immediate action" was apparent here, and could have served to exonerate the
suspect as well. It was "the only feasible procedure," as the police could not
take the victim to the jail. The usual line-up procedures, then, were simply
out of the question. Stovall v. Denno, 388 US 293, 18 L.Ed.2d 1199, 87 SCt
1967 (1967).
d. If the line-up is found to have been impermissibly suggestive, the
issue then becomes "whether, considering the totality of (the) surrounding
circumstances, there is a very substantial likelihood of irreparable
misidentification." It will be the government's burden to show "that there was
a source for an in-court identification independent of the line-up." Relevant
factors in determining "the likelihood of an irreparable misidentification"
include such things as the opportunity of the witness to view the criminal at
the time of the crime, the witness's degree of attention, the accuracy of the
witness's prior description of the criminal, the level of certainty
demonstrated by the witness at the confrontation, and the length of time
between the crime and the confrontation. U.S. v. Quick, 3 MJ 70 (CMA, 1970).
e. The issue, then, is "whether an illegal line-up would taint an in-court
identification," as opposed to there being an independent source for the
witness' later in-court identification of the accused. In U.S. v. Fors, 10 MJ
367 (CMA, 1981), the court identified some additional relevant factors, to
include "the existence of any discrepancy between any pre-lineup description
and the defendant's actual description," any identification by the witness of
another person, prior to the line-up in question, and "the failure to identify
the defendant on prior occasion." The court will look at all of the relevant
factors in determining whether there was "a source of the in-court
identification independent of the illegal line-up."
When there has been an
unlawful impermissibly suggestive line-up, it is the government's burden "to
establish by clear and convincing evidence that (the) in-court identification
testimony was based on observations of the suspect other than those stemming
from the illegal line-up."
f. Conducting an unlawful line-up, then, is very risky.
When the
procedure has been impermissibly suggestive, the "central question" will be
whether the witness's in-court identification of the accused is the product
thereof. Neil v. Biggers, 409 U.S. 186, 34 LEd2d 401, 93 SCt 375 (1972). If
the government cannot satisfy this burden, the witness may be prevented from
identifying the accused in court. The result, then, may be disastrous for the
government's case.
g. If reasonable precautions are taken in arranging the line-up, the
problems noted above will not occur.
A good guide is the standard found in
CIDR 195-1.
It states, for example, that there should be six or more
participants in the line-up, all of whom should be reasonably similar in
appearance.
Similar standards are set forth for conducting photographic
identification procedures.
MP1020
1-78
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