There are various methods in which an eyewitness may identify a defendant. Both in-court and out-of-court identifications may be permitted during a criminal trial. Types of identification methods include:
- lineups
- show-ups
- photo arrays
- in-court identification
However, one of the biggest issues that arises with respect to an eyewitness identification is the reliability of the identification. When an eyewitness testifies during the defendant's criminal trial, the prosecutor must establish that the eyewitness's testimony is reliable. The totality-of-the-circumstances test is used. Numerous factors are considered when determining whether identification testimony is reliable. Such factors include:
- the opportunity and angle from which the eyewitness was able to view the defendant at the time the offense was committed
- the degree of attention paid to the defendant when the offense was committed
- comparison to the eyewitness's prior identification of the defendant
- the degree of the eyewitness's certainty that defendant perpetrated the crime.
- the amount of time that occurred between the commission of the crime and the eyewitness's identification of the defendant.
Protections under the Fifth and Sixth Amendments
The Fifth Amendment protects the defendant from being required to testify at his trial. However, the Fifth Amendment does not protect the defendant against being compelled to:
- provide a blood sample
- provide a handwriting sample
- appear at a lineup.
Such identifying characteristics are not protected under the Fifth Amendment. Real or physical evidence may be admitted against the defendant and such admission does not violate the defendant's right to be free from compelling communications or testimony.
The Sixth Amendment ensures that the defendant is entitled to the assistance of counsel at certain junctures during the criminal process. The defendant is entitled to the assistance of counsel at a lineup after the defendant has been charged with an offense. The defendant may waive this right either after Miranda warnings have been received or with an actual waiver of his right to counsel. The waiver must be free, knowing and voluntary. However, the Sixth Amendment does not provide that the defendant is entitled to assistance of counsel during a photo array or when taking a blood or handwriting sample.
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