For A-Plus Writer Only

an anderson book

NS u

FOR CRIM NAL JUST CE Fourteenth Edition I Jacqueline R. Kanovitz

ight to Counsel

In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense.

Sixth Amendment, 1791

409

8

Chapter Outline

8.1 Overview of the Sixth Amendment Right to Counsel 8.2 - The Indigent Person's Right to Appointed Counsel 8.3 - The Right to Assistance of Counsel in Pre- and Post-Trial Procee

ings: Critical Stages of the Prosecution and Criminal Appeals 8.4 - The Defendant's Right to Self-Representation 8.5 - Ineffective Assistance of Counsel 8.6 Sixth Amendment Restrictions on the Conduct of the Police 8.7 Pretrial Identification Procedures 8.8 - Fourth Amendment Limitations on Admission of Pretrial Identifi'

tion Testimony 8.9 - Due Process Requirements for Pretrial Identification Procedures 8.10 - Right to Counsel During Pretrial Identification Procedures 8.11 Summary and Practical Suggestions 428 Notes

410

- ::::cused - p o inted counsel - ~a ignment

: nfrontation - ·c al stage - ~be as Corpus - ictment

"'ormation

Interrogation Lineup Photographic identification Preliminary hearing Prosecution Retained counsel Showup

-Overview of the Sixth Amendment Right to Counsel

The Sixth Amendment right to counsel represents a departure from the English - on law. Accused felons did not acquire the right to counsel in England until _: •

1 Counsel was less important during the early years because criminal cases were ::: cuted by the victim, not the state. 2 Consequently, the accused and accuser stood -elatively equal footing , reducing the need for professional assistance.

In the United States, in contrast, criminal cases have always been prosecuted by ~ =ovemment, using highly trained professionals .3 The advent of our system made it

ative for defendants to hire lawyers to do battle for them. This was the back- d against which the Framers adopted the Sixth Amendment which guarantees that

~~all criminal prosecutions, the accused shall enjoy the right ... to have the Assis- " of Counsel for his defense. "4

The Sixth Amendment right to counsel performs two functions important to the - 21irninistration of justice. First and foremost , counsel is necessary to avoid unjust

· tions. The average layperson lacks the legal skills needed to put forth an effec- = defense. This places uncounseled defendants at risk of being convicted, even .::gh innocent. The Supreme Court has repeatedly stressed the importance of legal -ranee in avoiding unjust convictions:

- e ri ght to be heard would be, in many cases, of little avail if it did not comprehend e ri ght to be heard by counsel. Even the intelligent and educated layman has

:mall and sometimes no skill in the science of law. If charged with crime, he is inca- ::xJble, generally, of determining for himself whether the indictment is good or bad. - e is unfamiliar with the rules of evidence. Left without the aid of counsel he may ::::e p ut on trial without a proper charge, and convicted upon incompetent

411

412 CONSTITUTIONAL LAW FOR CRIMINAL JusTICE

evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lac both the skill and knowledge adequately to prepare his defense, even though rE have a perfect one. He requires the guiding hand of counsel at every step in trE proceedings against him. Without it though he be not guilty, he faces the dang&· of conviction because he does not know how to establish his innocence. 5

The right to counsel is so important to the fair administration of justice modem times counsel must be made available, free of charge, to defendants who c. afford to hire one on their own and ineffective assistance of counsel renders a co- tion vulnerable to challenge.

The right to counsel also performs a second function. Representation is neces- - for the effective assertion of a criminal defendant 's other constitutional rights. P tions like the right to remain silent during custodial interrogations and to have the =- of an illegal search suppressed are basic to our adversarial system but would have - - practical application without counsel, because few defendants are sufficiently vers-· constitutional law to claim these rights on their own. Moreover, because impo. rights may be lost during stages of the criminal process other than the trial, the ric counsel is no longer just a "trial right. " It is also available in a variety of pre- and trial contexts. 6

§ 8.2 -The Indigent Person's Right to Appointed Counse

At common law and throughout most of the Sixth Amendment's history, ass is of counsel was available only to defendants who could afford an attorney. The Amendment right to counsel was interpreted to mean only that this right could no: _ denied to defendants who had the means to hire an attorney. The government was no duty to provide counsel for defendants who lacked means. This interpretation s unjust by modem standards. If, as the founders believed, assistance of counsel necessary to ensure a fair trial, then it followed that defendants who lacked means ,- _ being unfairly convicted, imprisoned, and even executed. 7

Powell v. Alabama8 was the first case to recognize the right of an indigent cr: inal defendant to court-appointed counsel. In Powell, nine indigent and illite._ African-American youths were charged with raping two white girls. They were tri a racially tense environment in which the state militia had to be called in to protect th- from an angry mob waiting outside the courthouse. The youths were tried without- aid of counsel. Eight of the nine were convicted and sentenced to death.

