Suppressing an In-Court Identification After an Unlawful Lineup

A witness’s courtroom identification can strongly influence a jury. But when the witness previously identified the defendant during an unlawful physical lineup, the government cannot automatically use a later identification at trial.

The prosecution may be required to prove that the courtroom identification is based on the witness’s original observation of the alleged crime rather than on the unconstitutional lineup. If an unlawful lineup may have influenced a witness in your case, contact federal criminal defense attorney Michael J. Petro immediately to determine whether the identification can be suppressed.

The Right to Counsel at a Physical Lineup

In United States v. Wade, 388 U.S. 218 (1967), the Supreme Court held that a post-charge physical lineup is a critical stage of a criminal prosecution. After the Sixth Amendment right to counsel has attached, the defendant generally has the right to have counsel present during the lineup.

The right ordinarily attaches after the government initiates adversarial judicial proceedings, such as through an indictment, information, or initial appearance.

Counsel’s presence allows the defense to observe the procedure and later identify suggestive conduct, improper instructions, differences among lineup participants, or other circumstances that may influence the witness.

Physical Lineups and Photo Arrays Are Different

The Sixth Amendment right recognized in Wade applies to a physical lineup conducted after formal criminal proceedings have begun.

The Supreme Court held in United States v. Ash, 413 U.S. 300 (1973), that the Sixth Amendment does not generally require defense counsel to be present when police show a photographic array to a witness, even after indictment.

A photo array may still be challenged under the Due Process Clause if police arranged an unnecessarily suggestive procedure that created a substantial likelihood of misidentification. That is a different constitutional argument from the right to counsel at a physical lineup.

What Happens When a Lineup Violates the Right to Counsel?

When police conduct a post-charge physical lineup without notifying counsel or obtaining a valid waiver, evidence concerning the lineup identification may be excluded.

Suppressing the original lineup identification does not automatically prohibit the witness from identifying the defendant in court. The government may still attempt to establish that the witness has an independent basis for the courtroom identification.

The court must determine whether the witness is identifying the defendant from observations made during the alleged crime or from the later unlawful lineup.

The Government Must Establish an Independent Source

After a lineup violates the Sixth Amendment right to counsel, the government bears the burden of establishing by clear and convincing evidence that a proposed in court identification rests on observations independent of the unlawful procedure.

The trial judge must conduct an evidentiary inquiry and make findings based on the relevant circumstances. A general statement that the witness will be allowed to identify the defendant is not enough.

The court must evaluate whether the unlawful lineup influenced or reinforced the witness’s memory.

The Wade Factors

Wade identified several factors for determining whether a witness has an independent basis for an in court identification.

Opportunity to Observe the Perpetrator

The court should consider how long the witness observed the person, the distance involved, the lighting, whether the witness’s view was obstructed, and whether the perpetrator wore a mask or disguise.

Accuracy of the Original Description

A detailed and accurate description given before the lineup may support an independent basis. Major differences between the initial description and the defendant’s appearance may undermine reliability.

Prior Identification of Another Person

If the witness previously identified someone else, that fact weighs against the government’s claim that the courtroom identification comes from an independent memory.

Earlier Photographic Identification

The court should examine whether the witness saw photographs of the defendant before the physical lineup. Repeated exposure to the same suspect may influence the witness’s later identification.

Failure to Identify the Defendant Previously

A witness’s failure to identify the defendant during an earlier procedure may weaken the claim that a later courtroom identification is based on the original event.

Time Between the Crime and the Lineup

Memory generally becomes less reliable as time passes. A lengthy delay can increase the risk that the witness remembers the lineup photograph or procedure rather than the person observed during the crime.

Details of the Unlawful Lineup

The court should also examine how the lineup was conducted, whether the defendant stood out, what police told the witness, and whether officers provided confirming feedback after the selection.

No single factor controls. The judge must consider the complete record and determine whether the government has met its clear and convincing burden.

United States v. West

In United States v. West, 628 F.3d 425 (7th Cir. 2010), Edward West was charged with armed bank robbery and using a firearm during a crime of violence.

Witnesses identified West during an in-custody physical lineup conducted without his attorney. The district court suppressed the lineup identification after finding a violation of West’s Sixth Amendment right to counsel.

The court nevertheless stated that the witnesses would be permitted to identify West during trial. It did not hold a hearing on whether those identifications had an independent source. It also failed to address the Wade factors or determine whether the government had satisfied its clear and convincing burden.

West entered a conditional guilty plea, preserving the identification issue for appeal.

Why the Convictions Were Vacated

The Seventh Circuit held that the district court’s statements allowing future courtroom identifications were not a substitute for the findings required by Wade.

The trial court had not determined whether the proposed identifications would be based on the witnesses’ observations during the robberies rather than on the unconstitutional lineup. It also had not acknowledged or applied the government’s burden of proof.

The Court of Appeals vacated West’s convictions and remanded the case for the necessary factual findings. Depending on the outcome, the district court could reinstate the convictions or order a trial.

The Seventh Circuit’s complete opinion in United States v. West explains why a trial court must make an independent source determination before permitting a courtroom identification following an unconstitutional lineup.

Challenging an In-Court Identification

Defense counsel should obtain photographs, video, reports, witness instructions, lineup records, and all prior descriptions or identification attempts. Counsel should also determine when formal proceedings began, whether the defendant’s attorney received notice, and whether the defendant signed a valid waiver.

A motion should request suppression of the original lineup identification and any later identification derived from it. If the government claims an independent source, the defense should request an evidentiary hearing and specific findings under Wade.

Attorney Michael J. Petro represents individuals in federal criminal trials and appeals in Tampa, Florida, and Chicago, Illinois. Contact federal criminal defense attorney Michael J. Petro today if an unlawful lineup or unreliable identification is being used against you.