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This article focuses on the constitutionality of show-up identifications. Show-ups are different then line-ups. A show up deals with a defendant being identified while in custody of police immediately following a crime. A show up usually involves a victim being brought to an arrested defendant in a police car and asked to identify the defendant from a short distance away.
The landmark case involving due process challenges of show up procedures is Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967) The Stovall Court stated that show up procedures are ''widely condemned''. However, it nevertheless held that show ups without the presence of counsel were permissible, if circumstances were sufficiently imperative to warrant them. Stovall itself involved a post-arrest display where, arguably, the right to counsel attached. Regardless of that violation, and regardless of the suggestivity inherent in the showing of a single person, the Court determined that a totality-of-the-circumstances test for reliability would govern the Due Process challenge to the admission of the out-of-court identification. 87 S.Ct. at 1972 (''a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it, and the record in the present case reveals that the showing of Stovall to Mrs. Behrendt in an immediate hospital confrontation was imperative''). The requirement that the need for the show-up be ''imperative'' has been loosely applied. The ''imperative'' can be found in having a prompt solution (or attempted solution) to a recently-committed crime (and, theoretically, the prompt release of a detained person). As the Seventh Circuit in United States v. Funches, 84 F.3d 249, 254 (7th Cir. 1996) has explained in detailing situations where a one-person show-up is permissible: Where exigent circumstances exist, such as where the identifying witness may not survive until a line-up can be arranged, a show-up may be a proper. We have also recognized that immediate showups can serve other important interests. For example, show-ups ''allow identification before the suspect has altered his appearance and while the witness' memory is fresh, and permit the quick release of innocent persons.'' In our view, such considerations will justify a show-up in a limited number of circumstances, such as where the police apprehend a person immediately after the crime and in close proximity to the scene. Even when this threshold is not met, the resulting identification will be suppressed only if it is unreliable Stovall. This “unreliable” exception the Supreme Court carved into the law makes it virtually impossible for a Defendant identified in a show-up identification to overcome the reliability factors. This cannot be more evidenced then in the instant case where the Defendant, standing in handcuffs minutes after a robbery, could only be identified by the victim of the robbery by the clothing he was wearing, and the Defendant was not wearing the same shirt as the perpetrator of the crime. When the a Defendant is so weakly identified by clothing only, that should have triggered the unreliable prong of the Stovall case, however it did not, nor does it for virtually any Defendant identified in a show-up identification under the current law. In most cases, there simply was no exigent reason to subject a Defendant to an emergency show-up identification. While it was convenient for the police and the victim to conduct a show-up at the time they chose to do so, “inconvenience” is not exigency. Commonwealth v. Austin, 657 N.E.2d 458, 460 (Mass. 1995). Commonwealth v. Blake, Nos. BRCR2006-0851 & BRCR2006-0852, 2007 WL3104405, at *8 (Mass. Super. Ct. Aug. 10, 2007) (citing Commonwealth v. Martin, 850 N.E.2d 555 (Mass. 2006)). 97 See Blake, 2007 WL 3104405, at *5 (permitting the use of a show-up because assembling a photo array “would have taken about an hour to an hour and a half”); Martin, 850 N.E.2d at 561 (permitting the use of a show-up because assembling a photo array “would be unnecessarily burdensome”); Commonwealth v. Martinez, 857 N.E.2d 1096 (Mass. App. Ct. 2006) (permitting the use of a show-up because assembly of a photo array would have taken additional time); Commonwealth v. Sylvia, 781 N.E.2d 46 (Mass. App. Ct. 2003) (permitting same). Why the law needs to be revisited and modified? Show up identifications are inherently unreliable however eye witness identifications substantially increase the likelihood that a Defendant will be found guilty of a crime charged. One of the best independent studies on this topic is found in a mock psychological study of prospective jurors dealing with different eyewitness evidence. Three sets of jurors were provided the same overall facts. One group was told that no eyewitness existed, and only 18% voted to convict. Another group heard a store clerk testify that he saw the defendant commit the crime, and 72% voted to convict, despite the defense lawyer’s argument that the clerk was mistaken. Amazingly, when the third group learned that the store clerk “was legally blind and not wearing his glasses at the time” of the crime, an incredible 68% of the jurors still voted to convict. This demonstrates how willing jurors are to simply accept eyewitness testimony without any critical evaluation whatsoever. Amy Luria, Showup Identifications: A Comprehensive Overview of the Problems and a Discussion of Necessary Changes, 86 NEB. L. REV. 515, 516 (2008) (discussing Aldert Vrij, Psychological Factors in Eyewitness Testimony, in PSYCHOLOGY AND LAW: TRUTHFULNESS ACCURACY AND CREDIBILITY 105, 106 (Amina Memon, Aldert Vrij & Ray Bull eds., 1998)). Because of the inherent danger of unreliability in a show-up identification, a Court has to find whether an exigent circumstance existed that was so critical to preclude a photo array lineup or a actual lineup. The court cannot simply rely on the unreliability factors of Stovall any longer because that test has become so diluted there is absolutely no due process protection to someone being subjected to a show-up identification. Courts have the opportunity to strengthen the constitutional rights intended by Stovall but judicially diluted over the decades. It can do that by setting a solid exigency requirement for police and law enforcement to follow. Show-up identifications should be rare, even hated by this Court, but when they are employed it should only be in situations warranting such an emergency procedure that is likely to result in a overly suggestive unreliable identification. Alternatively, if a Defendant is identified via a tainted show-up identification, which virtually all are, the entire defense of an accused is undermined by the overwhelming prejudicial effect of the weight of eye-witness identification the human psychology of such a tainted identification.