ID Procedures

Sven D. Wiberg

For more information on arrest procedures and false identification, call to schedule a complimentary consultation with New Hampshire criminal defense lawyer Sven Wiberg.

Due Process Protection During
Identification Procedures

In order for the state to legally have witnessed or identify the perpetrator of a crime, the identification procedure must not violate due process guaranteed under both the state and federal constitutions. A knowledgeable New Hampshire criminal defense lawyer will make sure that the identification process is not unnecessarily suggestive and does not create a substantial risk of misidentification.

The Due Process Protection Standard

There are several requirements that must be met for an identification to meet the requirements of due process protection.

Suggestive Procedure

First, the standard requires the New Hampshire criminal defense lawyer needs to show that the procedure was suggestive and that there was justification for the police to use a less suggestive identification procedure.

Conducive to Mistaken Identification

Second, the New Hampshire criminal defense lawyer will need to show that the procedure was conducive to mistaken identification or that it gave rise to a substantial likelihood of misidentification. If the lawyer can successfully meet both prongs of the test, the identification will not be admissible in court because it will have violated due process standards.

Second Chance For Admissibility

Federal law and New Hampshire state law allow for the prosecution to admit an identification that is otherwise inadmissible because of being unduly suggestive if it can prove that “under the totality of circumstances the identification was reliable even though the confrontation procedure was suggestive.”

In allowing the second chance, the court will need to weigh the corrupting effect of the unduly suggestive identification against the following factors:

• The amount of time between the crime and the confrontation

• The witness’s degree of attention

• The accuracy of the witness’s prior description of the person who committed the crime

• The degree of certainty portrayed at the confrontation

A good New Hampshire criminal lawyer should be familiar with these factors to provide sufficient evidence to persuade the court not to allow the identification.

Contact Us

For more information about the due process protections and identification procedures in a criminal matter, you should call to schedule a complimentary consultation with New Hampshire criminal defense lawyer Sven Wiberg.