Barry participated at a lineup at a stage in the criminal process where his right to counsel would have attached. However at the time, Barry was not afforded legal representation nor did he waive his right to have one present at the lineup. The prosecutor intends to use the outcome of the lineup—which resulted in the victim identifying Barry as the perpetrator—at trial. Barry’s attorney objects to the introduction of the lineup results. In response the prosecution states that he or she will call the witness to the stand to provide an in-court identification to verify the lineup identification. Should the court rule in the prosecution’s favor?

Question

a. Yes, the in-court identification of the perpetrator by the victim will clear any taint from the lineup.
b. Yes, if the prosecutor can establish by clear and convincing that the in-court identification is not the product of an identification in which the suspect was denied his Sixth Amendment right to counsel.
c. No, any testimony pertaining to the identification of the suspect is inadmissible under the fruit of the poisonous tree.
d. No., there is no way for the prosecution to prove beyond a reasonable doubt that the lineup process was fair and impartial and did not influence the memory of the person making the identification.

Answer 1

b. Yes, if the prosecutor can establish by clear and convincing that the in-court identification is not the product of an identification in which the suspect was denied his Sixth Amendment right to counsel.