside identification?

Yes, because a one-person showup is inherently suggestive and the defendant was in handcuffs, signaling to the clerk that police believed he was guilty.
Yes, because the defendant was in custody and therefore had a right to counsel at the showup, and no counsel was present.
No, because the showup was justified by the clerk's imminent surgery and occurred shortly after the crime, so it was not unnecessarily suggestive. (correct answer)
No, because a hospital identification is admissible whenever the victim is the only eyewitness to the crime.

Explanation: 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.

Question 4

At a suppression hearing, the court found that a police showup was unnecessarily suggestive and that the witness's out-of-court identification was unreliable because the witness had seen the attacker only briefly. The prosecution nonetheless seeks to have the witness identify the defendant in court, and the witness testified that she recognized the defendant's voice, which she heard clearly for several minutes during the crime, and that her voice recognition is independent of the showup.

Which of the following is the correct due-process rule for the in-court identification?

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. (correct answer)
The in-court identification is admissible because the witness will be subject to cross-examination, and the jury can decide how much weight to give it.
The in-court identification is inadmissible because the suggestive showup tainted all subsequent identifications by the same witness.
The in-court identification is inadmissible because the witness's out-of-court identification was already found unreliable.

Explanation: 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.

Question 5

After the defendant was indicted, the prosecutor conducted a five-person lineup. The defendant's attorney was not notified and did not attend. The lineup was fairly constructed: all participants were similar in appearance, and no officer said anything to the victim. The defendant moved to suppress the victim's identification, arguing only that conducting a lineup without counsel was so unfair as to deny due process.

Which of the following is the best ruling on the defendant's due-process claim?

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. (correct answer)
Suppress the identification, because a post-indictment lineup without counsel is presumptively suggestive.
Suppress the identification, because the defendant's Sixth Amendment right to counsel had attached and counsel's absence requires exclusion.
Do not suppress, because the Sixth Amendment right to counsel does not apply to lineups after indictment.

Explanation: 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.

Question 6

At 2:00 a.m., an officer handcuffed Devon, placed him in a patrol car, and drove him back to the gas station where a clerk had been robbed about 20 minutes earlier. The clerk was told, 'We caught him,' and then identified Devon. The court later found this one-person showup was unnecessarily suggestive. Three days later, Detective Nguyen conducted a properly administered double-blind sequential lineup of eight people; without any comment, the clerk again identified Devon. At the suppression hearing, the court found that the clerk's identification came from her original three-minute, well-lit view of the robber, not from the showup. Under Commonwealth v. Okafor: 'When a pretrial identification is obtained through an unnecessarily suggestive procedure, a later out-of-court identification is not automatically inadmissible. The court must decide whether the later identification is tainted by the earlier violation. The prosecution must prove by clear and convincing evidence that the later identification has an independent source—such as an untainted opportunity to observe, preexisting familiarity, or a substantially later neutral procedure—and did not derive from the suggestive one. Although a one-person showup calls for close scrutiny, an independent source may still be established.'

The defendant moves to suppress the second, double-blind lineup identification. How should the court rule?

Suppress the second identification. Once the first showup is found unnecessarily suggestive, every later identification by the same witness is irrebuttably presumed tainted and must be excluded.
Suppress the second identification. A later neutral procedure cannot cure an earlier due process violation because the witness will inevitably compare each lineup member to the image of the defendant from the suggestive showup.
Admit the second identification. The due process exclusionary rule applies only to the initial suggestive procedure; once that identification is suppressed, later identifications by the same witness are automatically admissible.
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. (correct answer)

Explanation: 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.

