IDENTIFICATION, BAIL, ASSET FORFEITURE AND OTHER PRETRIAL PROCEDURES

There are quite a number of distinct proceedings and procedures that take place at the pretrial stage, indeed, even before the suspect is formally charged with a crime (i.e., investigative procedures). History, established state actions, and a long line of Supreme Court interpretations have given us a settled procedural law in this area. Determining what part of the Constitution governs pretrial procedures is no easy matter (guarantees regarding lineups, bail, and asset forfeiture are not specifically mentioned in the Constitution). The general thrust is that certain due process and right to counsel safeguards apply in any process that is "critical" (U.S. v. Wade 1967) to the prosecution or "adversarial" in nature. Due process applies directly to any pretrial identification procedure, and the right to counsel applies directly to any adversarial proceeding. It's customary to point out the following Constitutional sources of pretrial procedural protections:

Let's discuss these Constitutional sources in order. The 4th Amendment right to be free from search & seizure does not apply directly, only indirectly, via an interpretation of unreasonableness as invasiveness. The stomach-pumping and blood-extracting cases of Rochin v. California (1952) and Schmerber v. California (1966) best illustrate the Court's reasoning that certain commonplace medical occurrences involving no risk, trauma, or pain are reasonable and can be used to secure evidence without the consent of the person.

The right to 5th and 14th Amendment due process means simply that the procedure must be fair. Courts follow a totality of circumstances approach in determining if something at the pretrial level is fair or unfair, and there have been additional standards developed such as whether a procedure (like a lineup) is "impermissibly suggestive" (Neil v. Biggers 1972). The 5th Amendment safeguard against self-incrimination does not apply to pretrial procedures since the purpose at this stage is to get identification, not testimonial evidence. The Kirby rule (from Kirby v. Illinois 1972) even says that a suspect is not entitled to a lawyer in face-to-face confrontations with victims or witnesses unless they have been formally charged with a crime (a distinction between pre-indictment lineup and post-indictment lineup). Another important 5th Amendment concern is double jeopardy protection, and although "jeopardy attaches" only when the jury has been sworn in or the first witness takes the stand, there are enormous implications for pretrial procedures.

The 6th Amendment right to counsel is generally governed by the Wade-Gilbert rule, which comes from U.S. v. Wade (1967) and Gilbert v. California (1967) which requires that the defendant have an attorney present at any "critical" stage of a criminal prosecution. This includes any identification procedures on a person where there has been an initial decision to charge with a crime. States differ on exactly when the right to counsel triggers; most conclude that filing of a complaint is sufficient; others require the issuance of an arrest warrant. A suspect charged with one offense and only suspected of another offense can be subjected to a lineup on the suspected offense without benefit of attorney.

The 8th Amendment prohibits excessive bail and fines. Note that it does not guarantee the right to bail, only the right to be protected from excessive amounts of money being required. The general rule is that a bail amount or fine is excessive if it is out of proportion to the offense committed (U.S. v. Harper 1989). A court is allowed, of course, to consider the needs of protecting and compensating society and the government (court costs), and it's normal for a fine to be more than the exact amount of damage (for retributive and deterrent purposes), but it's excessive if the fine is, say, $100,000 for an offense involving only $500.

The penalty for any improper identification procedure is exclusion of that evidence at trial, but under some circumstances, the court may allow an in-court identification by a witness previously involved in irregularities if there is clear and convincing evidence that the witness has a source of knowledge independent from the improper procedure. Such sources might include having known the accused beforehand or a strong case being made for reliability of the identification.

IDENTIFICATION

Identification is often the hardest part of a police investigation. In cases where the offender is caught red-handed, there's no identification problem. Nor is there any problem if the suspect confesses. In other cases, the police must rely upon eyewitness identification and testimony, arguably the weakest link in the whole criminal justice process. Best guesses are that about half of all wrongful convictions are the result of eyewitness error. Eyewitnesses are necessary because the rules of evidence often require circumstantial evidence (which may link the offender to the scene of the crime) to be corroborated; and also because there's a constitutional right (albeit not an absolute one) to confrontation by one's accusers - and this means by one's victims and witnesses at the scene. Pretrial confrontation of a suspect with witnesses or victims has long been an established law enforcement practice. It quickly clears anybody under suspicion who is innocent.

