Con Crim Pro
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| Focus of Con Crim Pro | 4th Amendment - unreasonable search and seizure
5th amendment - Miranda rights
6th amendment - right to counsel
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| Minimum Standard | Federal law sets the minimum standard and states are free to add to, but not subtract from, those protections
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| Total Incorporation Viewpoint | Judge Black's viewpoint.
All Bill of Rights apply to state via the 14th amendment.
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| Case-by-case Viewpoint | Judge Harlan's viewpoint.
Bill of Rights applying to states should be decided on a case-by-case basis
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| Selective Incorporation | Bill of Rights applies in most cases (1950's).
Due Process contains rights that aren't enumerated - proof beyond a reasonable doubt; exclusionary rule
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| Exclusionary Rule Definition | Prohibits the introduction of evidence at trial that was obtained in violation of a defendant's constitutional rights.
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| Purpose to Exclusionary Rule | To deter police misconduct - police are less likely to violate constitutional rights if the evidence can't be used.
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| What kind of police conduct triggers the exclusionary rule? | Sufficiently culpable conduct, i.e., reckless or grossly negligent conduct, not merely negligent
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| Fruit of the Poisonous Tree Doctrine | Evidence derived from a constitutional violation is excluded. Ask - if illegal search/seizure/arrest had not occurred, would the evidence still have been found?
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| Exception to the Fruit of the Poisonous Tree Doctrine | Fruits derived from Miranda violation are not excluded.
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| Scope of Exclusionary Rule - Breaking the Causal Chain; 5 Things that Break the Chain | Balance between police deterrence and costs of exclusion.
(1) Independent Source
(2) Intervening Act of Free Will
(3) Inevitable Discovery
(4) Live Witness Testimony
(5) In Court ID
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| Which Kind of Proceedings the Exclusionary Rule Doesn't Apply In | (1) Grand Juries
(2) Civil Proceedings
(3) Violations of Mere State Law
(4) Internal Agency Rules
(5) Parole Revocation
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| Good Faith Exception to Exclusionary Rule | When officer erroneously but in good faith relies on invalid search or arrest warrant, or law
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| Texas Exception to Good Faith Exception | (1) Affidavit so lacking probable cause
(2) Warrant is Facially Defective
(3) Police Dishonesty
(4) Judge Abandons Neutral Role
(5) Search Exceeds Scope
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| Excluded Evidence - Impeachment | If evidence is properly excluded, it could still be used to impeach the defendant's credibility
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| Exclusionary Rule - Knock and Announce Violation | Violation of knock and announce rule will not lead to exclusion of evidence
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| Harmless Error Test | If conviction would stand without illegally obtained evidence, conviction will be upheld.
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| Right to Hearing and Motion to Suppress | Defendant has right to hearing outside presence of jury to determine the admissibility of evidence. Government has burden.
In Texas, defendant can reargue admissibility to the jury after the judge has already ruled on it.
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| 4th Amendment - Search and Seizure Defined | Search: a governmental intrusion into an area where a person has a reasonable and justifiable expectation of privacy.
Seizure: governmental exercise of control over a person or thing.
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| What Constitutes a Seizure of a Person? | Under totality of circumstances, would a reasonable person believe he is free to decline officer's request and terminate encounter?
Requires physical application of force by the officer or submission to officer's show of force.
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| Arrest - Probable Cause Requirement and Test | Probable cause is required for all arrests. Probable cause is present when an officer has reasonably trustworthy facts and circumstances to make a reasonably prudent person believe that the suspect has committed or is committing a crime. A mistake is ok
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| Arrest - Warrant Generally Not Required | For a felony, police may arrest person they think committed the crime.
For a misdemeanor, police may arrest person who committed crime in his presence.
For an arrest in home, a warrant is always required. 3rd party home - arrest & search warrant requir
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| Terry Stop and Frisk | Police can detain person if they have reasonable suspicion supported by articulable facts that crime is or has been committed. If police have reasonable suspicion person is armed and dangerous, they can frisk for weapons.
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| Reasonable Suspicion - Definition and Informant's Tip | No definition - totality of the circumstances but vague suspicion not enough; personal knowledge not required.
