CHAPTER 4

IDENTIFICATION PROCEDURES

§ 4.01 The Risk of Misidentification

§ 4.02 "Critical Stage" Identifications

§ 4.03 Identification Procedures Not Governed by the Sixth

Amendment - Precharge Corporeal Identifications

§ 4.04 - "Noncorporeal" Identification Procedures

§ 4.05 - DNA Fingerprinting

§ 4.06 - Photographic Identifications

§ 4.07 - Identification of Objects

§ 4.08 The Motion to Suppress

§ 4.09 Courtroom Identifications

§ 4.10 Identification Procedures at Defense Request - Lineups

§ 4.11 - Identification of Third Persons

§ 4.12 Jury Instructions

§ 4.01

The Risk of Misidentification

singled out suggestive eyewitness identification procedures as a prime cause of wrongful convictions.

The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification. . . . The identification of strangers is proverbially untrustworthy.{2}

If part of the problem lies in the inherent unreliability of eyewitnesses, a larger part can be attributed to suggestive police procedures.

A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification. A commentator has observed that "[t]he influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor - perhaps it is responsible for more such errors than all other factors combined."{3}

In Wade and its two companion cases, Gilbert v. California{4} and Stovall v. Denno,{5} the court fashioned a new exclusionary rule designed to keep out of evidence suggestive pretrial identifications and trial testimony "tainted" by suggestive identification procedures. Aimed at minimizing the risk of convicting the innocent, the Wade-Gilbert-Stovall exclusionary rule escapes the criticism generally leveled at constitutional exclusionary rules - that they allow defendants to escape conviction for "technicalities" having little or nothing to do with guilt or innocence. Even so, the rule is narrowly limited and reluctantly enforced. Since Wade the United States Supreme Court has rarely reversed a conviction on the basis of impermissible pretrial identification procedures.{6} The Vermont Supreme Court has never done so.{7}

§ 4.02

"Critical Stage" Identifications

Wade holds that an accused has the right to counsel at a pretrial, postcharge lineup, such a confrontation being a "critical stage" of proceedings.{8} Although the opinion did not expressly limit its holding to lineups conducted after formal criminal proceedings have been commenced, subsequent cases make that limitation clear.{9}

Denial of counsel at a postcharge lineup requires suppression of the lineup identification itself, as a per se sixth amendment violation.{10} The admissibility of the witness's subsequent in-court identification is determined by a traditional Wong Sun "taint" analysis: the in-court identification must be excluded if it is a product of the illegal lineup, but may be admitted if the witness is able to base his or her testimony exclusively on observations at the time of the crime, without regard to the intervening lineup.{11} The test involves consideration of the witness's

prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant's actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification. It is also relevant to consider those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup.{12}

It may be doubtful whether this sort of "independent sourcing" is often a real psychological possibility. In Simmons v. United States{13} the court wrote,

Regardless of how the initial misidentification comes about, the witness thereafter is apt to retain in his memory the image of the photograph rather than the person actually seen, reducing the trustworthiness of subsequent lineup or courtroom identifications.{14}

The burden is on the prosecution to show admissibility of the in-court identification by clear and convincing evidence.{15}

Defense counsel has two main roles to play at the lineup - to advocate nonsuggestive procedures, and to be a witness to the procedures employed. The comparison subjects in the lineup should resemble the defendant as much as possible, and there should be as many of them as possible. A "blind" lineup in which the defendant is not present can precede a second lineup in which the defendant appears. There should be nothing about the defendant's clothing that would permit the witness to identify the clothes and not the person.

Wade also emphasizes counsel's role as a witness.{16} Counsel should insist that the lineup be photographed or videotaped, record how long the witness took to make an identification, and question the witness immediately afterwards.

Wade requires notice to defense counsel and an opportunity to attend the lineup, but it does not require any judicial action at or before the lineup stage. Rule 16.1 of the Rules of Criminal Procedure, however, does impose such a requirement.{17} The requirement of judicial authorization gives counsel an opportunity to ask the judge to establish the ground rules for the proposed procedure (e.g., the number of comparison subjects, videotaping, an opportunity to question the witness afterwards).