Question 7

At 11:47 p.m., a convenience-store clerk told Officer Reed that a man with a tattoo on his neck had robbed the store at gunpoint and fled east; the clerk had watched him leave through the parking lot under a streetlight. At 12:05 a.m., Reed lawfully detained Marcus, who matched the broadcast description, about eight blocks away. Reed handcuffed Marcus and drove him back to the store; the clerk was still there with another officer. Reed said only to the clerk, "Look at this man." The clerk, who had viewed the robber under a streetlight for about a minute, immediately identified Marcus. Marcus moves to suppress. Under State v. Ellison: "A one-person showup is inherently suggestive, but it is not unnecessarily suggestive if there was sufficient practical necessity for it. A prompt on-scene showup shortly after the crime is generally necessary: it permits the immediate release of an innocent suspect, allows officers to continue the search while the witness's memory is fresh, and reduces the risk of a mistaken arrest. It violates due process only when police had no reasonable need to conduct the immediate showup or used a manner that added suggestiveness beyond the inherent one-on-one format. The fact that the suspect is handcuffed or in a patrol car is not an added suggestiveness when the custody is lawful and the showup is prompt."

Should the court grant Marcus's motion to suppress the identification?

Suppress the identification. A one-person showup is inherently suggestive, and a prompt showup is not necessary if the police already have probable cause to arrest the suspect.
Suppress the identification. Displaying Marcus in handcuffs in a patrol car added a suggestive element beyond the one-on-one format, making the procedure unnecessarily suggestive despite its promptness.
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. (correct answer)
Deny the motion. Because the clerk's pre-showup description and one-minute view establish that the identification was independently reliable, the court need not decide whether the showup was unnecessarily suggestive.

Explanation: 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.

Question 8

A robbery victim described her assailant to police as a tall man in his twenties with short hair and a tattoo on his neck. Two days later, a detective showed her a six-photo array. The defendant's photo was the only one showing a man with a neck tattoo; the other five photos were of clean-shaven men with no visible tattoos, and two were noticeably older. The victim picked the defendant's photo immediately. The defendant was later charged. At a pretrial hearing, the victim testified that she had seen the assailant for several minutes in a well-lit store and told police that she 'would never forget his face.' The defense argues that the photo array was unconstitutionally suggestive.

Which additional fact, if true, would most strongly support the prosecution's position that the identification should not be suppressed?

The victim's description of the assailant's height, hair, and tattoo was provided before she viewed the photo array (correct answer)
The detective who administered the photo array was not present when the victim described the assailant
The victim had previously seen a surveillance photograph of the defendant in a newspaper report about the robbery
The police had enough evidence to arrest the defendant before the photo array was administered

Explanation: 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.

Question 9

Fifteen minutes after a liquor store robbery, an officer stopped the defendant six blocks away because he matched the robber's description. The officer asked the uninjured victim to come to the location, where the defendant was seated in the back of a patrol car. The victim looked through the open door and said, 'That's him.' The defendant had not been charged and no attorney was present. The defendant moved to suppress the identification, arguing that a one-person showup is inherently suggestive.

Which of the following is the best due-process ruling?

Suppress the identification, because a one-person showup is inherently suggestive and the defendant was not given an opportunity to have counsel present.
Suppress the identification, because the victim knew the police suspected the defendant, and that knowledge made the identification unreliable.
Admit the identification, because the showup was conducted promptly near the scene and was a permissible field showup, not an unnecessarily suggestive procedure. (correct answer)
Admit the identification, because a showup is always permissible when the police have only one eyewitness.

Explanation: 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.

Question 10

A witness to a street robbery described the attacker as 'a tall man in a dark hoodie.' Two days later, the witness viewed a fair six-photo array and said, 'None of these is the man.' The next day, a detective showed the witness a single photograph of the defendant and said, 'We have reason to think this is him.' The witness replied, 'Maybe—the eyes look right.' The defendant moved to suppress the later identification and any in-court identification.

Which of the following is the correct due-process analysis?

The later identification is admissible because a witness who has already seen one array may make a more reliable identification after additional reflection.
The later identification is admissible because the witness's prior failure to identify goes only to the weight of the evidence, not its admissibility.
The later identification must be suppressed because police may not show a witness a photo after the witness has already viewed a different array.
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. (correct answer)

Explanation: 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.

