Under due process, which statement accurately describes when a pretrial identification is unconstitutional?

Under due process, which statement accurately describes when a pretrial identification is unconstitutional?

• A. It is suggestive and creates a substantial likelihood of misidentification.
• B. It occurs after the defendant is charged.
• C. It uses a photo array.
• D. It is always admissible.

Answer: (A)

The essential idea is that a pretrial identification runs afoul of due process when the procedure is unduly suggestive and, as a result, creates a substantial likelihood of misidentification. That standard comes from cases that teach courts to balance reliability against the way the identification was conducted. If the lineup or showup is arranged in a way that points to the defendant or otherwise biases the witness, and the identification is likely to be mistaken, the identification is unconstitutional and should be excluded. Timing or the use of a photo array isn’t itself unconstitutional; a pretrial identification can be admissible if the procedure wasn’t unduly suggestive and the identification is reliable. Conversely, saying it’s always admissible is incorrect because an unduly suggestive procedure that risks misidentification can violate due process.

The essential idea is that a pretrial identification runs afoul of due process when the procedure is unduly suggestive and, as a result, creates a substantial likelihood of misidentification. That standard comes from cases that teach courts to balance reliability against the way the identification was conducted. If the lineup or showup is arranged in a way that points to the defendant or otherwise biases the witness, and the identification is likely to be mistaken, the identification is unconstitutional and should be excluded. Timing or the use of a photo array isn’t itself unconstitutional; a pretrial identification can be admissible if the procedure wasn’t unduly suggestive and the identification is reliable. Conversely, saying it’s always admissible is incorrect because an unduly suggestive procedure that risks misidentification can violate due process.