Wade and Gilbert are both limited to lineups conducted after the prosecution has commenced,{18} although the dangers of suggestive misidentification, the accused's inability "to reconstruct at trial any unfairness that occurred at the lineup[,]"{19} and the risk that the "trial which might determine the accused's fate" may not be in the courtroom but at the pretrial confrontation itself,{20} are all no less in the absence of a formal charge.{21} In Kirby the court ruled Wade inapplicable to precharge identifications on the ground that the sixth amendment right to assistance of counsel "[i]n all criminal prosecutions" did not attach until the filing of a formal charge.{22} The Vermont constitutional right to counsel is worded similarly,{23} and except in the case of custodial interrogations{24} the court has not found a right to counsel in precharge proceedings. Even so, a precharge lineup order issued under V.R.Cr.P. 41.1 arguably marks the commencement of a criminal prosecution and, if so, the sixth amendment right to counsel, and its state constitutional or statutory counterpart should apply to such procedures.{25}

§ 4.03

Identification Procedures Not Governed by the Sixth Amendment - Precharge Corporeal Identifications

Even with no right to counsel, the suspect has a right against identification procedures that, judged in the totality of circumstances, are "so unnecessarily suggestive and conducive to irreparable mistaken identification" as to constitute a denial of due process.{26} In Stovall v. Denno the suspect was confronted with a crime victim in a hospital room who identified him as the victim's assailant. Noting that "[t]he practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned,"{27} the court nevertheless held the identification admissible because the victim might not have survived and she was the only witness capable of exonerating the suspect. The procedure, although suggestive, was not "unnecessarily" so.{28} In Foster v. California{29} the court held that repeatedly showing a single suspect to an uncertain witness was unnecessarily suggestive.

Subsequent cases substantially eroded the due process protection against suggestive precharge identifications. In Manson v. Braithwaite{30} the court held that even unnecessary suggestiveness does not require exclusion, so long as the identification testimony is found to be "reliable."{31} Reliability is judged by weighing "the corrupting effect of suggestive identification" against "the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation."{32} Other evidence of guilt tending to confirm the identification testimony should be irrelevant to this reliability calculation, except as it bears on harmless error.{33}

Manson's reliability test accords exactly the same treatment to pretrial and in-court identifications: if the in-court identification testimony is constitutionally reliable both are admitted; if not, both are excluded. This unitary test differs from the two-part Wade-Gilbert rule, requiring "per se" exclusion of an uncounselled pretrial lineup, but permitting admission of the in-court identification on a showing that it stemmed from an independent source.{34} An analogous two-part test for due process violations (per se exclusion of unnecessarily or impermissibly suggestive identifications; admission of an in-court identification shown to be untainted by the suggestive procedure) is foreclosed as a matter of federal due process by Manson. The result has been criticized as an evisceration of Stovall's exclusionary rule,{35} and Vermont's due process rule is an open question.{36}

Vermont's criminal rules establish a procedure for precharge identification procedures, including lineups and photographic identifications, before formal charge, on court order.{37} It is another open question whether the rule requires a court order for all precharge identifications, or if the police may proceed without judicial authorization even in the absence of exigent circumstances.{38}

§ 4.04

- "Noncorporeal" Identification Procedures

Wade distinguishes between corporeal identifications and other investigatory procedures, such as analysis of fingerprints, blood samples, clothing, and hair. The latter are not "critical stages" under either the sixth amendment or article 10, even if they follow a formal charge of crime,{39} because "[k]nowledge of the techniques of science and technology is sufficiently available, and the variables in technique few enough, that the accused has the opportunity for a meaningful confrontation with the Government's case at trial through the ordinary processes of cross-examination."{40} The Vermont court has seen no constitutional right to counsel at a variety of such procedures.{41} Despite Wade's limitation, notice to counsel is specifically required by V.R.Cr.P. 16.1 for postcharge fingerprinting, photographing, blood and hair sampling, as well as lineups and voice identifications (which Wade and Gilbert deem critical stages).{42} Similar precharge procedures ordered under V.R.Cr.P. 41.1 do not require notice to counsel even if the suspect already has representation.{43}

§ 4.05

- DNA Fingerprinting

The rationale for holding that routine noncorporeal identification procedures like fingerprinting and blood analysis are not critical stages (that the techniques are simple and well-known and can be challenged through ordinary cross-examination){44} may not apply to novel and complicated techniques like DNA fingerprinting, which involve obscure procedures with a number of critical variables.{45} Arguably, such hi-tech testing should be considered a critical stage on a par with lineups, although counsel's ability to shape the experimental process could not be meaningfully exercised without a defense DNA expert.