The Supreme Court set aside their convictions, holding that they were denied - right to appointed counsel. The source of this right was not the Sixth Amendment ri~­ to counsel. Powell involved a state court conviction and, at the time it was decided. - safeguards contained in the Bill of Rights were not binding on the states. The Supr Court located the right of state criminal defendants to court-appointed counse~ - the due process clause of the Fourteenth Amendment which guarantees a fair trial. T:

RIGHT TO COUNSEL 413

' ;rrt reasoned that placing illiterate youths on trial for their life without affording the help of a lawyer rendered the trial fundamentally unfair, violating the Four-

- th Amendment prohibition against depriving citizens of " life .. . without due pro- :- of law." Powell v. Alabama was an exceedingly narrow ruling, as the following -- ge reveals:

Ne are of opinion t hat, under t he circumstances ... counsel was so vital and imper- ative th at th e fa ilure of the t rial court to make an effective appointment of counsel N O S . .. a denial of due process within the meaning of the Fourteenth Amendment . Nhether t his wo uld be so in ot her criminal prosecut ions, or under other circum - a nces, we need not determine. All that it is necessary now to decide ... is that in

a c apital case, where the defendant is unable to employ counseL and is incapable a d equately of making his own defense because of ignorance, feeb le-mindedness, · eracy, or t he like, it is the duty of t he court, whether requested or not, to assig n ounsel for him as a necessary requisite of due process of law. 9

Powell gave state criminal defendants facing serious charges the right to court-ap- -red counsel if they were illiterate or otherwise at a disadvantage in defending them- es. Predicated on the due process right to a fair trial, Powell required proof of

_ ·al circumstances that caused the failure to provide court-appointed counsel to : in an unfair trial. Six years later, the Supreme Court conferred a broader right to

--el on indigent criminal defendants facing federal criminal charges , a right that ·ed from the Sixth Amendment that did not depend on proof that they were illiter- r otherwise handicapped in defending themselves. 10 The right to court-appointed -el was made available to any defendant facing serious federal charges who lacked eans to hire a lawyer. 11

-:be law stood at this point for the next 25 years. Federal courts had to provide -el for any criminal defendant facing serious charges who lacked the means to hire

- om ey, while state courts had to provide counsel only for defendants who, because -. cial circumstances," were incapable of receiving a fair trial without representa-

.... _. counsel. -:-he Supreme Court erased this distinction in the landmark case of Gideon v. Wain -

- • . 12 Gideon was charged by the state of Florida with a felony that carried a five-

sentence. He demanded that the trial court appoint an attorney for him, his only being that he could not afford one . The court denied Gideon 's demand, explain-

- ~ t because he was not illiterate or otherwise hindered from representing himself, -- not entitled to appointment of counsel. Gideon was convicted and eventually

.= t a habeas corpus petition challenging the constitutionality of his imprisonment 3 bas is that he was denied the Sixth Amendment right to court-appointed counsel. ::: - preme Court agreed, ruling that court-appointed counsel must henceforth be

- - ed to state criminal defendants facing felony charges who lack the means to hire ·er on their ownY

--:-- e Sixth Amendment today entitles indigent criminal defendants charged with a - to representation at the state's expense. In the case of misdemeanor

414 CONSTITUTIONAL LAW FOR CRIMINAL Jus TICE §

prosecutions, the right to counsel turns on the sentence actually imposed, not on r:c.~ potential sentence faced. 14 Indigent defendants charged with a misdemeanor cannot x incarcerated, even for a short time, unless counsel is appointed to represent them. Ho"'- ever, no right to counsel exists when a fine alone is imposed. 15 This limitation is base- on practical considerations. The cost of providing court-appointed counsel in case where a fine alone is imposed would be too burdensome on state governments. If S is apprehended for tricycle theft, a misdemeanor punishable by incarceration of up - 60 days, $1,000 fine , or both, the judge will have to decide before his trial starts wheth~ if Sam is convicted, the offense would merit jail time. If so, counsel must be appoinr.e:. to represent him. If the judge fails to appoint counsel, a fine alone may be imposed eY.,... though facts brought to light at the trial establish that Sam has a tricycle fetish and this is the sixth one he has purloined this month. 16

Once the right to appointment of trial counsel became firmly established, a peri~­ of rapid expansion followed. Indigent criminal defendants today have the right to ha ~ counsel appointed to represent them during all critical pretrial stages, 17 post-trial se:::- tencing proceedings, 18 and the first appeal of a conviction or sentence. 19 The right- counsel during these stages is covered in the next section.

§ 8.3 -The Right to Assistance of Counsel in Pre- and Post-Trial Proceedings: Critical Stages of the Prosecution and Criminal Appeals

When the Sixth Amendment was adopted, the trial was the only adversarial cu. - frontation between the government and the accused. 20 There were no pretrial judi · proceedings , and no police force to engage the defendant in interrogations or oth~ investigative procedures. 21 As a result, the Sixth Amendment right to counsel was ori~­ inally viewed as a trial right. 22

Criminal procedures have changed and trials have become more elabora:=: Today, there are numerous pre- and post-trial proceedings in which decisions m be made and important rights may be lost if the defendant is forced to proceed wi::.-- out counsel. These changes made expansion of the Sixth Amendment right to couns~ necessary.

A. Right to Counsel During Critical Stages

Critical stage is the phrase the Supreme Court has coined to describe those p~­ and post-trial proceedings in which the accused has a Sixth Amendment right to ha counsel present. 23 To be regarded as a "critical stage," the event must have the fo llo·-- ing characteristics.

First, it must take place after a criminal prosecution has been initiated. 24 This is ~: point at which the suspect officially becomes an "accused" and the Sixth Amendm~ right to counsel attaches . 25 Criminal prosecutions are generally initiated in one of -l.

