Is a show up a critical stage of prosecution or not? (for which someone's 6th amend. rights to counsel are invoked)
I have heard conflicting views.
Can anyone explain?
CRIM PRO Question Forum
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encore1101
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Re: CRIM PRO Question
If its just a "field show up," where the defendant is temporarily detained while the police bring the victim to make an identification, then no right to counsel attaches during the investigatory show up.
If the identification procedure occurs after the defendant has already been arrested and brought before a judicial officer, then its no longer an investigation, but a prosecution, and so defendant has the right to counsel. That's probably where the confusion is coming from.
Read Kirby v. Illinois, 406 U.S. 682 (1972) ("We decline to depart from that rationale today by imposing a per se exclusionary rule upon testimony concerning an identification that took place long before the commencement of any prosecution whatever."). It spells out the difference between pre/post-prosecutorial show-up.
If the identification procedure occurs after the defendant has already been arrested and brought before a judicial officer, then its no longer an investigation, but a prosecution, and so defendant has the right to counsel. That's probably where the confusion is coming from.
Read Kirby v. Illinois, 406 U.S. 682 (1972) ("We decline to depart from that rationale today by imposing a per se exclusionary rule upon testimony concerning an identification that took place long before the commencement of any prosecution whatever."). It spells out the difference between pre/post-prosecutorial show-up.
