In-court identifications

The right to a fair trial is violated when an out-of-court confrontation occurs which is unnecessarily or impermissibly suggestive and which creates a substantial likelihood of error in identification. The Due Process Clause requires exclusion of an in-court identification of the defendant if such identification is tainted by impermissibly suggestive pretrial lineup, show-up or photo identification unless the in-court identification has an independent source. The test to determine if the out-of-court confrontation violates Due Process is first, was the identification procedure unnecessarily suggestive?  Second, if so, under the totality of the circumstances did such suggestiveness give rise to a substantial likelihood of misidentification —i.e., make the identification inherently unreliable?  Third, if so, then is the identification nevertheless reliable under the totality of the circumstances from an “independent source?” The burden is initially on the defendant to prove by preponderance of the evidence that the pretrial identification procedure complained of was unnecessarily suggestive. Once the initial burden is met by the defendant, the burden of proof shifts to the prosecution to demonstrate by clear and convincing evidence that the identification is nevertheless reliable.

Previous post:

Next post: