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1) The due process perspective is, concerned with people's rights and liberties. Due process advocates believe that the government's primary job is not only to control crime but also to maximize human freedom, which includes protecting citizens from undue government influence. Due process advocates also strongly support the idea that a suspect is innocent until proven guilty. In addition, they place greater emphasis on legal guilt (whether a person is guilty according to the law) rather than factual guilt (whether a person actually committed the crime with which he or she is charged).
In contrast, the crime control perspective emphasizes the importance of controlling crime, perhaps to the detriment of civil liberties. From a cost/benefit standpoint, crime control advocates believe that the benefit to society of controlling outweighs the cost of infringing on the rights and liberties of some individuals. Another way to distinguish between the due process and crime control perspectives is to consider the distinction between means and ends: Crime control is more concerned with the endswiping out crime, or at a minimum, mitigating its harmful effects.
2) Some court decisions are made in the theoretical world, which is somewhat disconnected from the day-to-day operations of law enforcement within the real world. Americans are taught that the courts and the Supreme Court, in particular are charged with interpreting the Constitution and the laws of the United States. They are further taught that law enforcement should accept such interpretations uncritically and without much reflection. While these understandings are mostly true, theory and reality can still differ. Some Supreme Court decisions have little influence in the real world, and in some cases may even be flatly ignored.
3) A remedy is a method of rectifying wrongdoing. Remedies may be legal or extralegal in nature. Extralegal remedies are those conducted outside the legal process. An example of an extralegal remedy is vigilantism. If one man is assaulted by another, the assaulted individual may seek revenge and opt to solve the perceived injustice with his fists. Legal remedies are remedies made available by the law, by court decisions, or by a police policy or procedure.
4) The rights stemming from five amendments are of special importance in criminal procedure. Four of thesethe Fourth, Fifth, Sixth, and Eighth Amendmentscan be found in the Bill of Rights. In addition to the Bill of Rights, the Fourteenth Amendment is often relevant in criminal procedure.
5) Yes
First, Tarter raises several contentions: (1) there was no well established constitutional right in 1992 to be free of show-ups; (2) Gregory waived his right to contest the show-up, and therefore no due process violation could have occurred; (3) as a matter of law, any due process violation that did occur was a result of the prosecutor's choice to use the show-up identification at trial, and not the direct result of Tarter's use of the show-up in the first instance. (1) In a claim for qualified immunity, a court first considers (1) whether the plaintiff has asserted a violation of a known constitutional right, and (2) whether the constitutional right was so clearly established at the time in question that a reasonable official in the defendant's position would have known that he was violating the plaintiff's constitutional rights. Criminal suspects have a constitutional right to be free from identification procedures so unnecessarily suggestive and conducive to irreparable mistaken identification that the identification's use violates due process of law. Stovall v. Denno (1967). An impermissibly suggestive identification leads to a criminal conviction, requires a defendant's conviction to be overturned. Tarter argues that a reasonable officer would not have known that his use of the show-up was a violation of Gregory's constitutional rights, because show-ups are not per se unconstitutional. Yet the Supreme Court has held that police officers must evaluate the totality of the circumstances and reach a reasoned conclusion as to whether an identification procedure is impermissibly suggestive or not. See Neil v. Biggers (1972). The Supreme Court has never said that law enforcement may do away with this consideration merely because a criminal suspect consents to come in for an identification procedure. On the contrary, the cases require an assessment of the circumstances before the decision to undertake a show-up. This Court has never held that a police officer is free to ignore the constitutional restraints on police action merely because the constitution does not forbid such action in all circumstances. Tarter may as well argue that a police officer is free to make warrantless searches and seizures without fear of constitutional liability because the Constitution does not prohibit such searches in all cases. (2) The consent argument, that n Gregory's has no legal right to bring a due process claim because he signed the preprinted waiver form, is in error. Gregory does not have a right to a line-up versus a show-up. He has a due process right which includes the right to be free from unduly suggestive and unreliable identification procedures. By consenting to a show-up in lieu of a line-up he was not waiving this right, but merely agreeing to be put in front of a witness before his indictment, when he had a right not to appear for an identification procedure at all. As a result of circumstances unknown to Gregory at the time, the show-up was unduly suggestive. He did not waive any improper suggestiveness associated with the show-up by agreeing to appear. The preprinted waiver form does not include any language about a right to due process or a fair trial. Criminal suspects may agree, for example, to appear for a line-up prior to any indictment or even arrest. Such agreement does not mean, however, that the suspects lose their right to contest any suggestiveness in the line-up not caused by them. (3) Tarter argues Gregory's injury resulted from the prosecutor's use of the impermissibly suggestive identification at trial, and not from Tarter's procurement of the identification itself. An unduly suggestive identification does not, in and of itself, violate constitutional rights and the prosecution's use of the identification at trial is a necessary intervening act for injury to occur. But the prosecutor's discretion to control the state's case at trial is not such an intervening act to excuse Tarter from the natural consequences of his actions and any tort liability. In one case the Supreme Court held that the issuance of an arrest warrant will not shield a police officer who applied for the warrant from liability for false arrest if a reasonably well-trained officer in his position would have known that his affidavit failed to establish probable cause. The Supreme Court's reasoning is directly applicable here. The prosecutor's decision to use the identification does not shield Tarter from liability if he reasonably should have known that use of the identification would lead to a violation of Gregory's right to a fair trial. Tarter is denied qualified immunity for Gregory's claim of suggestive identification.
