NCJ Number
66215
Journal
FBI Law Enforcement Bulletin Volume: 49 Issue: 2 Dated: (FEBRUARY 1980) Pages: 23-27
Date Published
1980
Length
5 pages
Annotation
JUSTIFICATION FOR THE PRESENCE OF THE DEFENSE ATTORNEY AT A POLICE LINEUP, SUGGESTIONS THE ATTORNEY MAY MAKE REGARDING THE COMPOSITION OR CONDUCT THE LINEUP, AND ATTORNEY PARTICIPATION ARE DISCUSSED.
Abstract
IN 1967, THE U.S. SUPREME COURT HELD IN UNITED STATES V. WADE THAT A DEFENDANT IS ENTITLED TO THE PRESENCE OF A DEFENSE COUNSEL WHEN THE DEFENDANT MUST APPEAR IN A POLICE LINEUP. PRESENCE OF COUNSEL IS REQUIRED TO MINIMIZE THE LIKELIHOOD OF MISIDENTIFICATIONS AND TO ENABLE COUNSEL TO INTELLIGENTLY CHALLENGE SUBSEQUENT IDENTIFICATION TESTIMONY. IF DEFENSE COUNSEL IS DENIED A PROPER ROLE TO COUNSEL ENSUES, WHICH CAN RESULT IN THE SUPPRESSION OF EYEWITNESS TESTIMONY. IF COUNSEL FAILS TO APPEAR, OFFICERS SHOULD ATTEMPT TO SECURE A WAIVER OF COUNSEL FORM FROM THE ACCUSED OR LOCATE A SUBSTITUTE LAWYER. IF THE SUSPECT REFUSES TO WAIVE COUNSEL AND SUBSTITUTE COUNSEL IS UNAVAILABLE, A 'PHOTO LINEUP' IS A POSSIBILITY. ATTORNEYS SHOULD BE ALLOWED TO MAKE SUGGESTIONS REGARDING THE COMPOSITION AND CONDUCT OF THE LINEUP PRIOR TO ITS COMMENCEMENT. AFTER THE LINEUP HAS BEGUN, ATTORNEYS SHOULD FUNCTION AS OBSERVERS ONLY. THEY SHOULD NOT BE PERMITTED TO CONVERSE WITH LINEUP PARTICIPANTS OR WITNESSES OR TO DISRUPT THE LINEUP. WITNESSES ARE ADVISED TO MAKE THE IDENTIFICATION ATTEMPT DURING THE ACTUAL CONFRONTATION, WHEN DEFENSE COUNSEL IS PRESENT. HOWEVER, IF THE ATTEMPT AT IDENTIFICATION TAKES PLACE LATER IN THE POSTLINEUP INTERVIEW, THE DEFENSE ATTORNEY MAY BE EXCLUDED. THE PROSECUTION IS UNDER NO CONSTITUTIONAL DUTY TO FURNISH TO THE DEFENSE THE NAMES AND ADDRESSES OF LINEUP WITNESSES. FOOTNOTES ARE PROVIDED. (AUTHOR ABSTRACT MODIFIED--LWM)