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Answer the question minimum of 250 words. Use provided material (PDF book) as well as one other source to answer question. Reference/cite in APA formatt. Hall, D. (2015). Criminal law and procedure (7th
ed.). Stamford, CT: Cengage Learning1.) Crime scene television dramas and other similar shows have glamorized the ability for law enforcement to make miraculous evidentiary discoveries and solve crimes through the use of science and technology. Are line-ups, show-ups and the use of photo arrays a thing of the past? Are they still vital tools for law enforcement investigators? Explain and support your argument either for their continued use and/or importance, or their discontinued use.Reply

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504   Part II Criminal Procedure
information or access to their systems for the government to collect data. In others, the
government has obtained FISC orders. In recent years third-party authority has been
scrutinized in the context of metadata, or non content information. An example of
metadata is the government’s collection of phone numbers dialed but not the content
of those conversations. In its review of an application for an order to capture a huge
amount of “telephony metadata,” FISC ruled in 2013 that such intelligence gathering is
analogous to the phone records sought in Smith v. Maryland.37 In that case the Supreme
Court held that when an individual dials a phone number he is transmitting the data
to a third party, the telephone company, and as a consequence loses his privacy in the
number he dialed. For this reason the acquisition of the number dialed, but not the
content of the call, does
FISC held that
L not raise implicate the Fourth Amendment.
this conclusion is not changed because of the size of the data request. The amendments
I earlier empowered the Foreign Intelligence Surveillance Court
to the FISA mentioned
to review and approveD
programs that collect metadata, in addition to individual orders
of surveillance.
One particularly D
controversial authority created by the Patriot Act is the National
E subpoena, the government is empowered to demand nonSecurity Letter. Without
content data from Internet
L service providers, communication companies, and businesses about their clients. Again, non content data include web sites visited, telephone
L addresses. Thousands, in some years tens of thousands, of
numbers called, and e-mail
NSLs have been issued
, yearly since 9/11. NSLs come with a “gag” order. That is, the
recipient of the NSL is ordered, under criminal penalty, to not disclose to anyone, including the client who is named in the NSL, that the letter has been received. A federal
T and other provisions of the NSL law to be contrary to the First
district judge found this
Amendment’s protection
I of free speech and the Fourth Amendment in 2013.
FISC is aimed at foreign governments and its agents, abroad. As you can see, the
F States to spy on U.S. persons abroad is limited to when U.S.
authority of the United
persons are acting asFforeign agents and when engaged in terrorism. If the United
States wants to conduct a search within the United States, the Fourth Amendment and
Aalready learned apply, even if the underlying offense is a viola­Title III rules you have
N law. If the government acquires otherwise protected infortion of a national security
mation during an otherwise
Y legitimate surveillance, the information is to be destroyed
unless the contents indicate a threat of serious bodily harm or death to any person.
An extended discussion of national security law is beyond the scope of a criminal
law and procedure text.
1 Be aware, however, that many other statutes, executive orders,
and judicial decisions exist defining this rapidly evolving area of law.
Pretrial Identification
T use a variety of techniques to identify a person as a criminal,
Law enforcement officers
such as eyewitness identifications,
fingerprinting, blood tests, and, recently, deoxyriboS
nucleic acid (DNA) tests. The use of any of these procedures raises certain constitutional
issues, such as the right to be free from self-incrimination and the right to counsel.
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 13: Interrogation, Electronic Surveillance, and Other Police Practices   505
There is also another concern: reliability. Eyewitness identification, though powerful, has a few inherent problems. First, each person will testify to his or her perception
of an event, and people often perceive the same event differently. Second, not every
person will use the same language to describe what was witnessed. Third, a witness may
simply have a faulty memory and unintentionally testify to an untruth. Fourth, for a
variety of reasons, a witness may intentionally lie.
Scientific testing may also prove to be invalid or unreliable. How accurate is the
test when performed properly? Was the test performed properly in this case? Is the
evidence tested actually the defendant’s? These types of questions are asked of expert
witnesses who testify to the results of scientific testing. This discussion begins with
eyewitness identification procedures.
D a key piece of evidence in criminal
An eyewitness’ identification of an offender is often
cases. It is generally regarded that eyewitness testimony
is one of the most persuasive
forms of evidence that can be presented to jurors.
Fairness in Identification
There are two competing values concerning the reliability of evidence at trial. The
L is constructed around the jury
first concerns the nature of the jury trial. The system
as the finder of fact. In the extreme, jurors should
, hear all evidence and be trusted to
Eyewitness Identification
distinguish between the reliable and unreliable. The other value is one of fair process,
as enshrined in the due process clauses. Due process demands that seriously unreliable
evidence with withheld from a jury.
The Supreme Court has issued several decisions
I that are intended to establish the
balance of these competing values. In Stoval v. Denno, 388 U.S. 293 (1967), the Supreme
F Fifth and Fourteenth Amendments
Court found that the Due Process Clauses of the
prohibit identifications that are so unnecessarily suggestive
that there is a real chance of
misidentification. In addition to being impermissibly suggestive, an identification must
be unreliable to be excluded.40 Wade illustrates these concepts as applied to lineups.
338 U.S. 218 (1967)
The question here is whether courtroom identifications of an accused at trial are to be excluded
6 from
evidence because the accused was exhibited to the
8 conwitness before trial at a post-indictment lineup
ducted for identification purposes without notice
T to
and in the absence of the accused’s appointed counsel.
The federally insured bank in Eustace, Texas,
was robbed on September 21, 1964. A man with a
small strip of tape on each side of his face entered
the bank, pointed a pistol at the female cashier and
the vice president, the only persons in the bank at
the time, and forced them to fill a pillowcase with
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
506   Part II Criminal Procedure
(c o nti nu e d)
the bank’s money. The man then drove away with
an accomplice who had been waiting in a stolen car
outside the bank. On March 23, 1965, an indictment
was returned against respondent, Wade, and two
others for conspiring to rob the bank, and against
Wade and accomplice for the robbery itself.
Wade was arrested on April 2, and counsel was
appointed to represent him on April 26. Fifteen days
later an FBI agent, without notice to Wade’s lawyer,
arranged to have the two bank employees observe
a lineup made up of Wade and five or six other prisD
oners and conducted in a courtroom of the local
county courthouse. Each person in the line wore
strips of tape such as allegedly worn by the robber
and upon direction each said something like “put
the money in the bag,” the words allegedly uttered
by the robber. Both bank employees identified
Wade in the lineup as the bank robber.
At trial, the two employees, when asked on
direct examination if the robber was in the courtroom, pointed to Wade. The prior lineup identifiT
cation was then elicited from both employees on
cross examination. . . . But the confrontation compelled by the State between the accused andFthe
victim or witnesses to a crime to elicit identification
evidence is peculiarly riddled with innumerable
dangers and variable factors which might seriously,
even crucially, derogate from a fair trial. The vagaN
ries of eyewitness identification are well-known; the
annals of criminal law are rife with instances of Y
mistaken identification. . . . The identification of strangers is proverbially untrustworthy. . . . A major factor
contributing to the high incidence of miscarriage of
justice from mistaken identification has been the5degree of suggestion inherent in the manner in which
the prosecution presents the suspect to witness
for pretrial identification. A commentator has8observed that “[t]he influence of improper suggestion
upon identifying witnesses probably accounts for
more miscarriages of justice than any other single
factor—perhaps it is responsible for more such
­errors than all other factors combined.”. . . Suggestion can be created intentionally or unintentionally
in many subtle ways. And the dangers for the suspect are particularly grave when the witness’ opportunity for observation was insubstantial, and thus
his susceptibility to suggestion the greatest.
Moreover, “[i]t is a matter of common experience
that, once a witness has picked out the accused at the
lineup, he is not likely to go back on his word later
on, so that in practice the issue of identity may (in the
absence of other relevant evidence) for all practical
purposes be determined there and then, before the
trial.”. . .
