Immunity; Eyewitness Identifications by X2U37t


									Immunity; Eyewitness
• Involves exercise of prosecutorial discretion
• Protects witness from use of testimony in
  subsequent criminal prosecution
• Use, derivative use, transactional immunity
• Enables government to compel responses
  without violating Fifth Amendment
• Perjury exception
• “Act of production immunity” (US v.
     Eyewitness Identifications
• Have strong effect on juries
• Notoriously unreliable (inherent and
  suggestivity problems)
• Has led to constitutional protections
    Approaches to Eyewitness ID
•   Right to counsel
•   Due Process
•   Fourth Amendment
•   Fifth Amendment (rejected in Schmerber v.
         Types of ID Procedures
•   Live (“corporeal”) line up
•   Show up or cold show
•   Photographic spreads; mug books
•   Voice “line up”
•   Sequential ID procedures
•   “Double blind” testing
•   Dog Scent Line-up
•   Admonitions
     Right to counsel approach
• Result of a post-indictment corporeal line
  up in absence of counsel is inadmissible; so
  is subsequent in-court identification, unless
  prosecution can show independent basis for
  in-court ID by clear and convincing
  evidence (US v. Wade)
• Factors include prior observation,
  discrepant description, ID of another, prior
  photo ID, failure to ID, elapse of time, etc.
       Right to counsel contd
• Does not apply to pre-indictment corporeal
  line up (Kirby v. IL)
• Does not apply to photo spreads (US v.
• Application relatively rare
• Role of counsel?
• Defense request for line up
     The Due Process Approach
• Identification is inadmissible if it is so
  unnecessarily suggestive as to create very
  substantial likelihood of misidentification
• Later in court identification is also inadmissible if
  very substantial risk of irreparable
• Both judged by “totality of circumstances”
• High standard
• Applies to any type of procedure, at any time
The Due Process Approach contd
• Procedure must be “suggestive”
• And unnecessary (Stovall v. Denno)
• Even unnecessarily suggestive ID
  admissible if there are sufficient indices of
  reliability (Manson v. Brathwaite)
• Factors include witness opportunity, degree
  of attention, accuracy of prior description,
  certainty, elapse of time, corrupting
  influences of suggestion
     Alternatives to Exclusion
• Corroboration requirement
• Jury Instructions
• Expert testimony
            Problem 10-1
• Did line up violate due process?
• Suggestiveness: D didn’t understand
  commands; slow reactions made him stand
• Unnecessary: did police take reasonable
  steps to assure fair procedure?
• Reliability?
                Next time
• Right to counsel, pp. 819-850

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