As mentioned previously, the Kirby rule governs pre-indictment identifications and the Wade-Gilbert rule governs post-indictment identifications. Let's talk about the pre-indictment stage first. At this point, the suspect is in custody and has not been formally arrested or charged yet. They have no right to a lawyer at this point. They can be compelled to participate in a lineup against their will. Some states give the police statutory authority to do this; other states require getting a court order; and still other states require proof of probable cause to arrest. In any event, the penalties for refusing to participate in a pre-indictment lineup can be severe. It's the same as a contempt of court charge where the subject is held under special judicial orders until they cooperate. When the police need to "round up" the usual suspects off the street to stand for a lineup, they usually get voluntary cooperation or a court order. The court order in this situation uses a balancing test in which the public interests of law enforcement must outweigh the privacy interests of the person picked up.

Now, let's consider a post-indictment identification procedure. At this point, it's clear that the government intends to prosecute because a "complaint" has been filed via an information or an "indictment" has been filed via a grand jury. The identification procedure could also have been delayed for various reasons, and the preliminary hearing may have passed. At this stage, the suspect is entitled to the services of an attorney. The attorney's mere presence does not satisfy the Wade-Gilbert rule. Counsel's purpose is to ensure that any identification procedure is fair, to act as a check on the inherent unreliability of eyewitnesses, and to have firsthand knowledge of what went on in order to conduct an intelligent cross-examination at trial or point out any irregularities at any later suppression hearing. A suspect can waive their right to counsel, and if there's any delay in finding or obtaining the person's lawyer, a substitute lawyer can sometimes be used. An attorney is allowed to make suggestions that might improve the fairness, but in no case is the attorney allowed to control the proceedings in any way. Suspects are allowed to choose their initial position in the lineup and to change that position after every viewing of witnesses one-by-one. A suspect can be required to shave, trim, or grow a beard before participating in a lineup. If any speech or body movement is required, all persons in the lineup should do it. If a one-way mirror is used, there must be compelling reasons (such as witnesses who fear retaliation) for it.

Fairness is not the only consideration. Impartiality is equally important. The Stovall test (from Stoval v. Denno 1967) inquires as to whether the police followed recommended procedures and guaranteed impartiality. This is more than good record-keeping and keeping notes on everything that transpired, it refers to all sorts of circumstances in the sequence of steps taken before the lineup, during the lineup, and after the lineup. For this reason and because freshness is important at all stages in preventing eyewitness error, the Stoval test is especially relevant to show-ups, prompt on-scene confrontations between victim/witness and offender. Show-ups don't violate due process because they are treated in evidence law as spontaneous utterances. The Stovall test looks at whether police made any preliminary statements to witnesses; if the witness statements were spontaneous and positive; and if a critically injured victim (thought to be dying) only has one chance to ID the suspect. Stovall covers all exigent circumstances.

Although the standard of "impermissibly suggestive" has been mentioned previously, the case of Neil v. Biggers (1972) also produced the Five Factors of Eyewitness Reliability test, which is especially relevant to delayed identification situations. Those five factors are:

Another test, called the Biggers-Brathwaite factors (from Manson v. Brathwaite 1977), uses a balancing approach which weighs the five factors of Biggers with the "corrupting" effect of any suggestive procedures. This means that even if police accidentally do something to jeopardize fairness or impartiality, the fact that the eyewitness reliability is still strong would salvage the identification's permissibleness.

