Everyone has freedom under the law to willingly attest, agree or disagree to a particular…
The typical eyewitness identification happens in court. A witness has to point at a defendant and state he is the perpetrator. These identifications are however preceded by out of court identifications.
Out of court identifications can follow one of the following procedures:
- Lineups- Where a witness has to pick a suspect out of a line of people(fillers)
- Showups- Where a witness is presented with one suspect and asked whether the suspect was the perpetrator of the incident
- Photo arrays- Where a witness has to pick the perpetrator's photo out of a variety of photos
The procedures of witness identification face many constitutional challenges. The challenges to these procedures are focused on the provisions of the Sixth amendment below.
The Sixth Amendment to the U.S. reads in part; ”In all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense”.
The Sixth Amendment guarantees the defendants a right to use the compulsory process of the judiciary to subpoena witnesses who could give favorable information about for their defense or exculpatory evidence. The constitution allows defendants access to legal resources to subpoena a witness even when they can't afford the expenses. It also prohibits Judges from undermining the testimony of subpoenaed witnesses.
The Sixth Amendment, in some circumstances, requires the prosecution to help the defendant locate witnesses. An example is the Supreme case ruling in Roviaro v. the United States where the defendant faced charges of selling heroin to ”John Doe.” The prosecution declined to reveal the identity of John Doe. The U.S Supreme Court ruled that by failing to disclose the identity of John Doe, the prosecution had abridged the Sixth Amendment, since revealing the identity of the witness may have produced testimony that would be relevant and helpful to the defense.
The common law rule in the U.S has been laid to rest by the Sixth Amendment. Thanks to this Amendment, defendants can act as their witnesses. This law, however, only allows defendants to testify on their behalf, but it does not require them to do so.
Right to Counsel and confrontation
The U.S Supreme Court, in the case of United States v. Wade, 388 U.S. 218 (1967), upheld that anyone subjected to lineups after a criminal indictment has a right to the assistance of counsel under the Sixth Amendment. The court also stated that the right to counsel attaches to post charge show-ups but does not extend to photo arrays whether it occurs before or after being charged.
The right to counsel attaches when adversarial criminal proceedings have been initiated either through a formal charge, preliminary hearing, information, indictment, or arraignment. It is important to note that this right does not arise during arrests unless there are formal charges in place as with the case of Miranda v. Arizona.
The constitution also states that defendants do not enjoy the right to counsel through every ligation phase of adversarial proceedings. The right to counsel attaches only when the proceedings have reached ”critical stages.” A critical stage during the proceedings is the time when the advice of a counsel is required to ensure the defendant gets a fair trial or in cases where a defense cannot be prepared or presented adequately without the aid of a counsel.
Generally, courts agree that pretrial and trials are critical stages that require the presence of a counsel. However, some pretrial instances like pretrial scientific analysis of fingerprints, blood samples, or voice samples do not constitute critical stages.
The sixth amendment also requires the trial judge to appoint a lawyer on behalf of the defender in case he cannot afford one.
Usually, there is a high potential for prejudice in pretrial lineups. It is the role of the Counsel to observe that lineups are conducted in the right way. The lawyer should expose any flaws that may arise in the lineup during upcoming proceedings.