Lineups are considered to be a "critical stage" in the criminal justice process and the prosecution may not admit into evidence in-court identification of defendants based on out-of-court lineups or show-ups if they were obtained without the presence of defendant's counsel. Courts have found that a defendant's counsel is necessary at a lineup because the lineup stage is filled with great potential for both intentional and unintentional errors. Without the defendant's attorney present at the lineup, these errors may not be discovered and remedied prior to trial.
This rule does not apply to other methods of obtaining identifications and other evidentiary material relating to the defendant, including:
In these cases, there is far less chance that the absence of counsel at the time the evidence is obtained from the defendant might lead to a misidentification and prevent the defendant from getting a fair trial.
The Sixth Amendment does not guarantee the presence of the defendant's counsel at a pretrial proceeding unless the physical presence of the defendant is involved. Furthermore, the defendant's presence must be required at a trial-like confrontation at which the defendant requires the advice and assistance of counsel, which would apply to a lineup and some other identification procedures.
The Problem of Misidentification
Eyewitness testimony can be a powerful form of evidence at a trial, but there are many situations where even the most confident eyewitness can mistake the identity of the accused. After all, while observing a crime, an eyewitness often has a very short period of time to observe what's happening, let alone remember specific details of the offender's appearance. In fact, where a weapon is involved, eyewitnesses tend to focus more on the weapon than on the person holding it. A witness then needs to remember what they saw (and not be influenced by their own biases or media reporting about the crime) if they're later called to help law enforcement identify a suspect or to testify in court, which can sometimes be a year or so after the crime took place.
According to the results of one study of inmates later exonerated through DNA testing, 75% of their cases involved eyewitness misidentification. Thankfully in those cases, DNA eventually corrected the mistake, but such misidentification can happen whenever the procedures used by law enforcement are not reliable. For example:
It's precisely concerns over such reliability problems, and their consequences, which created the need for defense counsel in some situations involving witness identifications.
Have Questions About Lineups or Other Identification Situations? Talk to an Attorney
If you're facing criminal accusations, you may soon be involved in the criminal justice process and could be facing a lineup or police interrogation. Don't just rely on the authorities to get it right because mistakes can be made even when the police have the best intentions. Make sure that your rights are protected by contacting an experienced criminal defense attorney in your area.