§ 4.06

- Photographic Identifications

In United States v. Ash{46} the U.S. Supreme Court held that the accused has no right to counsel at photographic identification procedures. The rules of criminal procedure, although they allow counsel at lineups and other identification procedures where the defendant must be physically present, including posing for photographs,{47} also do not require counsel's presence at a photo identification. Suggestive photographic identifications are governed by the Stovall-Manson due process test.{48}

A single photograph, like a one-on-one showup, is obviously suggestive; the police should show the witness an array of photographs matching his description of the perpetrator, no one of which is emphasized.{49} The Vermont court has acknowledged the "patent" suggestiveness of including two photographs of the same suspect in the array.{50} It is preferable to show all of an array of photographs together, rather than presenting them one by one, but "sequential rather than simultaneous presentation" is not per se unnecessarily suggestive.{51}}

Counsel has a right to discover the photo array under the rules of criminal procedure,{52} although not under the constitution.{53}

§ 4.07

- Identification of Objects

Identification of objects associated with the defendant - a weapon, a car, an item of clothing - can constitute compelling evidence of guilt. The procedures may be skewed by the same kinds of suggestiveness as identification of the defendant's person, and the due process right against suggestive and unreliable identifications should apply.

§ 4.08

The Motion to Suppress

A motion to suppress identification testimony must be filed before trial,{54} and the issue will be litigated at a pretrial hearing.{55}

When the grounds for suppression involve questions of suggestiveness and reliability, expert testimony may be appropriate. The frailties of eyewitness identification have been extensively studied and written about, and the process is now a recognized subject of expertise.{56} The principal reasons for restricting such testimony at jury trials - that the expert may be usurping a traditional jury function, and that jurors can be "made to understand the psychological factors which affect the accuracy of an identification" without expert testimony{57} - have no apparent application at the motion-to-suppress stage.

§ 4.09

Courtroom Identifications

The one-on-one police station showup, whose suggestiveness was condemned in Stovall,{58} has its counterpart in standard courtroom identifications, at pretrial hearings, and at the trial itself, where a witness is asked to identify the defendant in the courtroom. In Moore v. Illinois{59} a suspect in a rape case, who had tentatively identified a photograph of the defendant, made her first corporeal identification at the defendant's preliminary hearing, where he was without counsel and clearly marked as the accused. The United States Supreme Court wrote, "It is difficult to imagine a more suggestive manner in which to present a suspect to a witness for their critical first confrontation than was employed in this case."{60} The same can be said of identifications at the trial proper.{61}

Staging such a one-on-one courtroom encounter without notice to defense counsel is a direct sixth amendment violation, suppressible under Gilbert.{62} Even when counsel is present, if the pretrial procedure produces "unreliable" identification testimony the due process suppression rule of Manson should apply.

To the extent that they are within counsel's and the court's control, suggestive courtroom encounters should be avoided, either by assuring that the witness and the defendant do not come face to face, or by insisting that they meet under nonsuggestive circumstances.{63} When identification may be a contested issue counsel should find out if witnesses are present and ask that they not be allowed in the courtroom. If news reporters are present, counsel should ask that they be excluded{64} or directed not to photograph or film the defendant.

Similarly, when the eyewitness testifies at a pretrial hearing (e.g., on a motion to dismiss for lack of a prima facie case{65} or a motion to suppress the identification testimony), counsel can ask that the defendant be excused from the courtroom during the eyewitness's testimony, or concealed in some way, or else allowed to sit in the audience (a procedure which risks generating persuasive evidence for the state if the witness is able to make an identification). Similar dangers and options are available during the witness's deposition.

§ 4.10

Identification Procedures

at Defense Request - Lineups

If suggestive courtroom confrontations between the witness and the defendant can be avoided at the pretrial stage, suggestive trial identifications usually cannot be. In such cases the defendant may want to test the trial identification testimony with a properly conducted lineup. In United States v. Brown{66} the Second Circuit wrote that when a defendant fears irreparable suggestivity at a trial identification "his remedy is to move for a line-up order to assure that the identification witness will first view the suspect with others of like description, rather than in the courtroom sitting alone at the defense table."{67} The trial court may order such a lineup in its discretion on a finding that the procedure "will be of material aid in determining whether the defendant committed the offense."{68}} The decision, however, is "discretionary." In State v. Emerson the Vermont court held that a defendant has "no constitutional right to a lineup[,]"{69} and that the trial judge had not abused his discretion in refusing one because the eyewitness had already tentatively identified the defendant's picture in a pretrial photographic array.