RIGHT TO CouNSEL 415

wing four ways: (1) a preliminary hearing during which the defendant is taken : ~ the magistrate, informed of the charges, and bail is set; (2) the filing of an infor-

"on by the prosecutor; (3) the return of an indictment by a grand jury; and (4) an ment during which the defendant is read the charges and asked to enter a plea. 26

Second, the event must involve an adversarial confrontation between the govern- ~ and the accused or, in other words, an encounter in which the accused and a esentative of the government are both present. 27 No right to counsel exists, for ple, during government interviews of prosecution witnesses and crime lab tests

__ e the accused has no right to be present. 28

Finally, the encounter must be of such a nature that important rights may be lost, _ es waived, or the fairness of the trial placed in jeopardy if the defendant is forced

;:""VCeed without the guiding hand of counsel. 29

Pretrial Events Recognized as Critical Stages

The following pretrial judicial proceedings have been recognized as critical stages: ;rreliminary hearings at which evidence is presented and a decision on bail is made,

- i:>a il hearings, and (3) arraignrnents. 30 All three involve confrontations between the ernment and the accused, occurring after the initiation of prosecution, in which

--'";:uses may be waived,31 admissible statements made,32 or the defendant may even guilty. As a result, the assistance of counsel is necessary. The Supreme Court also

·iders interrogations,33 lineups,34 and showups35 occurring after the initiation of - cution to be critical stages.

Right to Counsel in Post- Trial Proceedings

The Sixth Amendment right to counsel continues to apply after the trial to post-con- - ·on sentencing proceedings36 and the first appeal of a conviction or sentence. 37

~ ere is no Sixth Amendment right to appointed counsel in subsequent appeals or eas corpus proceedings, 38 but defendants who can afford an attorney have a due

- -ess right to be represented .

. 4 -The Defendant's Right to Self-Representation

In addition to the right to the assistance of counsel and the appointment of counsel ID appropriate case, the Sixth Amendment guarantees yet a third right: the right to

·e assistance of counsel and conduct one's own defense .39 In striking contrast to the -.leon case, the Supreme Court, in Faretta v. California, 40 set aside a conviction not

use the defendant was denied appointed counsel, but because he was convicted er the trial court forced him to accept a public defender:

There can be no blinking t he fact that th e right of an accused to conduct his own d efense seems to cut against the grain of this Court's holdings that the Constitution

416 CO N STITUTIO N AL LAW FOR CRIMINAL JUSTICE

requires that no accused can be convicted and imprisoned unless he has bee~ accorded the right to counsel. For it surely is true that the basic thesis of those d eer sions is that the help of a lawyer is essential to assure the defendant a fair tria l. . . (But) it is not inconceivable that ... the defendant might present his case morE effectively by conducting his own defense .... The defendant, not the lawyer or State, will bear the personal consequences of a conviction. It is the defenda n- therefore, who must be free personally to decide ... 41

Before accepting a waiver of the right to counsel, the judge must make sure the defendant is mentally competent to make this decision and that the decisiorr been knowingly, intelligently, and voluntarily made.

Competence to waive the right to counsel. The Constitution does not permit - of individuals who are mentally incompetent. Mental competence to stand trial re the capacity to understand the nature of the proceedings and to cooperate with an - - ney.42 However, a stronger showing of competence is required to waive the rig~ ­ counsel and engage in self-representation. Defendants who suffer from severe m illness to the point where they are not competent to conduct trial proceedings on .. ~.~ own may be denied this right, even though they are competent to be tried.43

Requirements for a valid waiver. For a valid waiver, the defendant mus: advised of his Sixth Amendment rights and warned of the dangers and disadvan~ of self-representation. 44 There is no preset script or formula that must be read. Wbi:= defendant need not have the knowledge and skills of a lawyer to make this choic~ must be made with full awareness of the consequences . Consideration is given to- - defendant's education, prior experience with the criminal justice system, and the c, plexity of the charges in deciding whether the judge's warning was sufficient to ei1~­ the defendant to make an intelligent choice.

When a mentally competent criminal defendant makes an informed choice to ~­ resent himself, the decision must be honored. 45 Although the trial judge has discre to appoint standby counsel to provide legal assistance, a prose defendant is entitlec act as his own attorney and to present his defense in his own way. 46

§ 8.5 -Ineffective Assistance of Counsel

The Sixth Amendment right to counsel entitles the defendant to more than the m ... presence of an attorney in the courtroom. A defendant is entitled to reasonably effec representation. This requirement was first imposed in cases involving appointed co sel. After Gideon v. Wainwright ,47 the Court began hearing challenges to the effecti· = ness of the representation that indigent criminal defendants were receiving. Beca~ person represented by an attorney who does nothing is no better off than one who no representation at all, the Court made it clear that a state's Sixth Amendment dut; not discharged unless appointed counsel provides reasonably effective assistance that ineffective assistance renders a conviction vulnerable to challenge. 48

RIGHT TO CouNSEL 417

Defendants who can afford an attorney are entitled to counsel of their choice. 49

-.. · generally suffices to ensure effective assistance, but in Cuyler v. Sullivan50 it did "' The defendant's own attorney made him the "fall guy" for his co-defendants .

- :lends" of his co-defendants hired the same attorney to represent all three of them. - _.,. defendant's case came to trial first and his attorney put on no evidence. As a result,

.3 defendant was convicted while both of his co-defendants were acquitted. He sub- uently brought a habeas corpus petition based on ineffective assistance of counsel.

