Eyewitness Identification: Constitutional Aspects

The classic eyewitness identification takes place in court, with the witness pointing to the defendant and stating "That's the perpetrator." Such identifications are usually preceded by outof-court identifications, using one of three procedures: (1) lineups, in which a witness is asked to pick a suspect out of a line of people; (2) showups, in which a witness is shown just one suspect and asked whether that suspect was involved in the incident at issue; or (3) photo arrays, in which a witness is asked to pick a suspect's photo out of an array of photos. Constitutional challenges to those procedures have focused on four provisions: the Fourth Amendment's prohibition on unreasonable searches and seizures; the Fifth Amendment's prohibition of compelled self-incriminating testimony; the injunction in both the Fifth and Fourteenth Amendments that government not deprive persons of life or liberty without due process of law; and the Sixth Amendment's guarantee of assistance of counsel and the right to confront witnesses. Each of these challenges are discussed below. Also discussed are two other issues: the process for determining whether an identification procedure was unconstitutional and the admissibility of identifications that are the "fruit" of a constitutional violation.