Because we've talked about the importance of regular procedures, implying they are tied into the concepts of fairness, impartiality, reliability, and suggestiveness, it might be helpful to list those STANDARD PROCEDURES:

SPECIAL TYPES OF IDENTIFICATIONS

DNA PROFILING -- Depending upon the standard used in each state for scientific evidence, this type of identification procedure is easily accepted or scrutinized rigorously. States with the stricter Daubert standard tend to focus on validity and reliability, with the latter (replicability of results) the key issue. Contamination, tampering, and substitution are also considered, with some of these implying scientific fraud. Generally, the reported match (crime scene match) must be converted to a true match (using population statistics) and expressed as odds like there's a one in 7 million chance that it could be anyone other than the suspect. If defense attorneys cannot attack the reliability, the best defense is to say the trace evidence was left accidentally and innocently before or after the crime. DNA testing also can work well at clearing someone suspected of being a suspect, and it has important implications at DNA exonerations for those falsely convicted.

HYPNOSIS -- Under hypnosis, a witness may relax enough to give a better written description, but most states do not allow the practice because of its unreliability. There's also questions about due process (if the defense can use hypnosis too), and the rules are more lenient for defense use of hypnosis than prosecution use. Suggestibility is an additional concern that is most relevant whenever hypnosis-induced identification is combined with psychotherapy of any sort.

PHOTOGRAPHIC -- Besides lineups and showups, this is the third most common type of police procedure. Witnesses are shown mug shots or photographs to identify or eliminate suspects. Witnesses who delayed in coming forward are also allowed to view videotapes of any previous lineup held for other witnesses that did come forward. If a witness randomly looks through mug shots, it's called a photographic display. If the police select certain pictures for them to look at, it's called a photographic array. With arrays, the Supreme Court has held to a minimum standard of at least six photographs, with only frontal views to be used, and ideally any signs in the photo that someone has been booked as a criminal removed.

POLYGRAPH -- Most states refuse to admit lie detector tests unless admissibility is agreed upon by both parties. Such tests have limited validity and reliability. Operator competence and peer recognition are major issues. From a due process standpoint, the concern is violation of the right against self-incrimination. If polygraphs were used for identification purposes only, that would be less serious a violation than their more typical use in finding out if the offender did it (is lying about it). The use of polygraph to clear someone as a suspect is well-known and an established pretrial defense strategy.

BAIL

The traditional purpose of bail is to ensure the accused's presence at trial. The variable amount of bail is statistically the best predictor of sentence length. Bail set at a figure higher than the amount calculated to ensure the accused's return to court can be construed as "excessive". However, there are five (5) circumstances the court can consider in setting bail:

Bail has been the subject of a reform movement throughout much of the late 20th Century. In 1954, Caleb Foote did a study and found that 75% of people couldn't afford bail. In 1966, the Vera Institute conducted the Manhattan Bail Project which resulted in widespread adoption of the practice of OR or ROR (Release on Recognizance), a promise to appear. In 1984, Congress authorized the practice of preventive detention (denial of bail upon fear of reoffending). The practice of only putting up 10% of the bail amount (and receiving only 90% of this back if appear in court on time) is called the Illinois Plan, and I'm not sure when in the twentieth century this practice started. Reformers regard the bail system as the last remnant of "checkbook justice".

Many times, a judge may release a person on their judicial discretion (pretrial release) and attach conditions, such as promises to remain in the community, refrain from using drugs and alcohol, or attend a rehabilitation program. Such persons are called supervised releases or deferred prosecutions. Third parties, such as relatives, are expected to supervise them.

ASSET FORFEITURE

The process by which the government takes property away from a criminally accused individual is called a forfeiture proceeding, and it's a civil, not a criminal, action. Double jeopardy protections do not apply to later civil proceedings after criminal proceedings. With asset forfeiture, the process is accelerated, under the premise that some criminals regard detention as a regular part of doing business so there should be some stronger tools for law enforcement in getting at the instrumentalities and proceeds of their crime. "Guilt by association" also takes on new meaning, as jointly owned property (like the family vehicle) can be confiscated and auctioned off. This procedure is generally reserved for crimes falling under RICO statutes (Racketeer Influenced Corrupt Organizations), and drug cases qualify. There's been reports of widespread abuses, and it's estimated that probably $3 billion a year are gained, a percentage of it going back to local law enforcement, the rest into federal contingency funds or to pay off the public debt.