-::e Supreme Court granted the petition, rejecting the state's argument that because the ~-endant was represented by retained counsel, he had only himself to blame. The

:.rrt wrote:

The v ita l guarantee of th e Sixth Amendment would stand for little if t he often nin form ed d e c isio n to reta in a p artic ul ar lawyer cou ld red uce o r fo rfe it th e

d efe ndant's e ntitlement to constitutional p rotection. Since the State's conduct of a c rimi nal trial itself implicates t he State in the defendant's conviction, we see 'IO basis for drawing a d ist inction between retained and appointed counse l that w o ul d deny e qua l ju stice t o def e nda nts w ho have to choose t heir own a w yers.

Claims of ineffective representation can be raised on appeal and also through as corpus review. 51 Although numerous claims are lodged each year, few are d meritorious because the defendant must prove not only that ( 1) counsel's per-

=mance was deficient (i.e., fell below reasonable professional standards), but also - 2) the outcome would probably have been different had the representation been

uate. 52

The first requirement is difficult to satisfy because courts start with a strong pre- ti on that there are a wide range of professionally competent ways to defend a

· al case, and that counsel's performance fell within that range. 53 To overcome this __ :nnption, the defendant must convince the court that the acts or omissions corn-

e d of resulted from neglect or incompetence rather than a reasonable defense ·egy gone awry. :be second requirement calls for proof of prejudice. The defendant must · I ish the existence of a reasonable probability that he woul d have been acqu it- r received a lighter sentence but for counsel ' s unprofessional errors. 54 When

e ·idence against the defendant is overwhelming this is impossible, even though --el' s errors may have caused the prosecu tion's case to appear stronger than it

· w as. 3 ecause of the heavy burden defendants face, claims of ineffective represen- ~ generally succeed only in the most clear-cut cases, such as where counsel _:ents co-defendants with conflicting interests, making effective representation

- rh impossible, 55 fails to challenge admissibility of clearly inadmissible, 56 or ·o present clearly exculpatory evidence during the penalty phase of a capital

418 CoNSTITUTIONAL LAw FOR CRIMINAL JusTICE

§ 8.6 Sixth Amendment Restrictions on the Conduct of the Police

The Sixth Amendment right to counsel places two restrictions on the police. spring into existence immediately upon initiation of prosecution. First, police secure a valid waiver of the right to counsel or see to it that counsel is present be:': conducting critical stage interrogations, lineups, showups , or other investig- -- - encounters that require the presence of the accused. Second, police must abstain improper interference with the attorney-client relationship.

A. Investigatory Interactions with Defendants After Prosecution Has Been Commenced

The Sixth Amendment requirements for interrogations, lineups, and sho" conducted after initiation of prosecution are straightforward. Police must admi rlli· · Miranda -type warnings and secure a knowing, intelligent, and voluntary wai \" e:- the right to counsel. 58 If the defendant invokes the right to counsel, police IL postpone the proceedings until counsel is present. They must adhere to the s procedures during critical stage interrogations as during Miranda custo interrogations. 59

1. Police Responsibility to Provide Counsel

If the defendant, having been warned of her Sixth Amendment right to couns expresses a wish to have counsel present during a critical stage event, the police respect this wish. Police department procedures specifY what officers must do to se appo inted counsel for defendants who lack the means to hire a lawyer on their o Indigent criminal defendants are not entitled to counsel of their choice .60 Repre se.G - tion is usually provided by a public defender. If the defendant has the means to re a lawyer, police must wait for the defendant's counsel of choice to arrive before start!=.= the procedure. 61 However, the police do not have to wait forever. If the lawyer - defendant retains fails to arrive after a reasonable waiting period or if urgent eire stances require immediate action, police may secure appointed counsel to provide te=- porary representation and go on with the procedure. 62

2. Participation by Counsel

The degree to which the police must allow defense counsel to play an active r' varies with the procedure. With lineups and showups, counsel is present to observe Ll:.~ manner in which the procedure is conducted so that she will be in a position to obj to testimony at the trial if it was improperly conducted. 63 Police do not have to com with counsel's objections, but if a slight modification will satisfY the objection avert a later challenge at trial, they would be foolish not to comply. 64

RIGHT TO COUNSEL 419

~uspects are also entitled to have counsel present during critical stage interroga- -. The purpose for counsel's presence is to ensure that his client understands his -. participates voluntarily, and does not say things that will make defense of his

.,. rrnpossible. The suspect must be allowed to consult with his lawyer in private. The ~ is entitled to call the shots on the degree of participation. The lawyer can limit

~ ects that can be covered, object to particular questions and instruct the client answer them, and end the interrogation at any time. 65

Improper Interference with the Attorney-Client Relationship

- onfidentiality is of utmost importance in the attomey~lient relationship and is essen- effective assistance of counsel. Police must refrain from improper intrusions into the _'-Client relationship, such as surreptitiously monitoring or recording private conver-

intercepting telephone calls,67 or inducing disloyalty.68 Conduct like this will lead sion ofevidence69 and, in extreme cases, dismissal ofthe criminal charges.70

- ing discussed the right to counsel in this chapter and its application to interro- - in Chapter 6, we will now consider its application to pretrial identification

~-=--=s . However, the Sixth Amendment is not the only constitutional provision _!.ie s. The rest of this chapter discusses the various constitutional provisions that

--~-~pretrial identification.

