Eyewitness Identification: Constitutional Aspects

The prosecution bears the burden of proving that a waiver of the right to counsel at the identification procedure was voluntary and intelligent, and it also bears the burden of proving that an in-court identification was not tainted by an earlier unconstitutional identification procedure, while the defendant bears the burden of showing a due process violation. Normally, a pretrial "suppression" hearing is held to determine whether a constitutional violation occurred and the identification should be excluded. But in Watkins v. Sowders, 449 U.S. 341, 349 (1981), the Supreme Court held that, at least when the defendant makes a due process claim, the admissibility issue may be determined in the presence of the jury, because the issue raised by such claims—whether the identification is reliable—is "the very task our system must assume juries can perform." However, the Court held that pretrial determinations of admissibility "may often be advisable" and perhaps even "constitutionally necessary" if, for instance, the presence of the jury inhibits the attorney's cross-examination of those who conducted the procedure.