Eyewitness Identification: Constitutional Aspects

Even an identification made during a properly conducted procedure may be excluded if it is considered the "fruit" of a constitutional violation. But such exclusions are rare. For instance, social science suggests that identifications made during suggestive procedures can taint later identifications. But courts routinely hold that these later identifications are based on an "independent" memory of the criminal event, using the same types of factors that inform the reliability analysis (e.g., opportunity to view the act). Sometimes identification procedures are properly conducted, but the presence of the suspect in the lineup or showup is the result of an illegal detention under the Fourth Amendment, as described above. The resulting identification may be deemed inadmissible "fruit" of the detention, but a subsequent in-court identification will usually be admissible if the judge finds it is based on an independent recollection of the criminal event (United States v. Crews, 445 U.S. 463 (1980)). Because an illegal arrest is not a bar to subsequent prosecution (Frisbie v. Collins, 342 U.S. 519 (1952)), the defendant's presence in court and any untainted identification that occurs there is not unconstitutional.