Pretrial Identification Procedures

_ ·at identification procedures are used for two main purposes: to verify that -"" have apprehended the right person and to generate evidence for use at -~e use three separate procedures: (1) photographic identifications (the ..: shown a photograph of the suspect, either alone or as part of a photo _ showups (the suspect is presented to the witness for a one-on-one show-

) lineups (the suspect is exhibited to the witness, along with stand-ins --ss similar physical characteristics, to determine whether an identification can ~ach procedure fulfills a different law enforcement need. Figure 8.1 shows -~ for each. Photographic identifications are mainly used to narrow the focus

. stigation when the witness and the police are uncertain of the offender's wups are used when the suspect is apprehended close in time to

- d swift action is required to confirm that the police have apprehended ::crson." Lineups are used to confirm that the police have apprehended the

·· when police are not in a rush. The suspect has already been appre- - ·- in custody and police are trying to build a case against him for trial.

edures, when conducted in conformity with the Constitution, generate : can be admitted at trial. A positive eyewitness identification made · e crime furnishes convincing evidence of guilt.

~ :he faith jurors place in eyewitness testimony, extensive published eals that eyewitnesses often make mistakes and that their mistakes have

420 CONSTITUTIONAL LAW FOR CRIMINAL JuSTICE

sent many an innocent person to prison. A noted researcher writes that ·· · - eyewitness identification is the single largest source of wrongful convictions ognizing this, the Supreme Court has crafted several constitutional doctrine to minimize the risk of police-induced mistaken identifications. DependiL.= circumstances, admission of pretrial identification testimony may be challenge_ four separate constitutional provisions-the Fifth and Fourteenth Amen process clauses, the Sixth Amendment right to counsel, and the Fourth Am~--­ search and seizure clause. The Fourth Amendment search and seizure claus"' Fifth and Fourteenth Amendment due process clauses apply to all pretrial i tion procedures, while the Sixth Amendment right to counsel applies only and showups , and is further limited to those conducted after a prosecution ~ initiated. Figure 8.2 summarizes the requirements laid down by each provi ·

Figure 8.1 Main Use of Each Identification Procedure

Identification Procedure

Photographic Identification

Main Use in Law Enforcement

Used to narrow the focus of an investigation in which the witness and the police are uncerta i offender's identity.

Showup identification Used w hen the suspect is apprehended close i the crime and swift action is necessary to confi the police have apprehended the right person.

Lineup Identification Used to confirm that the police have apprehende:: right person when they are not in a rush. The pers::::.-- already been arrested and is in custody and po! seeking to build a case against him for trial.

Figure 8.2 Constitutional Requirements for Pretrial Identification

Procedure

Photog raphic identification

Fourth Amendment Restrictions 1 Due Process Requirements

Identification testimony will be suppressed if the identification was made from a photograph obtained through a premedi- tated violation of the Fourth Amendment committed to obtain the photograph, but the witness will be permitted to make an in-court identification if the identification is based on inde- pendent recollections acquired at the time of the crime.

Police must: ( 1) select an identifica- tion procedure that is appropriate under the circum- stances and (2) avoid unnecessary suggestiveness in conducting the procedure.

Sixth A me Requi.·e--

inap

... p

- -

RIGHT To CouN SEL 421

Pretria l identification testimony Same as above . The Sixth will be suppressed if the identifi- Amendment cation was made while the sus- app li es only to pect was illega lly in police showups con- custody, but the witness will be ducted after a llowed to identify the suspect initiation of in court if the courtroom identi- prosecution . fication is based on indepen- Before con- dent recol lections acquired at ducting a criti- t he time of the crime. cal stage

show up, pol ice must e ither obtain a wa iver of the right to coun- sel, (2) sec ure appointed counsel, or (3) wait for retai ned coun- sel to arrive.

Same as above. Same as above. Same as above .

-Fourth Amendment Limitations on Admission of Pretrial Identification Testimony

- e Fourth Amendment exclusionary rule applies to witness identification testi- .- well as physical evidence. Testimony concerning a positive out of court iden-

. m will be suppressed if it constitutes the fruits of an illegal arrest or detention. 72

d entifications are rarely vulnerable to challenge on this ground. The only way - :.rrth Amendment could be implicated is if the police make a bogus arrest to -:: the suspect 's photograph. Evidence of a positive identification made from a 91ph acquired this way would be suppressed. 73

-~ Fourth Amendment is more likely to be an issue with lineups and showups -e3 police must seize the suspect to perform the procedures. A lawful arrest carries

-~__...· c authority to compel participation in all witness identification procedures . 74

.!led participation infringes on only one interest protected by the Fourth ent-the suspect's interest in freedom of movement. 75 Because probable cause

.:mest justifies infringement, authority to compel participation in lineups and -s arises as an automatic incident of a lawful arrest. 76

422 CoNSTITUTIONAL LAw FOR CRIMINAL JusTicE

Police authority is more limited during Terry stops. Showups are permitted,- lineups are not because they occur at the police station, a location off-limits to during Terry stops. 78

A positive lineup or showup identification that derives from an illegal sei~ inadmissible as evidence.79 A witness who makes an inadmissible out-of-court ide fication will also be barred from identifying the defendant in the courtroom unless judge finds that the witness 's ability to make the courtroom identification ste from independent recollections acquired at the time of the crime, and not from ha observed him in police custody after the illegal seizure.80 A violation ofFourthAm~­ ment, consequently, can deprive government of the ability to establish that the de::o dant was the person who perpetrated the crime.