It is not clear when, if ever, a lineup is mandatory. Emerson suggests that the defendant should have a lineup under Rule 41.1(k) if no pretrial identification procedure has been conducted, or if the pretrial identification was impermissibly suggestive.{70} Second Circuit law appears to be in internal conflict.{71} Considering lineups as a form of pretrial discovery, the prosecution should not be in a better position than the defense on general principles of reciprocity.{72}

Defense counsel can sometimes stage an informal lineup without court authorization, at the witness's deposition.{73}

§ 4.11

- Identification of Third Persons

The defendant may want to secure identification evidence regarding third persons by placing them in a lineup or requiring them to submit to fingerprinting or other forensic tests. Nothing in the rules authorizes such procedures,{74} but the Vermont Supreme Court has acknowledged that in "compelling circumstances" third-party identification procedures might be constitutionally required.{75}}

§ 4.12

Jury Instructions

When identification testimony is introduced at trial the risks of misidentification become questions for the jury. The Vermont court has said that it is "better practice" to give a jury instruction on the subject, while leaving the contents of the charge to the trial judge's discretion.{76}

ENDNOTES

1. 388 U.S. 218 (1967).

2. United States v. Wade, 388 U.S. 218, 228. (1967).

3. United States v. Wade, 388 U.S. 218, 228-29 (1967) (footnotes omitted) (quoting Wall, Eyewitness Identification in Criminal Cases 26). See also State v. Kasper, 137 Vt. 184, 191 (1979).

4. 388 U.S. 263 (1967).

5. 388 U.S. 293 (1967).

6. Foster v. California, 394 U.S. 440 (1969), and Moore v. Illinois, 434 U.S. 220 (1977), are two exceptions.

7. In State v. Baxter, 145 Vt. 295 (1984), the court affirmed a trial court order excluding a pretrial identification.

8. United States v. Wade, 388 U.S. 218, 236-37 (1967); State v. Kasper, 137 Vt. 184 (1979). The rule also applies to postcharge "showups." Moore v. Illinois, 434 U.S. 220, 229 (1977).

9. Kirby v. Illinois, 406 U.S. 682 (1972).

10. Gilbert v. California, 388 U.S. 263, 272-73 (1967).

11. Gilbert v. California, 388 U.S. 263, 272 (1967); United States v. Wade, 388 U.S. 218, 242 (1967).

12. United States v. Wade, 388 U.S. 218, 241 (1967) (footnote omitted).

13. 390 U.S. 377 (1968).

14. Simmons v. United States, 390 U.S. 377, 383-84 (1968).

15. United States v. Wade, 388 U.S. 218, 240 (1967).

16. United States v. Wade, 388 U.S. 218, 231-32 (1967) (noting the defendant's inability to reconstruct the lineup at trial).

17. The Rule provides that "[n]otwithstanding the initiation of criminal proceedings" a judicial officer may, on motion and notice, order the defendant to "appear in a line-up" and submit to other identification procedures. V.R.Cr.P. 16.1(a)(1), (2). V.R.Cr.P. 41.1 imposes a similar requirement of judicial authorization for precharge identification procedures. See § 4.03, infra.

18. Kirby v. Illinois, 406 U.S. 682, 688-89 (1972).

19. United States v. Wade, 388 U.S. 218, 232 (1967).

20. United States v. Wade, 388 U.S. 218, 235 (1967).

21. Kirby v. Illinois, 406 U.S. 682, 688 (1972) (dissenting opinion).

22. Kirby v. Illinois, 406 U.S. 682, 688 (1972).

23. Chapter I, article 10 grants the right to assistance of counsel "in all prosecutions for criminal offenses. . . ."

24. State v. Brunelle, 148 Vt. 347 (1987). See § 3.08, supra.

25. Cf. Moore v. Illinois, 434 U.S. 220, 227-29 (1977) (preindictment preliminary hearing marked commencement of prosecution for purposes of Wade and Kirby). The Vermont court has held that the right to counsel does not apply to Rule 41.1 orders for the production of physical evidence, whether or not formal criminal proceedings have commenced. State v. Percy, 156 Vt. 468, 474 (1990); State v. Kennison, 149 Vt. 643, 645-47, cert. denied, 486 U.S. 1011 (1988); State v. Howe, 136 Vt. 53, 63-64 (1978) (citing United States v. Wade, 388 U.S. 218, 227-28 (1967) (distinguishing such "preparatory steps" from lineups). See § 4.04, infra.