What facts have been disclosed in specific
cases about the conduct of pretrial confrontations
for identification illustrate both the potential for
substantial prejudice to the accused at that stage
and the need for its revelation at trial. A commentator provides some striking examples:
In a Canadian case . . . the defendant had been picked
out of a lineup of six men, of which he was the only
Oriental. In other cases, a black-haired suspect was
placed among a group of light-haired persons, tall
suspects have been made to stand with short nonsuspects, and, in a case where the perpetrator of
the crime was known to be a youth, a suspect under
twenty was placed in a lineup with five other persons, all of whom were forty or over.
Similarly, state reports, in the course of describing
prior identifications admitted as evidence of guilt,
reveal numerous instances of suggestive procedures, for example, that all in the lineup, but the
suspects were known to the identifying witness,
that the other participants in a lineup were grossly
dissimilar in appearance to the suspect, that only
the suspect was required to wear distinctive clothing which the culprit allegedly wore. . . .
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 13: Interrogation, Electronic Surveillance, and Other Police Practices   507
(c o nti nu e d)
Since it appears that there is grave potential
for prejudice, intentional or not, in the pretrial
lineup, which may not be capable of reconstruction at trial, and since presence of counsel can
often avert prejudice and assure a meaningful
confrontation at trial, there can be little doubt that
for Wade the post–indictment lineup was a critical
stage of the prosecution at which [he] was [entitled
to counsel]. . . .
[The Court then concluded that in-court identifications must be excluded if they follow a lineup at
which a defendant is not permitted counsel, ­unless
the in-court identification has an independent
Evidence is not automatically excluded evenD
when police employ an identification
D the trial court is to make an indeprocedure that is unnecessarily suggestive. Instead
pendent determination whether the process wasEunreliable, e.g. created a substantial
likelihood of misidentification. If so, the identification is to be excluded. When makL decision, a court is to examine the
ing the substantial likelihood of misidentification
“totality of the circumstances” surrounding the identification.
Examples of impermisL
sibly suggestive were mentioned in the Wade opinion. For example, if a witness states
, improper to exhibit four black men
that a white male committed a crime, it would be
and one white man in a lineup.
Wade, Stoval, and these other decisions defining
T this area of law were issued in
the 1970s. Subsequently a wealth of research in human memory has called the reliI The problems of unconscious bias,
ability of eyewitness identification into question.
blurred memory, the ways memories are stored F
and retrieved, and the phenomena of
reconstructed memory make memory fallible and often unreliable.
F that are highly accurate, such as
The advent of forensic identification procedures
DNA testing, have been used to establish the innocence
of many people whose convictions were proven, often largely, by eyewitness identification.
Eyewitness identification
played a role in the conviction of as many as 75% of convictions that were overturned
Y convictions, because of eyewitness
through DNA testing.41 The problem of wrongful
misidentification and other causes, is so acute that a non profit group formed to raise
funds, provide legal defense, and support research. The Innocence Project reports that
1 DNA testing since 1989.42
more than 250 people have been exonerated using
Consequently many people have called for5a more critical review of eyewitness
testimony than required by the 1970s decisions.6The Court rejected this position in
Perry v. New Hampsire (2012). The defendant in this case urged the Court to modify
the test from requiring proof police created a suggestive
situation to any suggestive
circumstance, police created or not. The defendant
to the large number of
studies that demonstrate the unreliability of eyewitness identifications in support of
S found that (1) one of the purposes
his position. Rejecting the proposition the Court
of the unnecessarily suggestive rule it had created was to deter police misconduct and
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
508   Part II Criminal Procedure
that extending the protection in the manner suggested would not achieve this goal;
(2) juries should be trusted to determine the reliability of evidence in all but the most
extreme cases; (3) trial judges have the authority, both constitutionally and through
rules of evidence, to exclude evidence that is misleading or prejudicial; and (4) the trial
judge instructed the jury in how to evaluate the reliability of the eyewitness testimony.
Lineups and Showups
■ A group of persons,
placed side by side in a
line, shown to a witness of
a crime to see if the witness
will identify the person
suspected of committing
the crime. A lineup should
not be staged so that it is
suggestive of one person.
