right to the presence of counsel "applies only to corporeal (physical), not
photographic, exhibitions of an accused to witnesses." U.S. v. Smith, 44 CMR
904 (ACMR, 1971).
This is also true in the case of "an unintentional
exposure... a situation in which the accused
is inadvertently
and
unintentionally exposed to witnesses."
U.S. v. Young, 44 CMR 670 (AFCMR,
1971).
3. The due process standard. As was noted earlier, the line-up must not be
"so suggestive as to create a substantial likelihood of misidentification" (MRE
321(b)l). In other words, it must not be unfair. In U.S. v. Wade, 388 US 218,
18 L.Ed.2d 1149, 87 SCt 1926 (1967), the Supreme Court noted the potential
problems with eyewitness testimony, and the dangers of unreliable, suggestive
identification procedures.
There are, then, "hazards of serious unfairness"
and "grave potential for prejudice."
a. What, then, makes a line-up unfair? And, if it is unfair, when has it
given rise to a "substantial likelihood of misidentification?" Possibilities
for making a line-up unfair include such things as suggestive statements by the
police, and having the suspect clearly stand out from among the others in the
line-up.
In one case, for example, the suspect was 6 feet tall, while the
others in the line-up were only about 5-1/2 feet tall. Also, the suspect was
wearing a Jacket similar to the one worn by the robber.
This was deemed
unfair, since the suspect 'stood out from the (others) by the contrast of his
height and by the fact that he was wearing a leather jacket similar to that
worn by the robber." Such a procedure "made it all but inevitable" that the
suspect would be picked out.
Such a procedure, then, "so undermined the
reliability of the eyewitness identification as to violate due process." This
was equated to telling the witness that one of the subjects in the line-up was
"the man."
Foster v. California, 394 US 440, 22 L.Ed.2d 402, 89 SCt 1127
(1969).
A one-person line-up has similarly been condemned.
Biggers v.
Tennessee, 390 US 404, 19 L.Ed.2d 1267, 88 SCt 979 (1968), U.S. v. Evans, 27 MJ
34 (CMA, 1988).
b. Note that the same factors of suggestiveness (unfairness) can also make
a photograph line-up improper. Was the suspect's photo larger than the others?
Was his the only mug shot in the group? Was his the only one in color? Did his
somehow stand out from among the others?
Did the police make suggestive
statements to the witness?
An "improper use of photographs by police may
sometimes cause witnesses to err in identifying criminals."
Again, the
standard is the same: was the photographic identification process "so
impermissibly suggestive as to give rise to a very substantial likelihood of
irreparable misidentification?" Simmons v. U.S., 390 US 377, 19 L.Ed.2d 1247,
88 SCt 967 (1968).
c. Showing a suspect singly to the victim "is pregnant with prejudice...
When the suspect is shown singly, havoc is more likely be played with the best-
intended recollections." Biggers v. Tennessee, 390 US 404, 19 L.Ed.2d 1267, 88
SCt 979 (1968).
The one-person line-up, or show-up, may be permissible, if
dictated by the circumstances.
In one case, a one-person confrontation
occurred in a hospital room, where the victim was in danger of death. To have
delayed the line-up could have proven fatal. The "need for
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