26. Stovall v. Denno, 388 U.S. 293, 301-02 (1967).

27. Stovall v. Denno, 388 U.S. 293, 302 (1967).

28. Stovall v. Denno, 388 U.S. 293, 302 (1967).

29. 394 U.S. 440 (1969).

30. 432 U.S. 114 (1977).

31. Manson v. Braithwaite, 432 U.S. 114, 114 (1977). See also State v. Unwin, 139 Vt. 186, 191-92 (1980); State v. Kasper, 137 Vt. 184, 192 (1979). The testimony must be excluded only if there is "a very substantial likelihood of a misidentification." Manson at 116; Unwin at 192.

32. Manson v. Braithwaite, 432 U.S. 114, 114 (1977); Neil v. Biggers, 409 U.S. 188, 199-200 (1972); State v. Unwin, 139 Vt. 186, 192 (1980).

33. See Manson v. Braithwaite, 432 U.S. 114, 128 (1977); (Marshall, J., dissenting). Compare Idaho v. Wright, 111 L. Ed. 2d 638, 655 (1990) (trustworthiness of out-of-court statement must be judged by circumstances "that surround the making of the statement and that render the declarant particularly worthy of belief").

34. See § 4.02, supra.

35. See Manson v. Braithwaite, 432 U.S. 114, 118 (1977) (dissenting opinion); Pulaski, Neil v. Biggers, the Supreme Court Dismantles the Wade Trilogy's Due Process Protection, 26 Stan. L. Rev. 1097, 1111-14 (1974).

36. The Vermont Supreme Court has routinely applied the Manson rule as a matter of federal due process. State v. Emerson, 149 Vt. 171, 174 (1988) (photo array); State v. Bissonette, 145 Vt. 381, 385-87 (1985); State v. Unwin, 139 Vt. 186, 191-92 (1980) (showup); State v. Kasper, 137 Vt. 184, 192 (1979) (photo array). It has never had occasion to decide if the state constitution requires anything different.

37. See V.R.Cr.P. 41.1(a)-(d) (issuance of "nontestimonial identification" orders prior to or after arrest); (m)(3) (the term covers "voice samples, photographs, and lineups").

38. The court approved an apparently nonexigent police station showup conducted without judicial authorization in State v. Unwin, 139 Vt. 186, 191 (1980), but noncompliance with Rule 41.1 was not argued as a ground for exclusion.

39. United States v. Wade, 388 U.S. 218, 227-28 (1967); State v. Kennison, 149 Vt. 643, 645-47, cert. denied, 486 U.S. 1011 (1988); State v. Howe, 136 Vt. 53, 63-64 (1978).

40. State v. Howe, 136 Vt. 53, 63 (1978) (quoting United States v. Wade, 388 U.S. 218, 227-28 (1967)).

41. See State v. Percy, 156 Vt. 468, 474 (1990) (taking of photographs); State v. Kennison, 149 Vt. 643, 644 (1988) (blood); State v. Howe, 136 Vt. 53, 62-63 (1978) (fingerprinting, blood sampling, and dental impressions).

42. V.R.Cr.P. 16.1(a)(1), (2).

43. State v. Howe, 136 Vt. 53, 62-64 (1978).

44. United States v. Wade, 388 U.S. 218, 227-28 (1967); State v. Howe, 136 Vt. 53, 63 (1978).

45. See United States v. Jakobetz, 955 F.2d 786 (2d Cir. 1992) (holding such evidence admissible in a federal criminal trial).

46. 413 U.S. 300 (1973).

47. V.R.Cr.P. 16.1(a)(1)(A),(D).

48. Simmons v. United States, 390 U.S. 377 (1968). See State v. Emerson, 149 Vt. 171, 174-76 (1988); State v. Bissonette, 145 Vt. 381, 384-87 (1985); State v. Savo, 141 Vt. 203, 212-13 (1982); and State v. Kasper, 137 Vt. 184, 191-94 (1979), all approving photographic identifications as sufficiently reliable under Manson.

49. See Simmons v. United States, 390 U.S. 377, 383 (1968).

50. State v. Kasper, 137 Vt. 184, 191-92 (1979) (citing Simmons v. United States, 390 U.S. 377, 383 (1968)).

51. State v. Bissonette, 145 Vt. 381, 386-87 (1985).

52. V.R.Cr.P. 16(a)(2)(D) requires disclosure, inter alia, of "photographs (including motion pictures and video tapes) . . . which are material to the preparation of the defense or which the prosecuting attorney intends to use in the hearing or trial. . . ."