■ A pretrial Identification
procedure in which only
one suspect and a witness
are brought together.
A lineup is where the police exhibit a group of people, among whom is the suspect, to a
witness or victim for identification as the criminal. A one-man showup is an exhibition
of one person to a witness or victim for identification as the criminal.
In practice, police first conduct a lineup and then, if the suspect is identified, the
witness is asked at trial to testify that he or she identified the perpetrator of the crime
I if the initial identification is faulty, the subsequent in-court
at the lineup. Therefore,
identification is also faulty.
D Even if the witness is asked to identify anew the perpetrator of the crime, such an identification is tainted by the witness’s earlier identification.
D obviously, are more suggestive of guilt than lineups are. As
One-man showups,
such, they should be E
used with caution. Generally, a one-man showup should occur
soon after the crime (minutes or hours). If there is time to organize a lineup, this is the
preferable method of identification procedure.
The Right to Counsel
Wade mandates that counsel be provided at pretrial lineups and showups. For years
it was unknown whether this meant all pretrial lineups and showups or just those
after the Sixth Amendment
attaches. Kirby v. Illinois, (1972)43 resolved this disT
pute by requiring counsel only after initiation of “adversary judicial proceedings—
I charge, preliminary hearing, indictment, information, or
whether by way of formal
A Fifth Amendment’s privilege against self-incrimination for a
It is not violative of the
­defendant to be compelled
N to appear in a lineup. The privilege against selfincrimination applies to “testimony” and not to physical acts, such as walking, gesturing, measurYwords for identification purposes.44 If a defendant has changed
ing, or speaking certain
in appearance, he or she may be made to shave, to don a wig or hairpiece, or wear a
certain article of clothing.
The question under the Fifth Amendment is whether the act requested is
“communicative.” If 5
so, then the defendant may not be compelled to engage in the
act. If not, the opposite
6 is true.
Today, witness identification
through photo arrays are more common than lineups.
The due process test S
discussed earlier applies to the use of photos; that is, the event
must not be impermissibly suggestive and unreliable. The showing of one picture is
likely to be determined improper, absent an emergency. As is true of lineups, the people
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 13: Interrogation, Electronic Surveillance, and Other Police Practices   509
in the photos should be similar in appearance. Also, a “mug shot” (a picture taken by
law enforcement agencies after arrest) of the accused should not be mixed with ordinary photos of nonsuspects. Nor should the photos be presented in such a manner that
the defendant’s picture stands out.
The Supreme Court has determined that there is no right to counsel at a photo
identification session, either before initiation of the adversary judicial proceeding or
Forensic Identification Procedures
Law enforcement officials may use scientific methods of identification to prove that
a defendant committed a crime. Fingerprinting,Lblood tests, genetic tests (deoxyribonucleic acid, or DNA, testing), voice tests, and Ihandwriting samples are examples of
such techniques.
Such tests are not critical stages of the criminal proceedings, and, accordingly, there is
no right to counsel. There is also no right to refuseD
to cooperate with such testing on Fifth
Amendment grounds, because the defendant is E
not being required to give testimony.
However, if a test involves an invasion of privacy, then the Fourth Amendment requires
probable cause before the procedure may be forcedLon an unwilling defendant.
Confrontation and Cross-examination Clause
L issues are raised when forensic
­experts testify as to what other experts have found or analyzed. See Chapter 15 for a
more thorough discussion of these issues.
Validity and Reliability
Scientific evidence must be reliable before it may be introduced at trial. In a landmark
I 1923), it was held that scientific
case, Frye v. United States, 293 F. 1013 (D.C. Cir.
techniques must be generally accepted as valid and
F reliable by the scientific community to be admissible. Frye was the law from 1923 until the Supreme Court issued
Daubert v. Merrell Dow Pharmaceuticals, 113 S. Ct. 2786 (1993). Daubert changed
the standard of admissibility from acceptance in A
the scientific community to scientific
validity. ­Under this new standard, the trial jud …
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