The Sixth Amendment of the U.S. Constitution guarantees criminal defendants the right to have an attorney present during certain critical stages of the criminal process.  Depending on the type of identification and the time that it takes place, an individual may or may not have the right to have their attorney present.  

Under the Sixth Amendment, a criminal defendant is entitled to the effective assistance of counsel.  The right to an attorney under the Sixth Amendment does not attach until criminal proceedings formally begin against an individual.  

Criminal proceedings typically begin through a formal charge, preliminary hearing, information, indictment, or arraignment.  An arrest does not necessarily signal the beginning of criminal proceedings if the suspect is not formally charged afterwards.  

The Sixth Amendment’s right to counsel applies to all “critical stages” in the criminal process.  The Supreme Court has held that critical stages include arraignment, post indictment line-ups, post indictment interrogation, plea negotiations, and entering a plea of guilty.  

Once formal criminal proceedings have begun against a defendant, the defendant has the right to have counsel present at any post-charge line-up or show-up identification by a victim or witness.  However, if formal charges have not been brought against an individual, that individual does not have the right to have counsel present at a line-up.  

In addition, a defendant is not entitled to have counsel present at a photographic line-up.  A photographic line-up takes place when police show a witness or victim a group of photographs, including one of defendant, and ask the witness to identify the perpetrator of the crime.  However, a defendant’s due process rights may be violated if the method used to obtain the photographic identification was unduly suggestive.  Unduly suggestive methods include all methods where there is emphasis placed on the defendant or where the defendant is in any way highlighted.  

When improper identification procedures violate the defendant’s due process rights, the identification will not be allowed in court as evidence against the defendant.  Additionally, the same witness will not be allowed to make an in-court identification of the defendant unless the prosecution proves, by clear and convincing evidence, that the identification is not the “fruit of the poisonous tree.”  In other words, that the in-court identification is not tainted by the improper out of court identification.  

In determining whether the in-court identification is tainted by the improper out of court identification, the court will consider several factors including the opportunity the witness had to view the perpetrator of the crime and the degree of attention the witness was giving the crime and the perpetrator.  The court will also consider the witness’ description of the perpetrator before the improper line-up and whether the description matches the defendant.  Courts will also consider the degree of certainty exhibited by the witness and the length of time between the crime and identification.  Other factors include whether the witness has identified someone else or whether the witness has failed to identify the defendant in the past.    

Prosecutors and police often, sometimes deliberate and other times not, obtain identification through improper means.  If you have been identified in a line-up of any kind, it is important to discuss these matters with your criminal defense attorney.  If the line-up was illegal or otherwise defective, the identification should be excluded from evidence.