53. See Simmons v. United States, 390 U.S. 377, 388-89 (1968).

54. V.R.Cr.P. 12(b)(3). See § 9.01 (motion practice).

55. In Watkins v. Sowders, 449 U.S. 341 (1981), the United States Supreme Court held that a defendant has no due process right to a hearing outside the jury's presence in every case where identification is challenged, but Rule 12 appears to grant that right and Vermont trial courts routinely respect it.

56. See State v. Percy, 156 Vt. 468, 475 (1990). See also United States v. Downing, 753 F.2d 1224, 1229 (3d Cir. 1985); People v. McDonald, 690 P.2d 709, 720 (Cal. 1984).

57. State v. Percy, 156 Vt. 468, 475-76 (1990).

58. Stovall v. Denno, 388 U.S. 293, 302 (1967).

59. 434 U.S. 220 (1977).

60. Moore v. Illinois, 434 U.S. 220, 229 (1977).

61. United States v. Archibald, 734 F.2d 938, 942 (2d Cir. 1984); United States v. Brown, 699 F.2d 585 (2d Cir. 1983). See also 1 LaFave & Israel, Criminal Procedure § 7.4(g) (1984) ("If a one-on-one confrontation at the police station is highly suggestive, then surely such a confrontation in court `is the most suggestive situation of all[.]'").

62. Moore v. Illinois, 434 U.S. 220, 231 (1977).

63. The Supreme Court in Moore v. Illinois noted that if counsel had been present at the preliminary hearing he could have requested a postponement so that a lineup could be arranged, or insisted that the complainant be excluded from the courtroom while the charges were being read and that the defendant be permitted to sit in the audience. 434 U.S. at 230 n.5. See also Boyd v. Henderson, 555 F.2d 56 (2d Cir.), cert. denied, 434 U.S. 927 (1977); United States v. Kaylor, 491 F.2d 1127, 1131 (2d Cir. 1973) (trial court has obligation to ensure that in-court identification does not "amount[] to a `show-up'"). In State v. Emerson, No. 89-197 (Vt. April 3, 1991) (unpublished), a prosecutor took child witnesses on a tour of the courtroom, showing them where the defendant would be sitting. The court held that this was not an impermissible procedure, and that the prosecutor had "merely conveyed information that is common knowledge to most citizens."

64. See § 22.06, infra.

65. V.R.Cr.P. 12(d).

66. 699 F.2d 585 (2d Cir. 1983).

67. United States v. Brown, 699 F.2d 585, 594 (2d Cir. 1983).

68. V.R.Cr.P. 41.1(k).

69. State v. Emerson, 149 Vt. 171, 176 (1988).

70. State v. Emerson, 149 Vt. 171, 175-76 (1988).

71. Compare Sims v. Sullivan, 867 F.2d 142 (2d Cir. 1989) (defendant has no right to lineup unless in-court identification would be unreliable under the Manson test) with United States v. Archibald, 734 F.2d 938, 942-43, modified, 756 F.2d 223 (2d Cir. 1984) (finding a right to a lineup notwithstanding the reliability of the trial identification testimony).

72. See Evans v. Superior Court, 522 P.2d 681, 685 (Cal. 1974) (citing Wardius v. Oregon, 412 U.S. 470, 475 (1973) ("discovery must be a two way street")). See § 24.15, infra (discovery).

73. No case law permits this but none forbids it. The procedure is subject to a prosecution motion for a protective order. See V.R.Cr.P. 16.2(d).

74. V.R.Cr.P. 41.1(k), authorizing identification procedures at defense request, has been held to apply only to procedures involving the defendant himself, and not to nonparty witnesses. State v. Messier, 146 Vt. 145, 154-55 (1985).

75. State v. Messier, 146 Vt. 145, 155 (1985). Compare State v. Percy, 149 Vt. 623, 631-39 (1988) (defendant has no right to compel rape complainant to be interviewed by defense experts). See § 24.20, infra.

76. State v. Roy, 140 Vt. 219, 228-29 (1981) (instruction "preferable" in most cases); State v. Kasper, 137 Vt. 184, 211 (1979). Kasper cites with approval a model identification instruction in United States v. Telfaire, 469 F.2d 552, 558-59 (D.C. Cir. 1972). Wade's discussion of the risks of suggestive identification procedures, 388 U.S. at 228-29, also includes strong cautionary language about the risks of misidentification suitable for a jury instruction.