Also known as: out of court identification · out-of-court identifications · pretrial identification · extrajudicial identification
Written by attorneys · grounded in primary & secondary sources — see below
An identification of a suspect made by a witness before trial through procedures such as a lineup, showup, or photographic array. The procedure triggers Sixth Amendment or due process scrutiny when arranged by police after adversarial proceedings begin or when it is unnecessarily suggestive.
Oswald Orozco stood three feet from an unmasked robber in bright bank lighting for nearly a minute while handing over cash. Two weeks later police presented him handcuffed in a roadside showup. At trial the court admitted his in-court identification after weighing his close-range view, high attention, accurate prior description, certainty, and short time lapse.
Oriana Oberman was indicted for assault. Detectives then assembled ten performers including her for a dimly lit rehearsal viewing by departing stagehands. The witnesses identified her without her lawyer present. The court suppressed the identifications because the post-indictment procedure was a critical stage requiring counsel.
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Olivia Owens was shown a single photograph of a suspect two days after a robbery. She identified the person in the photo. The court admitted the identification because no Sixth Amendment right to counsel attaches when police display photographs rather than a live lineup.
Omar Olson was indicted for robbery. Police then conducted a lineup of six men including him without notifying his lawyer. Witnesses identified him. The court suppressed the out-of-court identification because the post-indictment lineup was a critical stage at which counsel was required.
Odette Orozco viewed a robber at close range under bright lights for five minutes and gave an accurate description immediately afterward. Two days later a detective showed her one photograph of the suspect. The court admitted the identification after finding the reliability factors outweighed the suggestiveness.
Orla O'Malley stood at a window and spontaneously identified a suspect to officers standing nearby. No police procedure prompted the identification. The court admitted the testimony because due process scrutiny applies only when police orchestrate suggestive circumstances.
The right attaches once adversarial proceedings have begun by indictment or information. Any lineup or showup arranged by police after that point is a critical stage requiring counsel. The presence of counsel protects against suggestiveness and preserves the record for cross-examination.
No. The court must determine whether the in-court identification rests on an independent source by weighing the witness's opportunity to view, degree of attention, accuracy of prior description, level of certainty, and time between crime and confrontation.
Due process scrutiny applies only when police arrange unnecessarily suggestive circumstances that create a substantial likelihood of misidentification. Spontaneous identifications not orchestrated by police do not trigger preliminary judicial screening.
Courts evaluate the witness's opportunity to view the perpetrator, degree of attention, accuracy of any prior description, level of certainty at the confrontation, and the time elapsed between the crime and the identification.
…has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification. A commentator has observed that "[t]he influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor—perhaps…