Over the last century, scholars have studied the relevance of psychological influences and their growing presence in the legal context, specifically in criminal law. As a result, the areas of eyewitness identification, trial testimony, and jury awareness have received heavy examination. Pre-trial identification procedures have come under scrutiny based on psychological factors and constitutional issues that often arise, and remain to be a topic of interest among legal and psychology scholars. While the commonly used lineup procedure has received much attention, researchers have not been as generous to the showup procedure commonly used by police. This note will first examine the historical background of lineup (1) and showup (2) procedures to date through a review of the Supreme Court's jurisprudence on showup procedures. (3) Specifically, the analyses and arguments of this note will address the psychological relevance of pre-trial, showup identifications through the following: a) the inherently suggestive nature of showup procedures; b) the psychological effect of eyewitness identifications on the jury; and c) the constitutional implications as a result of showup identification. Further, recommendations to the judicial community will be made along with suggested legislative reforms and policies that will, if implemented, alleviate the many problems associated with showup identification procedures.
II. SUPREME COURT JURISPRUDENCE--THE WADE TRILOGY
In 1967, the United States Supreme Court first discussed the problems associated with eyewitness identification procedures in three landmark cases: United States v. Wade, (4) Gilbert v. California, (5) and Stovall v. Denno. (6) The Court's main focus was confronting the "dangers inherent in eyewitness identification and the suggestibility inherent in the context of the pretrial identification." (7) They were primarily concerned about the high occurrence of misidentification by eyewitnesses as a result of deliberate or accidental suggestion during lineups and showups. (8)
The first two cases, Wade and Gilbert, involved post-indictment, pretrial lineups wherein the Supreme Court found that such a lineup conducted without counsel present and without a waiver of the right to counsel violated a defendant's Sixth Amendment right to counsel. (9) The lineup was deemed a "critical stage" where Sixth Amendment protection applied; (10) however, the assessment of the "critical stage" posed some ambiguities for subsequent case law. (11)
The third case of the Wade Trilogy, Stovall v. Denno, involved a showup. (12) Here, the Court dealt with a defendant's general due process protection, recognizing that a pretrial identification procedure that is so unnecessarily suggestive and conducive to irreparable misidentification that it denies the defendant due process of law is constitutionally impermissible. (13) The Court observed, "[i]t is hard to imagine a situation more clearly conveying the suggestion to the witness that the one presented is believed guilty by the police," when describing the showup that took place in Stovall. (14)
Five years after the Wade Trilogy, the Supreme Court moved backwards with its decision in Kirby v. Illinois. (15) In Kirby, the question remained whether the defendant had the right to counsel at the showup. (16) The defendant had been arrested but judicial proceedings had not been initiated. (17) The Kirby Court limited the Wade principle strictly to its facts --post-indictment lineups--in determining the "critical stage" standard, and concluded that the defendant in Kirby did not have a right to counsel because he had not yet been indicted. (18) Importantly, the Wade Court, in defining the lineup procedure as a critical stage, expressly relied on Escobedo v. Illinois, (19) which involved the right to counsel before arraignment. (20) Thus, the Kirby Court created a loophole for police …