Defendants in Nevada criminal cases can certainly request that they participate in a lineup, but law enforcement has no obligation to comply. A defendant can also seek a court order that that police conduct a live lineup.
In some cases that can help exonerate the accused, when witnesses are not able to identify him or her under the test of a properly-conducted lineup.
1. What is a police lineup?
A lineup is when a witness in a criminal case views a group of several individuals in the hopes that the witness will be able to pick out the suspect from the group. Lineups can be conducted live with the individuals — containing the suspect an three or four “fillers” — lining up against a wall behind a one-way mirror. Or else law enforcement can show the witness a series of photographs of various individuals.
2. Are lineups reliable?
Often, no. Sometimes the witness may wrongly identify an innocent person in the lineup as the suspect. Sometimes the police officer — either inadvertently or intentionally — will signal or pressure the witness to pick out a particular person. And sometimes the witness’s memory is not clear enough to make a reliable identification.
3. What rights do suspects in a lineup have?
Some of the rights criminal suspects in a lineup have include the following:
3.1. Right to counsel
A criminal suspect has a right to a lawyer present during an in-person lineup. But note that the right to have an attorney present does not extend to photo lineups.
3.2. Right to freedom from substantial likelihood of misidentification
Lineups are supposed to contain people who resemble the witness’s description. If all the “fillers” appear different from the description, then that unfairly increases the odds that the witness will pick out the suspect simply because no one else remotely matches the description.
3.3. Right to freedom from suggestion
Police are not supposed to push witnesses into identifying one person in the lineup over the others. Even if the witness picks out a “filler” who the police know had nothing to do with the case, the police are not supposed to mention it to the witness or pressure the witness to choose the actual suspect.
4. What can defendants do about unfair lineups?
If a criminal defendant was deprived of his/her right to counsel, freedom from substantial likelihood of misidentification, or freedom from suggestion, then the defense attorney can file with a court a motion to suppress the lineup as evidence. In the judge agrees that the lineup was biased, suggestive, executed improperly, or was otherwise illegal, then it can exclude the lineup from evidence. This may weaken the D.A.’s case against the defendant.
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- U.S. v. Wade, 388 U.S. 218 (1967)(“The post-indictment lineup (unlike such preparatory steps as analyzing fingerprints and blood samples) was a critical prosecutive stage at which respondent was entitled to the aid of counsel.”).
- U.S. v. Simmons, 390 U.S. 377 (1968)(“Each case involving pretrial initial identification by photographs must be considered on its own facts, and convictions based on eyewitness identification at trial following such pretrial identification will be set aside on the ground of prejudice only if the pretrial identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”).
- Neil v. Biggers, 409 U.S. 188 (1972)(“Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous.”).