§ 8.9 -Due Process Requirements for Pretrial Identification Procedures

The most important basis for challenging pretrial witness identification mony stems from the due process clause, which prohibits convictions based on liable evidence. 8 1 Experimental memory research has demonstrated that the me of eyewitnesses is capable of being transformed through exposure to suggestive ;~ ences after an event is witnessed.82 Faulty eyewitness identification has sent man_ innocent person to prison. To reduce the risk of wrongful convictions, the due proc_ clause prohibits admission of pretrial identification testimony obtained under cir stances that are so unnecessarily suggestive as to create a substantial ris ·· misidentification. 83

Challenges based on due process grounds are resolved under a two-step a sis. 84 Courts first consider whether the police used an unnecessarily suggestive i tification procedure . If so, the Court next determines whether the unnecess-- suggestiveness created a substantial risk of misidentification. Because people have sharp and clear memories of an event are less susceptible to suggestion, c consider the following five factors in assessing this risk: (1) whether the witnesr -- an adequate opportunity to view the suspect at the time of the crime ; (2) the witn __ degree of attention; (3) the accuracy of the witness's prior description of the susy- ( 4) the level of certainty exhibited at the time of the identification; and ( 5) the ler.= of time between the crime and the identification. 85 The greater the witness's obse:-o tion time and degree of attention, the more accurate the witness 's prior de scrip the higher the witness's level of certainty, and the shorter the interval between crime and the identification, the more likely it is that a court will admit evidence a positive eyewitness identification despite flaws in conducting the identifica procedure. 86 Police, nevertheless, should strive to make their procedures as ace and reliable as possible.

RIGHT TO CouNSEL 423

Choosing the Proper Procedure for Identification

~nnecessary suggestiveness can be introduced in one of two ways- either by .::ing an inappropriate witness identification procedure (i.e., one that is unnecessar- - ggestive under the circumstances) or conducting an appropriate procedure in an _ ~essarily suggestive way. ,..hallenges based on choice of procedures generally involve showups. Showups -e most inherently suggestive of the three identification procedures because only :: rs on is presented for identification, that person is in police custody, and the clear

ation is that the police think "he 's the one. " As a general rule, showups should eel only when police have a strong need for a quick confirmation that they have

_ ended the right person. 87 The ideal case is one in which the showup takes place in time to the crime and the public safety would be threatened if the perpetrator

_ :o remain at large. -uppose that Veronica Victim reports that she has just been robbed at gunpoint by xt tall white man with long green hair and an artificial leg, wearing a T-shirt that - .. Ki ss the Chef." Police dispatch a car to her residence. En route, they spot a man .:ing the description hobbling at his best speed away from her neighborhood and _ end him. This is a proper case for a showup. First, swift action is necessary - of the violent nature of the crime and Veronica's report that the perpetrator was ~ A photographic identification would delay confirmation while a dangerous crim-

:;:mains at large. Moreover, the risk that a showup will induce a misidentification is .: ible because the showup occurred close in time to the crime, the victim furnished ; ed description of a perpetrator who had unique identifying characteristics, the

was apprehended near the scene of the crime, and his unique appearance matched .:rim's description of him. A quick viewing in the immediate aftermath of a crime - ed by the need to determine whether the person detained is the right person while

etrator's image is still fresh in the victim's memory. Rapid identification enables j ce to focus their investigation, enhances the reliability of the identification, and

:::izes the risk that innocent persons will be unjustly detained. : ppose instead that Mrs. Lucy Marbles calls to report that she just discovered that :zed 24-carat gold lawn flamingo is missing. "I kept it in my front yard for years," _ , " and no one ever took it. What's the world coming to?!" After racking her brain -'"ew days, she calls again, this time to report that she knows who has taken it. She ;s it was taken by a man who briefly came to her door a week ago and offered to -a- driveway "for cheap." Her description of the man, a 5 feet 4 inches white male :nustache, matches many ofthe usual suspects known to local police, including Sticky-

- _ Sam. Under these circumstances, it would be inappropriate to use a showup iden- -~_._ . ..,.. First, there is no urgency. The crime is not a violent one, the public safety is not

and the police have no special need to know whether Sam is the perpetrator right - ey know where Sam lives and can pick him up any time they want. Because there -.!Sh, a photographic identification will serve the needs of law enforcement equally

424 CoNSTITUTIONAL LAw FOR CRIMINAL JusTicE

well. Moreover, there is a substantial risk that a showup will induce a mistaken :..: tion. Mrs. Marbles viewed the perpetrator briefly a week before and had no ::-· focus attention on his appearance because she was unaware of the theft at + Memories of the facial characteristics of strangers observed momentarily durin;::- encounter tend to fade rapidly. The fact that the police think Sam is the perpe prompt Mrs. Marbles to mistakenly "remember" him. These considerations make of a showup identification a poor choice on these facts.

B. Avoiding Suggestive Measures During Identification Procedures

Unnecessary suggestiveness can also be introduced by the way in which _ dure is conducted. Police must avoid saying or doing things that might infilli witness 's decision. While it is rare for police to point out a suspect and say - caught our man. He 's the one," their conduct can say this as loudly as their 1~= Foster v. California88 is an illustrative case . Police first placed the suspect in :. station lineup along with two other men, both of whom were half a foot sho.-=- suspect was the only one wearing a leather jacket, a characteristic that play nently in the witness 's description of the robber. When the lineup did not ~ 30

positive identification, police arranged a one-on-one confrontation between the and the defendant. The witness continued to be uncertain . A week later, th"' - arranged a second lineup, in which there were five participants. The suspect only person in the second lineup who had also participated in the first lineup . T.:. the witness made a positive identification. The Supreme Court threw the idem:!::....__ testimony out, stating:

The suggestive e lements in this identification procedure made it a ll but inevita:J that Da vi d w ou ld identify petitioner w hether or not he w as in fact "t he mar effect, the police repeated ly said to the witness, "This is the man." Th is procec~ = so underm ined t he reliability of the eyewitness ident ifi cation as to v io late c~"" process.

