Ī factfinder may draw adverse inferences from a defendant's refusal to participate in an identification procedure or a defendants altered appearance after the crime. Courts may use coercive methods such as imprisonment or contempt of court to force participation in identification procedures. The criminal defense attorney should endeavor, whenever possible, to be physically present during any identification of his or her client. This is the only way to guarantee that the identification is fair and is not coercive. As a practical matter this is not always possible.

Presence of a criminal defense attorney at an identification procedure poses certain ethical problems. For instance, if the defense attorney is compelled to become a witness in the trial he may then be forced to withdraw as counsel to the case because of this conflict of interest.Īs a general rule identification procedures should not be 'unnececessarily suggestive'. In determining what is 'fair' or 'unfair' in identification procedures (the due process question), the courts consider all the circumstances leading up to the identification. Procedures for Challenging Identification Procedures 6 Recommended Police Guidelines for Lineup and Photo Arrays.3 Recommended Police Guidelines for Showups.1 Procedures for Challenging Identification Procedures.Unfairness will be found only when, in the light of all the circumstances, the identification procedure was so suggestive as to give rise to a real and substantial likelihood of irreparable misidentification.

In order to challenge an identification procedure in a common law system, the lawyer should request a hearing to suppress the identification as unnecessarily suggestive (known as a 'Wade Hearing'). A defendant may have to testify at such a hearing to establish the facts surrounding the original identification. In the United States these statements generally cannot be used at the later trial unless the defendant opens the door to inclusion on direct or cross-examination. In some cases, usually soon after the alleged commission of a crime, a witness or victim will be presented with one potential defendant. Some courts have suppressed identification evidence based on the use of showups due to the inherent suggestiveness of the practice. Showups are the most suggestive of all eyewitness identifications because only one person is shown to the witness.

Groupon mypublisher