Identification Procedure May Violate Due Process

A procedure for identifying an alleged perpetrator, such as a line-up, may violate the perpetrator’s due process rights if the procedure is: (1) unnecessarily suggestive and (2) creates a substantial risk of misidentification. An experienced South King County criminal attorney will try to prove that the identification procedure used on you may have been invalid.

Under the first part of this test, a court must examine whether the identification procedure was too suggestive and whether the government was excused in not using a less suggestive procedure.

Under both federal law and the law of most states, even if an identification procedure is unnecessarily suggestive, the prosecution may still admit into court a witness’s identification if the prosecution can prove that under the “totality of the circumstances,” the identification was trustworthy. The totality of the circumstances includes the following factors:

  • The witness’s ability to see the perpetrator during the crime;
  • The witness’s attentiveness at the time of the crime;
  • The correctness of the witness’s prior account of the perpetrator;
  • The amount of confidence the witness expresses at the identification; and
  • The length of time between the crime and the identification.

In a few states, once a pre-trial identification procedure is determined to be too suggestive, the identification is not admissible. The prosecution may use a witness’s in-court identification if it can provide a reason for admitting the identification under the five factors listed above.

The second part of the test is whether the identification procedure was so likely to result in an incorrect identification that admitting the identification would deny the defendant due process.

If you’ve been arrested for a crime, do not hesitate to contact experienced South King County criminal attorney for a free initial consultation.