PRETRIAL MOTIONS

Motion for Change of Judge -- A request for a different judge.
Motion for Change of Venue -- A request for an out-of-town trial.
Motion for Continuance --This is to delay the trial for a number of reasons.
Motion for Discovery -- This claims the right of the adversary to inspect, review, and copy certain materials held by the opposing party. It includes a list of all witnesses and any alibi evidence.
Motion to Dismiss Charges -- Often the defense will make this motion on grounds that the indictment fails to allege an actual offense, lack of speedy trial, or double jeopardy.
Motion for Double Jeopardy Protection -- While most often seen in the form of a motion to dismiss charges or for a mistrial, double jeopardy really gets at the possible punishments involved. The theory is that the prosecution should get "one fair shot", and "double" is construed as: (1) a second prosecution for the same crime after conviction; (2) a second prosecution for the same crime after acquittal (collateral estoppel doctrine provides that any issue determined in the defendant's favor at trial cannot be relitigated in a later criminal proceeding); and (3) multiple punishments for the same crime (multiple counts in one state or redundant counts in separate states -- dual sovereignty doctrine allows multistate prosecution, but the doctrine of jurisdiction applies in most cases). A retrial is also sometimes allowed if the mistrial is due to "manifest necessity" (e.g., hung jury, paperwork defect). A prosecutor is never allowed to appeal an acquittal, but they may appeal other decisions such as a judge's setting aside a jury's guilty verdict or a ruling on a motion to suppress evidence. The right to be free from a second trial only applies if the second trial is for the "same offense" (the Blockburger rule).
Motion for Habeas Corpus -- This contests the legality of detention. Some states allow a prosecutor to charge an information via a grand jury, all without a preliminary hearing or court approval. In such cases, the motion is a request for a Gerstein-type hearing (from Gerstein v. Pugh 1975) to force a determination of probable cause. In other cases, the motion may be a complaint about conditions of pretrial confinement, being double bunked in an overcrowded jail, for example.
Motion to Impanel a Jury -- This is a request for a jury trial once the person has requested a bench trial and changed their minds. It's also used to request a 12-person jury instead of what the state uses (a 6 or 8-person jury).
Motion for Protective Order -- This is used when a person denying an offense, most likely having declared an alibi, reverses themself and wants to come clean.
Motion to Reduce Bail -- This asks to lower the bail amount, for financial hardship reasons or as a symbolic gesture.
Motion for Severance of Offenses -- This applies when the accused is charged with more than one offense and wants to be tried on each offense separately. It's generally up to the discretion of the judge.
Motion for Speedy Trial -- This is sometimes used to force the prosecution's hand and get a better plea bargain, or for other symbolic reasons.
Motion to Suppress Evidence -- This forces a suppression hearing in which the preponderance of evidence standard is used to decide if certain evidence and supporting affidavits should be excluded at trial because of improper procedures or irregularities. The burden of proof is on the defense except in a consent search situation. Occasionally, the outcome of a suppression hearing is the Orthodox rule, or letting the jury decide admissibility.

MUG BOOKS AND COMPOSITES

The DISPATCHER ROLE should be to ask open-ended or closed-ended questions, and never ask loaded questions like "Was the car red?"

The PRELIMINARY INVESTIGATIVE OFFICER's role should be to verify if any witnesses are present, obtain their identities, separate them, instruct them to avoid discussing details of the incident with other witnesses, broadcast any BOLOs or APBs, and canvass the area.

The PRELIMINARY or FOLLOW-UP INVESTIGATOR will interview witnesses at the crime scene, and/or take some of them back to headquarters to look at mug shots/composites, and/or to participate in showups or lineups. 