Informant's tip must be accompanied by indicia of reliability.
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| Duration and Scope of Terry Frisk | Must be relatively brief and no longer than is necessary to verify reasonable suspicion.
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| Automobile Stops | Reasonable suspicion that law has been violated is required for an automobile stop unless it is a roadblock (drunk driving and border patrol examples).
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| Automobile Stop - Seizure of Occupants | Passengers are seized during auto stops because they wouldn't reasonably feel free to leave without cops permission. Therefore, passengers have standing to challenge illegal stops.
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| Automobile Stop - Ordering Occupants Out | Police may order occupants out of auto for safety, frisk them, and search compartment for weapons even if they are already out
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| Automobile Stop - Violation of Other Law | Police can stop vehicle for traffic violation even if they want to investigate for a different purpose and a drug dog can sniff vehicle.
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| Detention to Obtain Warrant | Police can prevent suspect from entering home to destroy evidence while they get a search warrant.
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| Detaining Occupants of Premises | Allowed if cops have valid warrant.
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| Analytical Approach | (1) Does the defendant have a 4th amendment right?
(2) Was there government conduct?
(3) Does the defendant have a reasonable expectation of privacy?
(4) If so, did police have a valid search warrant?
(5) If not, does an exception apply?
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| Government Conduct Required | Has to be the police or a private individual acting at their direction. Private security guards don't count.
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| Reasonable Expectation of Privacy - Standing | A person can only complain about a violation of his own expectation of privacy.
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| Legitimate expectation of privacy - Test and 3 Things | Totality of the circumstances but specifically:
(1) He owned or had a right to possess the place searched
(2) The place searched is his home, whether or not he owned or had the right to possess it.
(3) An overnight guest
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| When does a person have no legitimate expectation of privacy? | When an individual is at a premises solely for business purposes, such as bagging cocaine, he has no legitimately expectation of privacy.
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| Things Held Out to the Public - No Expectation of Privacy - 8 things | (1) sound of one's voice
(2) one's handwriting
(3) paint on the outside of a car
(4) the smell of one's luggage (but not squeezing the luggage)
(5) account records held by the bank
(6) an automobile's movement
(7) magazines offered for sale
(8) gar
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| Open Fields - No Expectation of Privacy | Areas outside the curtilage are subject to police entry and searches
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| Fly Overs vs. Technology Enhanced Searches of Home | Police may fly over and observe with naked eye - no expectation of privacy.
However, police may not use sense enhancing devices to intrude into places they couldn't see otherwise - reasonable expectation of privacy.
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| Search Warrant Requirements | Generally, police must obtain a search warrant. In order for it to be valid, it must:
(1) be issued by a neutral and detached magistrate
(2) be based on probable cause, and
(3) particularly describe the place to be searched and the items to be seized.
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| Affidavit - Probable Cause | May be anticipatory.
May use informers (no identification necessary) and probable cause is based on totality of circumstances.
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| Frank's Hearing - 3 elements | A search warrant will be invalid if:
(1) A false statement was included in the affidavit
(2) The affiant intentionally or recklessly included the false statement, and
(3) the false statement was material to the finding of probable cause.
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| Zurcher v. Stanford Daily - Newspaper Office Search | Searching the office of a third party if there is probable cause to believe evidence of someone's guilt will be found is okay.
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| Who is Not a Neutral or Detached Judge? | (1) State attorney general.
(2) Magistrate who is compensated per warrant
(3) Magistrate who participates in search
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| Execution of Warrant - Third Person Presence | The media may not accompany officers while executing a warrant unless they are there to aid in the execution.
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| Execution of Warrant - Knock and Announce | Police must knock and announce their presence unless they believe the situation is dangerous or evidence will be destroyed. Remember the exclusionary rule doesn't apply to a knock and announce violation.
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| Execution of Warrant - Others on Premises | Others may not be searched without probable cause for simply being on the premises that are being searched but those individuals can be detained while the search is being conducted.