Question 11

Detective Alvarez showed a six-photo array to Carmen Ruiz, the cashier robbed at gunpoint. Before displaying it, he said, 'We already have a strong suspect—just see if photo 4 looks familiar.' Ruiz selected photo 4. At a suppression hearing, the court found that the detective's comment made the array suggestive and that a double-blind sequential procedure was practicable, so the procedure was also unnecessary. The court also found: Ruiz saw the robber's face from about four feet away for about two minutes under good lighting; she immediately described his scar, tattoo, and clothing to the first officer; she was 'fairly certain' when she selected photo 4; and the array was shown about 36 hours after the robbery. Under State v. Harmon, 'A pretrial identification violates due process only if the police used an unnecessarily suggestive procedure and, under the totality of the circumstances, that procedure created a substantial likelihood of irreparable misidentification. The court should weigh the witness's opportunity to view, degree of attention, accuracy of any prior description, level of certainty, and the time between the crime and the confrontation. A showing of unnecessary suggestiveness alone does not require exclusion.'

The defendant moves to suppress Ruiz's out-of-court identification. How should the court rule?

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. (correct answer)
Grant the motion. Once the court finds that a pretrial identification procedure was unnecessarily suggestive, due process automatically requires exclusion; the reliability factors are relevant only to whether an in-court identification may be admitted.
Grant the motion. Because a double-blind sequential procedure was practicable, the detective's use of a simultaneous six-photo array was per se unnecessarily suggestive, and suppression is required regardless of the witness's certainty or description.
Deny the motion. A six-photo array is not inherently suggestive, and a photospread identification violates due process only if the witness was shown a single photograph or a single live suspect.

Explanation: 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.

Question 12

Officer Bell arrested Jackson and was transporting him in handcuffs from the booking desk to an interview room. As Bell passed the doorway of a witness waiting room, robbery victim Samuels, who was waiting to give a statement, saw Jackson and yelled, 'That's him!' Bell had not intended to show Jackson to Samuels, did not know Samuels was in the waiting room, and had no reason to know that any witness was there. Jackson moves to suppress Samuels's out-of-court identification. Under People v. Moreau: 'A due process challenge to an identification requires proof of two things: the challenged identification resulted from a suggestive procedure, and the suggestive procedure was arranged by law enforcement officers. Due process does not require a pretrial reliability hearing for a spontaneous identification made under suggestive circumstances that the police did not create. If the police did not purposely present the suspect to the witness, and did not know or have reason to know that the witness would observe the suspect, the reliability of the identification is for the jury through cross-examination and argument.'

Should the court grant Jackson's motion to suppress?

Grant the motion. The encounter was inherently suggestive because Jackson was handcuffed and in police custody, and due process is violated whenever a witness identifies a suspect while the suspect is in custody.
Grant the motion. Officer Bell created the confrontation by choosing to walk Jackson past the waiting room, so the police must prove by clear and convincing evidence that Samuels's identification was independently reliable.
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. (correct answer)
Deny the motion. Because Bell had probable cause to arrest Jackson, any identification made by a crime victim while Jackson was in lawful custody is presumptively reliable and admissible.

Explanation: 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.

Question 13

Knocking on doors after a burglary, police found V, who said she had seen the burglar inside her home for several minutes before he fled. She told police he was a man with a gold front tooth and a dragon tattoo on his forearm. Later that day, police arrested D, who had not yet been charged, and placed him alone in a room. Without counsel present, an officer told V they had caught the man who broke into her house and asked her to look. V identified D. At trial, the prosecutor offers neither that statement nor the showup identification, but V points to D in court and testifies that he is the burglar. D moves to exclude the in-court identification, arguing that the station-house showup was unnecessarily suggestive and tainted her memory.

Which of the following is the best response to D's motion?

Grant the motion; once police have used an unnecessarily suggestive showup, the witness is forever barred from identifying the defendant in court, regardless of any independent memory.
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. (correct answer)
Deny the motion; the right to counsel does not attach to station-house showups before formal charges, so any potential suggestiveness is irrelevant to the admissibility of the in-court identification.
Grant the motion; because D had been arrested but not yet indicted, police were required to have counsel present at the showup, and their failure requires suppression of the in-court identification.

Explanation: 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.

