239

Power to Order Lineup—Right to Counsel

It is within the power of a federal grand jury to order a person suspected of crime to participate in a lineup. The lineup in such a case will be a separate investigative procedure; it will not be physically incorporated into the grand jury proceedings. United States v. Larkin, 978 F.2d 964, 968 (7th Cir. 1992); In re Melvin, 550 F.2d 674 (1st Cir. 1977). A lineup is a well accepted investigatory procedure carried out by law enforcement officers having a suspect in custody. It is considered preferable to an individual confrontation for identification purposes. See United States v. Wade, 388 U.S. 218 (1967); Gilbert v. California, 388 U.S. 263 (1967); Stovall v. Denno, 388 U.S. 293 (1967); see also United States v. Funches, 84 F.3d 249, 254 (7th Cir. 1996) (showups appropriate in certain situations). A person has a Sixth Amendment right to counsel at a lineup or showup undertaken "at or after initiation of adversary criminal proceedings--whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Moore v. Illinois, 434 U.S. 220 (1977); Kirby v. Illinois, 406 U.S. 682, 689 (1972). When there has been a lineup or showup in which the right to counsel has been improperly denied, all testimony relating to the out-of-court identification is inadmissible. See Gilbert v. California, supra; Moore v. Illinois, supra. A subsequent in-court identification will also be inadmissible unless the government can establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than at the lineup identification. In determining whether there is an independent source for the in-court identification, the court will consider factors including the witness' opportunity to observe the criminal act, any discrepancy between a pre-lineup description and the defendant's actual appearance, any identification by picture of the defendant prior to the lineup, the failure to identify the defendant on a prior occasion, the lapse of time between the criminal act and the lineup and the circumstances surrounding the conduct of the lineup. See United States v. Wade, supra. [cited in Criminal Resource Manual 244]