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| Six Exceptions to Warrantless Searches | (1) Search Incident to Arrest
(2) Automobile Exception
(3) Plain View
(4) Consent
(5) Stop and Frisk
(6) Hot Pursuit, Evanescent Evidence, and Other Emergencies
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| Search Incident to Arrest | Any arrest is sufficient for an officer to conduct a search as long as the arrest is constitutionally valid.
However, a traffic violation is not sufficient to justify a search (officer safety is not an issue.)
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| Search Incident to Arrest - Chimel Zone | Incident to a constitutional arrest, police may search the person and areas into which he might reach (his wingspan) while follows him as he moves.
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| Search Incident to Arrest - Buie Zone | Incident to a constitutional arrest, police may make a protective sweep of the area beyond the defendant's wingspan for people.
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| Search Incident to Arrest - Beyond Area | Incident to a constitutional arrest, police may go beyond the Buie area only if they have probable cause to do so.
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| Search Incident to Arrest - Automobile Scope | After arresting the individual, police may search the interior of the auto if:
(1) the arrestee is unsecured and still may gain access to the interior of the vehicle, or
(2) the police reasonably believe that evidence of the offense may be found.
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| Search Incident to Arrest - Vehicle Impound | Police may search the entire vehicle, including containers.
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| Automobile - Warrant Exception | If the police have probable cause to believe that the automobile has contraband or fruits of a crime, they may search without a warrant. Vehicles are mobile and people have a lesser expectation of privacy.
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| Scope of Automobile Exception Search | The entire vehicle and all containers that might contain the object for which they are searching including passenger's belongings.
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| Plain View - Warrant Exception - 4 Requirements | (1) Police must be lawfully on premises.
(2) Discovery of evidence, fruit or instrumentality of crime, or contrand.
(3) See such evidence in plain view
(4) Have probable cause to believe item is evidence.
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| Consent - Warrant Exception | (1) Must be voluntary, and
(2) Intelligent
Notice of right to refuse is unnecessary.
Officer dishonesty negates consent.
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| Who has authority to consent to search? | Anyone with the apparent equal right to use or occupy even if they truly don't have the right, as long as police reasonably believe person has authority. Evidence may be used against any occupant.
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| What are some limitations to authority to consent? | Two occupants and the one who the search is directed against objects.
Children can only consent to search of general areas.
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| Stop and Frisk - Warrant Exception | (1) Reasonable suspicion of criminal activity for stop.
(2) Reasonable suspicion of armed and dangerous for frisk.
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| Scope of Frisk | Patdown of outer clothing to feel for weapons. Can reach into clothing but can't manipulate items. Can order passengers out of car and frisk them.
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| Emergency - Warrant Exception | No general emergency allowed. Contaminated food or drugs, children in trouble, burning fires, and people in danger justify warrantless entries.
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| Hot Pursuit - Warrant Exception | Police may make warrantless search and seizure while pursuing suspect.
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| Evanescent Evidence - Warrant Exception | Police may seize evidence likely to disappear without warrant such as blood with alcohol in it or fingernail clippings.
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| Administrative Searches | Probable Cause not required - just a showing of a general and neutral enforcement plan. Examples include contaminated foods and highly regulated industries.
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| Inventory Searches | Police may search and inventory an arrestee's belongings. Police may search and inventory impounded vehicle if part of department policy.
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| Public School Searches; What Constitutes Reasonable Grounds? | No PC required. Reasonable grounds are: (1) search offers moderate chance of finding evidence, (2) measures adopted are reasonably related to objectives of the search, and (3) search is not excessively intrusive. Drug test for any extracurriculars.
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| Parolee Searches | Reasonable suspicion not necessary for searches. No expectation of privacy. Less likely to be law abidding.
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| Government Employee Searches | Can search desks and files for work-related need or reasonable suspicion. Can be submitted to arbitrary drug-testing.
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| Searches in Foreign Countries and At Border | No one has 4th amendment rights at border, functional equivalent of border, or foreign countries.
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| Roving Patrols at Border | May stop a vehicle with reasonable suspicion of illegal aliens.
May not conduct a warrantless search of vehicle unless a warrant exception applies.