Question 14

After D was indicted, detectives showed the sole eyewitness a six-photo array without telling defense counsel. D's photograph was the only one in color; the prosecutor conceded that the array was unnecessarily suggestive. Before seeing the array, the eyewitness had told police that the robber had a scar under his left eye and that she had observed him from about two feet away in a well-lighted store for roughly a minute. She selected D immediately and said she was 100 percent certain. D moves to suppress the photo identification and the later in-court identification.

Should the court grant the motion?

Yes, because the Sixth Amendment right to counsel applies to all post-indictment identification procedures, and counsel's absence requires exclusion of the photo identification and any later in-court identification.
Yes, because the prosecutor's concession establishes an unnecessarily suggestive procedure, and under due process such procedures result in automatic exclusion of any subsequent identification.
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. (correct answer)
No, because due process review applies only to physical lineups, not to photo arrays, so D may not challenge the photo identification.

Explanation: 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.

Question 15

A store clerk was robbed at closing time. The robber wore a ski mask but pulled it up briefly while reaching for a cash drawer, and the clerk saw his face for about two seconds under a flickering fluorescent light. Police arrested the defendant 20 minutes later, four blocks away, based on a radio description. They drove the defendant, alone and handcuffed in the back of a patrol car, to the store, where the clerk viewed him through the car window with the interior light on. The clerk said, 'That could be him,' and then, after the officer asked, 'Are you sure? Take another look,' said, 'Yes, that is him.' The defendant was not given Miranda warnings before this viewing. At trial, the clerk again identified the defendant in court.

The defense moves to suppress the clerk's identification testimony. Which issue is most significant in evaluating that motion?

Whether the pretrial viewing was so impermissibly suggestive that it created a very substantial likelihood of irreparable misidentification (correct answer)
Whether the defendant's appearance in the patrol car at the station-house-like setting was a custodial interrogation requiring Miranda warnings
Whether the clerk's initial uncertainty and subsequent in-court identification are inadmissible hearsay
Whether the police had probable cause to arrest the defendant before conducting the one-person viewing

Explanation: 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.

Question 16

A witness to a drive-by shooting was shown a photo array three weeks later by police. The defendant's photo was the only one with a visible scar on the cheek, matching the witness's initial description. The witness identified the defendant, but at a later deposition she said she was 'not as sure' as she had been. The prosecution then had the witness view a second photo array containing the defendant's photo and five different fillers. This time the fillers more closely matched the defendant's appearance, and the witness again picked the defendant. At trial, the prosecution plans to introduce both the first and second photo-array identifications, plus an in-court identification.

Which of the following facts, if established, would most seriously undermine the prosecution's ability to admit the first photo-array identification?

The witness saw the shooter for only an instant, at night, from a moving vehicle. (correct answer)
The second photo array contained more appropriate fillers than the first photo array.
The witness gave a detailed description of the shooter to police before the first photo array.
The first photo array was administered by a detective who did not know which photo was the defendant's.

Explanation: 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.

Question 17

At 1:00 a.m., a masked man robbed a gas station clerk at gunpoint for about twenty seconds. The clerk later told police only that the robber was a Black man, maybe six feet tall, wearing all black. Two days afterward, detectives arrested D for an unrelated offense and, without attempting to assemble a photo array, showed the clerk a single photograph of D and asked whether he was the robber. The clerk replied that she thought so and that she remembered his eyes. At the suppression hearing, the clerk acknowledged that she had not mentioned the eyes before seeing the photograph, and the prosecutor conceded the single-photo display was suggestive but argued the clerk's recognition of D's eyes established reliability.

How should the court rule on D's motion to suppress the identification?

Deny; an identification made from a single photograph is admissible because a one-on-one display is no more suggestive than a properly constructed array.
Deny; due process does not authorize pretrial exclusion of eyewitness identifications because reliability is a jury question and the defendant can cross-examine.
Grant; an unnecessarily suggestive identification procedure is unconstitutional per se, and the court need not consider whether the witness had an independent basis.
Grant; the procedure was unnecessarily suggestive, and the identification lacks sufficient indicia of reliability to overcome the resulting likelihood of misidentification. (correct answer)

Explanation: 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.