Eyewitness and Identification Evidence in Minnesota

Your Right to a Lawyer at a Lineup

Once you've been formally charged, you generally have a right to have your lawyer present at a lineup — the U.S. Supreme Court calls a post-charge lineup a "critical stage" of the case (the Wade and Gilbert decisions). Key points:

• The right attaches after formal charges — not to lineups held before any prosecution has begun.
• It applies to in-person lineups, but not to photo arrays (you're not present, so there's no need for counsel there) or to behind-the-scenes lab analysis like fingerprint or DNA comparison.
• The right can be waived, but only knowingly and intelligently.

What the Police Can Make You Do

This surprises many people: you generally cannot refuse to participate in identification procedures that use your body as physical evidence. The privilege against self-incrimination protects "testimonial" communications — not physical characteristics. So you can be required to:

• stand in a lineup, assume a stance, walk, or make a gesture;
• be fingerprinted, photographed, or measured; and
• speak for voice identification, or provide a handwriting sample.

Speaking the words a suspect allegedly used isn't "testimony" — it's using your voice as an identifying physical characteristic.

Challenging a Suggestive Identification

The core protection is this: an identification can violate due process if the procedure was unnecessarily suggestive and created a substantial likelihood of misidentification. Courts use a two-part test:

1. Was the procedure unnecessarily suggestive? (For example, the witness was told a suspect was in the lineup, or you were the only person matching the description.)
2. If so, was the identification still reliable under the totality of the circumstances?

On the reliability question, courts weigh five factors (from Manson v. Brathwaite):

• the witness's opportunity to view the person during the crime;
• the witness's degree of attention;
• the accuracy of the witness's earlier description;
• the witness's level of certainty; and
• the time between the crime and the identification.

What this means for you: If a suggestive procedure tainted the identification and it can't be shown reliable, the out-of-court identification can be excluded. Even when it isn't excluded, you're still entitled to show the jury that the procedure was suggestive — which goes to how much weight the identification deserves.

An Important Limit: The Police Must Have Arranged It

There's a key boundary on when this due-process screening even applies. Under Perry v. New Hampshire — which Minnesota follows (State v. Mosley) — the reliability screening is triggered only when law enforcement arranged the identification under suggestive circumstances. If the suggestiveness didn't come from police conduct (for example, a witness spontaneously recognizes someone), the court doesn't conduct the special reliability screening; the identification goes to the jury to weigh. Minnesota has also allowed a witness to identify a defendant for the first time at trial without a pretrial screening.

Lineups, Show-Ups, and Photo Arrays

Lineups

Lineups are generally encouraged, but there's no absolute right to one. The people in a lineup don't have to be "clones" of the suspect, but the more the participants resemble the suspect in height, weight, and distinguishing features, the fairer and more reliable the result. Problems arise when the suspect alone wears a jail uniform, is conspicuously taller, or has a unique feature the others lack — and witnesses should never be told that a suspect is in the lineup.

"Show-Ups" (On-the-Scene Identifications)

Showing a single suspect to a witness — often shortly after a crime — is inherently suggestive and has been widely criticized. But it isn't automatically unconstitutional; courts look at the totality of the circumstances. Sometimes an immediate show-up is justified by necessity (for example, a dying witness, or the need to quickly confirm police are on the right track).

Photo Arrays

Photo identification is common and permissible, but the array can be challenged if it's so suggestive it creates a substantial likelihood of misidentification — for instance, where the suspect's photo stands out, or the witness is steered toward a particular picture. Repeatedly showing the same person's photo, or showing a single photo, raises serious reliability concerns.

How Strong Does an Identification Have to Be?

A conviction can rest on a single eyewitness's identification, and uncertainty usually goes to weight (for the jury) rather than admissibility. But there's a limit: an identification based on a fleeting or limited observation, with no corroboration, should not by itself support a conviction. In one Minnesota case, an identification was insufficient where the witness had his eyes fixed on the gun, his description didn't match, and there was no corroborating evidence.

The Concerns About Eyewitness Reliability

Research has repeatedly shown that eyewitness misidentification is more common than people assume — and that some intuitive assumptions are wrong. For example, a witness's confidence is not a reliable measure of accuracy, and cross-racial identifications tend to be less reliable. In Minnesota, whether to allow expert testimony about these eyewitness-reliability issues is left to the trial court's discretion, and courts have sometimes excluded it on the view that cross-examination, voir dire, and jury instructions already address the concerns. (Some other states have gone further with mandatory pretrial reliability hearings and detailed jury instructions; Minnesota has retained the more traditional approach.) Vigorous cross-examination remains the primary tool for exposing weaknesses in an identification.

Forensic Identification: Fingerprints, DNA, and Body Specimens

• Fingerprints and footprints with sufficient individual characteristics are admissible to connect a person to a crime.
• Body specimens — blood, hair, saliva, urine — can be ordered taken on a showing the procedure will materially help determine guilt, but a blood draw requires probable cause.
• Lost or destroyed evidence: the state's failure to preserve evidence generally violates due process only where the evidence had apparent exculpatory value and can't be replaced — often requiring a showing of bad faith.

How and When You Challenge Identification Evidence

Identification challenges are typically raised before trial. In felony and gross misdemeanor cases, this happens at the Omnibus Hearing; in misdemeanor cases, at a pretrial hearing. If a suggestive procedure (like a photo lineup) is conducted after the spreigl-florence.html">Omnibus Hearing, the court should grant a mid-trial hearing on request. The prosecution is also required to give notice of identification procedures it used.

Key Terms

• Identity confrontation: Any procedure showing a suspect to a witness for possible identification.
• Show-up: Presenting a single suspect to a witness, rather than a lineup.
• Independent origin: Whether an in-court ID rests on the witness's own memory rather than a tainted procedure.
• Manson factors: The five factors courts weigh for reliability.