This is archived content from the U.S. Department of Justice website. The information here may be outdated and links may no longer function. Please contact if you have any questions about the archive site.

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]

Updated December 7, 2018