1. Conducting Photographic Identification Procedures

The United States Department of Justice recently promulgated a series o~ = lines for handling eyewitness evidence. Many of the Justice Department's rec~ dations have been incorporated into the discussions that follow. 89

When conducting a photographic identification, police should prepare - spread that includes at least five photographs in addition to the suspect's. The photograph should be reasonab ly contemporary. The photographs of the fille~ nonsuspects-should match the witness 's description of the criminal rather person the police suspect. However, the fillers should not so closely resemble the _ that even people familiar with the suspect might have difficulty distinguishing ,..._ The photo spread should include only one photograph of the suspect. Rep;::

RIGHT TO CouNSEL 425

- suspect 's picture increases the risk of misidentification by reinforcing that age in the witness ' s mind. It also contains an implied suggestion that the

that the person whose picture is being repeatedly shown is the

tarting the procedure, the investigator should caution the witness that the committed the crime may or may not be in the photo spread, thus eliminat-

... on the witness to select someone. If there are multiple eyewitnesses, offi- conduct separate identifications to prevent them from influencing each

-=oes without saying that police should abstain from saying anything during e that might influence the witness's decision.

:ng a single photograph is occasionally justified.92 A Maryland court, for _ held admission of identification testimony based on the showing of a single _ where the victim had been in the suspect 's presence for more than four - ' ad escaped shortly before the photograph was shown. 93 Police had a second

- howing only the suspect's photograph. There was an outstanding warrant ~ ct's arrest on unrelated charges and the police wanted to know whether the

d identify him and provide information on his whereabouts. Consequently, ~ a legitimate reason for showing a single photograph.

_ s have been described as "the most useful and least questionable witness ·on procedure."94 They are more reliable than photographic identifications

_ ggestive than one-man showups and, consequently, should be employed :easible. ~-er, the reliability of a lineup depends on how it is conducted. 95 Police must - · g the suspect conspicuous. A suspect can be made conspicuous either by

= 51311d-ins whose age, race, physique, etc. , bear no resemblance to the victim ' s of the perpetrator96 or by presenting the suspect in a way that draws attention,

. having only the suspect wear the distinctive clothing worn by the perpetra- eyer, presenting the suspect in ways that draw attention may occasionally be

- e . Suppose that a bank is robbed by a bearded man, and the next day several -- s identify Sticky-Fingered Sam from a photo array of known bearded bank :>olice arrest Sam and place him in a lineup with other bearded men to see =e witnesses will identify him. Unfortunately, Sam shaved his beard before his - e is the only person in the lineup with an artificial beard. Forcing Sam to wear

_ -= beard is permissible, even though it is likely to draw attention to him, because ed the situation that made it necessary to alter his appearance. :~ do not have to go to extraordinary lengths to find stand-ins who look

-pect. 98 They are only required to make a reasonable effort. Police, for exam- -' have no excuse for assembling a lineup in which the suspect is the only

--~erican when this feature is part of the witness ' s description of the perpetra- ~ ·er, if the suspect has a unique identifying characteristic, such as a star-shaped

426 CoNSTITUTIONAL LAw FOR CRIMINAL JusTicE

birthmark or tattoo on his cheek, police do not have to find stand-ins with a ~ characteristic. They nevertheless should try to conceal this characteristic by r, • all lineup participants to wear a bandage covering this part of their face.

C. Consequences of an Unduly Suggestive Identification

Testimony about an out-of-court identification will be suppressed if the identification procedure is so unnecessarily suggestive that it creates a substanti"' lihood of a mistaken identification. 99 A witness who has been exposed to such a dure will, in addition, be barred from making an identification in the courtroom the trial unless the judge concludes that the witness's testimony stems from in- dent recollection acquired at the time of the crime and not from having obser = accused at the suggestive pretrial identification procedure. 100 The amount of ti:- witness was in the presence of the defendant, the distance between them, the 11= conditions, the witness 's degree of attention to the defendant, the accuracy of an: description of the perpetrator by the witness; the witness 's level of certainty at ±~ trial identification, and the length of time between the crime and the tainted id tion are among the factors the judge will consider in deciding this. 101 However. ~ the judge permits the witness to make an identification in the courtroom during tt.= defense counsel can argue to the jury why it should distrust this testimony. Tr- matter what the judge decides , an unnecessarily suggestive pretrial identifica · weaken the prosecution's case.