6) No
In certain circumstances, a viewing at a preliminary examination could be suggestive. For example, to walk a defendant in shackles and with a U.S. Marshal at each side before an identification witness is impermissibly suggestive. In the cases here, one repo man only saw the back of Howard's head, and for him the preliminary examination was not suggestive. As for the other two, there was suggestiveness inherent in their knowing that Howard was the defendant, but the more important question is whether the identifications based on their observations at the crime scene were reliable even if the viewing at the adjourned preliminary examinations were suggestive. Applying the Manson v. Brathwaite (1977) factors, the court found the in-court identifications reliable: one repo man had a good opportunity to view the shooter, saw him three times, was as close as three to six feet; he was more attentive because of the stress of the crime; the descriptions given were generally accurate; testified with certainty at the trial; and three months is not a great length of time between an observation and identification. As for the height differential at the lineup, this factor, standing alone, is usually not enough to make a lineup procedure suggestive. Howard claims he was three inches taller than the fillers. On balance, we do not find such a discrepancy to have infected the process. With respect to his haircut, unless the witness described the distinctive characteristic to the police beforehand, that characteristic is not a basis for finding a lineup unduly suggestive, and the repo men did not describe the shooter's hair style after the killing. One judge dissented.
7) Yes, No, Yes.
The fact that Anderson was handcuffed and flanked by police officers during the show-up tended to suggest his guiltit was suggestive. The show-up was not necessary. There was sufficient evidence against Anderson at the time of his arrest to hold him. No circumstances, such as the possibility that the only witness might die, required an immediate and suggestive show up. A live or photographic line up could have been held within less than a day. Nevertheless, the show-up evidence was admitted into evidence. In Stovall v. Denno (1967) the Supreme Court held that due process is violated when an initial identification procedure is unnecessarily or impermissibly suggestive. This was a two-part rule: first, was the show-up suggestive, and second, was there some good reason for the authorities' failure to resort to less suggestive procedures. In Stovall the only witness to the crime was in critical condition and may have died before a less suggestive identification procedure could be held (the suspect was brought into her hospital room). Under Stovall, the show-up in this case would not have been admissible. The Supreme Court's later decision of Manson v. Brathwaite (1977), ultimately rejected a rule of per se suppression in favor of the totality of circumstances approach. In Stovall the totality of circumstances referred to factors concerning the suggestiveness and necessity of a show-up. But in Brathwaite, the Court used this phrase to refer to the factors that might negate or mitigate the presumed suggestiveness of an unnecessary show-up: the witness's opportunity to view the perpetrator during the crime, the witness's degree of attention, the accuracy of any prior description given by the witness, the witness's level of certainty when making the identification at the show-up, and the length of time between the crime and the show-up. After finding that Alaska precedent comported with the federal cases, the Court of Appeals concluded that the show-up in Anderson's case was no more suggestive than a typical show-up. We further note that, even though Anderson and Engstrom were displayed to N.B. in virtually identical ways, N.B. positively identified Anderson but told the police that she could not identify Engstrom. This fact supports the judicial consensus that a typical show-up is not so suggestive as to violate the guarantee of due process of lawnot so suggestive that we should conclude, as a matter of law, that a resulting identification is the product of suggestion rather than memory.
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