types of identification procedures that permit a "right to counsel." Lineups are a type of identification procedure
that permits a "right to counsel."
Lineups
Lineups are subject to gross manipulation. Therefore, a subject has a right to have his or her lawyer present
during a lineup only when the line up is conducted after pretrial restraint. Characteristics of a lineup that can be
manipulated are--
o
Composition (the types of people displayed for comparison).
o
Time.
o
Manner.
In a law case Martinez v. Turner, 461 F. 2d 261 (10th CIR 1972), the court found the lineup procedures used by
the police to be "impermissible suggestive." In this lineup, the suspected subject was tremendously taller than the
other men. The goal of this manipulation was to focus attention on the suspect. What would be the manipulation
in the following lineup? After a burglary, the victim identified the subject to be a black male. A few days later,
the victim is called into the MP station to identify the suspect. A lineup procedure is used. In this lineup, all of
the men are white, except the suspect who is black.
The "manipulation" or "suggestion" is obvious. The black suspect could be identified as the burglar since he was
the only black man there.
Because of these types of "manipulations" or "suggestibility" of lineup, a subject has a right to have a lawyer
present. The lawyer can only observe. He can make recommendations but the investigators are not obligated to
follow them.
Subjects do not have a right to have an attorney present for photographic arrays and one-on-one showings.
Photographic arrays cannot be manipulated the way lineups can. However, the procedure of showing photographs
to victims or witnesses can be manipulated. The case of State v. Wallace, 285 So. 2d 796 (1973) is an example.
The witness was told that the people charged were in the group of pictures she was given. There was an obvious
tendency to cooperate by making an identification.
One-on-one showings do not require a lawyer to be present. One-on-one showings usually happen without
planning. The act of calling a lawyer would ruin the spontaneity of the situation. The court examines one-on-one
identification procedures carefully. Each case is considered individually. In the case of Smith v. Coiner, 473 E.
2d 877 (4th CIR 1972), the court did not allow the identification. The circumstances of this case were as follows:
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