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| Fixed Checkpoints at the Border. | May stop and disassemble vehicle without reasonable suspicion. Can't strip search without probable cause.
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| INS Factory Survey | INS can enter factory to check citizenship without violating 4th amendment rights.
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| Wiretapping Warrant Requirements | 1. PC that specific crime is occurring.
2. Suspected persons named.
3. Must describe with particularity the conversations.
4. Must be limited duration.
5. Provisions for termination of wiretap.
6. Return to court.
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| Wiretap 4th amendment claims and exceptions | Falls under reasonable expectation of privacy. But speaker assumes other person is wired and waives right if no attempt to keep private.
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| Bodily Intrusions | Certainly have expectation of privacy. Blood tests are a reasonable intrusion but surgery isn't.
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| What constitutes a voluntary confession? | Totality of the circumstances, including age, education, and mental and physical condition along with the setting, duration, and manner of police interrogation.
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| Official Compulsion vs. Mental Disease | Involuntariness must be a product of official compulsion and a mental disease that contributes to a lack of the defendant's free will will not render a confession involuntary.
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| When does 6th amendment right to counsel arise? | At critical stages after formal judicial proceedings have commenced.
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| 6th amendment violation - cellmate information | 6th amendment violated when government cellmate informant elicits incriminating information from defendant but not when defendant himself actively tells informant.
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| Is the 6th amendment offense specific? | Yes. Defendant must assert right to counsel for each offense. Police can question for different offense after defendant has asserted right to counsel for first offense.
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| What is the test to determine different offenses? | Blockburger Test. If the crimes involve proof of different elements, they are different offenses.
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| Waiver of 5th and 6th amendment rights | Must be (1) voluntary, (2) intelligent, and (3) knowingly.
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| What are the prerequisities for admissibility of a confession under Miranda? | (1) Miranda warnings were given, and (2) clear, unequivocal waiver
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| Name the Miranda Rights; Texas Addition | (1) Right to remain silent, (2) Anything you say can be used against you, (3) Right to an Attorney, (4) If you don't have one, one will be provided for you. In Texas, (5) right to terminate questioning at any time.
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| Do Miranda Warnings have to be verbatim? | No, as long as the substance is there.
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| 3 Requirements for Miranda | (1) Government conduct, (2) Custody, and (3) Interrogation
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| What constitutes custody? | Whether Objectively, a person's freedom of action is denied in a significant way. Traffic stop is not custody.
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| What constitutes an interrogation? | Any words or action by police officer that are likely to elicit an incriminating response.
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| Does Miranda apply to spontaneous statements or booking questions? | No
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| Waiver - Silence | Waiver is not presumed from silence
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| Waiver - Request for Attorney | Must be specifically for attorney. Can't be for probation officer.
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| Waiver - Police Deception of Attorney | Confession will still be admissible if police lie to defendant's attorney about interrogation or fail to tell defendant that attorney is trying to contact him.
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| Right to Remain Silent Triggers What? | All questions must cease.
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| When can police reinterrogate after right to remain silent has been asserted? | When they scrupulously honor request meaning (1) they immediately stop questioning and don't resume for hours, (2) re give warnings, and (3) don't question about the same crime
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| Right to Counsel Triggers What? | All questioning must cease for all offenses until attorney is provided or accused reinitiates questioning.
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| 3 Circumstances where you can challenge eyewitness identification under due process clause | (1) Suggestive
(2) Unnecessary
(3) Very Substantial Likelihood of Misidentification
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| Examples of Suggestiveness | (1) Singly presented suspect
(2) Witness allowed to hear other witnesses identification
(3) Suspect in restraints
(4) Multiple presentation of only one suspect
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| 5 Factors for Substantial Likelihood of Misidentification | (1) Opportunity to view the crime
(2) Degree of attention
(3) Accuracy of any prior description
(4) Level of certainty
(5) Time between crime and identification procedure
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| When does sixth amendment right to counsel apply and not apply in regard to eyewitness identification? | Applies at critical stages of identification.
Doesn't apply to photo line ups and identification proceedings occurring before the beginning of the adjudicatory process.
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