§ 8.10 -Right to Counsel During Pretrial Identificati Procedures

The Sixth Amendment guarantees the right to counsel during all "critical ~ Lineups and showups conducted after the initiation of prosecution are regarded ical stage events because improper suggestiveness in the manner in which the dure is conducted might never come to light unless counsel is present as an obse:- The possibilities for suggestive influences during lineups and showups are n and subtle, and effective representation requires that counsel be allowed to obse:- procedure so that she can mount an effective challenge to unreliable witness ide:;. tion testimony at the trial. 103

The same is not true for photographic identification sessions. 104 A photo - can be reconstructed for counsel 's benefit after the fact and any suggestiveness occur can usually be flushed out at the trial through cross-examination. Becaus"" spreads can be reconstructed, counsel 's presence during the actual event is not For this reason, the Sixth Amendment guarantees the right to counsel during stage lineups and showups (i.e ., those conducted after initiation of prosecution). - during photographic identification sessions. 105

RIGHT TO CouNSEL 427

Determining Whether Prosecution Has Commenced

- o be a critical stage lineup or showup, it must take place after prosecution has initiated. 106 The Supreme Court has identified the following actions as initiat-

_co secution: ( 1) a preliminary hearing; (2) the arraignment of the defendant .:ant to an arrest warrant or on charges filed in the form of a criminal complaint; e fil ing of an information by the prosecutor; and ( 4) the return of a grand jury

mn ent. 107 Although the prosecution certainly is commenced by the time any e above events takes place, some states hold that the government commits - :o prosecute at earlier stages 108-even at the time the suspect is booked. 109

::-di ngly, officers should familiarize themselves with the rules in their

r onsequences of Failing to Provide Counsel

_:po lice officers conduct a showup or lineup after prosecution is initiated without · g a waiver or providing counsel, the results can be devastating to the prosecu-

: · t, evidence of the pretrial identification will be excluded from trial, regardless ~.her there was undue suggestiveness. 110 Second, any witness who participates in ::=al pretrial identification is presumptively incompetent to identifY the accused

In accordance with the "fruit of the poisonous tree" doctrine, 111 the prosecution - w by clear and convincing evidence that the in-court identification has a suf-

is in the witness's observation of the accused other than at the pretrial iden- _,_...:.-n.oLL .• 112 If the prosecution cannot meet this burden, and there are no other witnesses

the accused or other evidence proving his or her identity as the perpetrator, will be a complete acquittal.

Summary and Practical Suggestions

Sixth Amendment guarantees those accused of crime the assistance of counsel efense. The right to assistance of counsel includes the right to retain counsel wn choosing, to have counsel appointed, to reasonably competent represen-

to engage in self-representation. right to counsel applies prior to trial during several critical stages, includ-

- ""'reliminary hearing, bail hearing, arraignment, and certain investigative -es. such as critical stage interrogations, lineups, and showups. The Sixth

~-.~---ent right to counsel attaches at the earliest of several events: a preliminary _ :!.I'Taignment of the defendant pursuant to an arrest warrant or on charges

·e fo rm of a criminal complaint, the filing of information by the prosecutor, of a grand jury indictment. State courts, however, sometimes recognize

428 CoNSTITUTIONAL LAw FOR CRIMINAL JusTICE

Pretrial identification procedures can be challenged under three separate c tional provisions-the Fourth Amendment, the due process clause, and the .:: Amendment right to counsel. The Fourth Amendment requires grounds for a - When police have probable cause for arrest, they may conduct either a line-r showup. When they only have reasonable suspicion for a detention, showups at-- allowed. The due process clause regulates the manner in which photographic i cations, lineups, and showings are conducted. They must be conducted in a manG"""' avoids unnecessary suggestiveness conducive to a misidentification. The Sixth A.r;:::::L-.- ment right to counsel applies to lineups and showups that take place after the pre: tion has been initiated. Police must observe warning and waiver requiremen~ abstain from interfering with the attorney-client relationship.

Notes

Powell v. Alabama, 287 U.S. 45, 68,53 S. Ct. 55, 64,77 L. Ed. 2d 158 (1932) (statii:._ the common law, as it existed in England at the time the U.S . Constitution was aciD-_ generally denied counsel to felony defendants); Adam D. Young, An Analysis of the Amendment Right to Counsel as It Applies to Suspended Sentences and Probati Argersinger and Scott Blow a Flat Note on Gideon s Trumpet? 107 DICK . L. R. 69 9 ::. (stating that, while the English common law recognized the right to counsel for indi\-:.:. charged with treason, misdemeanor offenses, and in civil litigation, there was no ri..:: counsel for individuals accused of felonies until 1836).

2 Powell v. Alabama, supra note 1. 3 Jd.; United States v. Ash , 413 U.S . 300, 93 S. Ct. 2568 , 37 L. Ed. 2d 919 (1973) . 4 U.S. CoNST. AMEND. VI (197 1). 5 Powell v. Alabama, supra note 1. 6 See § 8.3 infra. 7 Powell v. Alabama, supra note 1. 8Jd 9 Jd.

10 Johnson v. Zerbst, 304 U.S. 458,58 S. Ct. 1019, 82 L. Ed. 1462 (1938). 11 Jd. 12 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). 13 Jd. 14 Argersingerv. Hamlin, 407 U.S. 321 , 92 S. Ct. 2006,32 L. Ed. 2d 530 (1972) (holding --

in the absence of a waiver, indigent criminal defendants may not be sentenced to incar_ ation for any offense, no matter how petty, unless represented by counsel).

15 Argersinger v. Hamlin, supra note 14; Alabama v. Shelton, 535 U.S . 654, 122 S. Ct. 1- -- 152 L. Ed.2d 888 (2002) (holding that a suspended sentence may not be imposed o- umepresented indigent defendant because the sentences may lead to an actual deprive.:! ofliberty in the future).

16 Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383 (1979) (holding that~':­ is no right to counsel when a fine alone is imposed).

17 United States v. Wade, 388 U.S. 218 , 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).