When MUG BOOKS are presented, they should always be referred to in front of the witness as a "collection of photographs", never implying any specific grouping by type of crime. One should also make sure that the photos are in pretty much the same format so that no one photo unduly stands out, all are reasonably contemporary and alike. Specific mug book procedures also include: telling the witness that the person who committed the crime may or may not be in the book; suggesting the witness think back to the event and his/her frame of mind at the time; and assuring the witness that the case will still be investigated even no one can be identified from the mug book. Most importantly, the procedure requires that the witness state, in his/her own words, how certain they are of any identification. The whole procedure should be documented or videorecorded. If an identification is made, a written statement should be recorded and then reviewed by the witness for an opportunity to change, add, emphasize, or de-emphasize anything.

When COMPOSITES, artist renderings, or computer sketchings are used, it should be remembered that, by law, they may not rise to the level of probable cause. Think of composites as a way to develop leads. The first consideration is how well the witness has the ability to describe the perpetrator. It's very important that the witness not be shown any photographs before helping develop the composite. Composites should be done in a more distraction-free environment than mug books.

SHOWUPS AND LINEUPS

When circumstances require the prompt display of a single suspect to a witness, this is called a showup, or field identification. The procedure requires an investigator to have a good description of the perpetrator beforehand. Then, witnesses one at a time are taken to where a held suspect is located (not in detention, just being held, as in a show of authority stop).  Each witness is cautioned that the person they are looking at may or may not be the perpetrator. There should be documentation of the outcome, in the witness's own words, as to how certain he/she is.

Lineups must include only one suspect and a minimum of 4-5 fillers (nonsuspects), and photographic arrays require 5 or more fillers. Complete uniformity of features is not required, and the investigator should avoid using fillers who so closely match the suspect to make it difficult. A consistent appearance should exist, however, between all persons in the lineup with respect to unusual features; e.g. scars, tattoos. The suspect should be positioned randomly. Use different fillers with new suspects shown to the same witness. Make sure the suspect does not unduly stand out. 

Lineups require the witness be told that it is just as important to clear innocent persons as to identify guilty parties. They should also be told that the perpetrator may or may not be in the lineup; that police will continue to investigate even if no identification is made; and that procedure requires the witness, in their own words, to state how certain they are. If time has passed between the event and the lineup, police may inform the witness that the suspect may not appear exactly as they did on the date of the incident because head and facial hair are subject to change. Documentation of lineups should be done by photo or video. Afterwards, the witness should be discouraged from talking to the media. 

INTERNET RESOURCES:
DNA Exonerations: Crime Magazine
Eyewitness Identification Recommended Procedures
How The System Works: Truth in Justice Homepage
Pretrial Release FAQ: NAPSA
Vera Institute

PRINTED RESOURCES:
Cutler, B. & S. Penrod (1995) Mistaken Identification: The Eyewitness, Psychology, and the Law. NY: Cambridge.
Ferdico, J. (1996) Criminal Procedure for the Criminal Justice Professional. Minneapolis: West.
Fisher, R. & R. Geiselman (1992) Memory Enhancing Techniques for Investigative Interviewing. Springfield: Charles Thomas.
Hickey, T. (1998) Criminal Procedure. Boston: McGraw-Hill.
Levi, A. & N. Jungman (1995) The Police Lineup: Basic Weaknesses, Radical Solutions. Criminal Justice and Behavior 22: 347-72.
Lindsay, R. & G. Wells (1985) Improving Eyewitness Identification From Lineups. Journal of Applied Psychology 70:556-64.
Loftus, E. & J. Doyle (1997) Eyewitness Testimony. Charlottesville: Lexis Law Publishing.
Technical Working Group for Eyewitness Testimony (1999) Eyewitness Testimony: A Guide for Law Enforcement. Washington D.C.: DOJ/OJP.
Wells, G., M. Leippe, & T. Ostrom (1979) Guidelines for Empirically Assessing the Fairness of a Lineup. Law and Human Behavior 3:285-93.
Wells, G., M. Small, S. Penrod, R. Malpass, S. Fulero & C. Brimacombe (1998) Eyewitness Identification Procedure Recommendations. Law and Human Behavior 22: 603-24.

Last updated: 06/25/03
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