7.6Identification Procedures¹

A.Biometric Data

“A juvenile must have biometric data collected when required by law.” MCR 3.932(C). In addition, “[t]he court may permit the collection of biometric data or photographing, or both, of a minor concerning whom a petition has been filed.” MCR 3.932(C). “‘Biometric data’ means all of the following:

“(i) Fingerprint images recorded in a manner prescribed by the [Department of State Police (“department”)].

(ii) Palm print images, if the arresting law enforcement agency has the electronic capability to record palm print images in a manner prescribed by the department.

(iii) Digital images recorded during the arrest or booking process, including a full-face capture, left and right profile, and scars, marks, and tattoos, if the arresting law enforcement agency has the electronic capability to record the images in a manner prescribed by the department.

(iv) All descriptive data associated with identifying marks, scars, amputations, and tattoos.” MCL 28.241a(b).

A juvenile’s biometric data must be collected upon arrest for a felony; a misdemeanor or juvenile offense for which the maximum possible penalty exceeds 92 days’ imprisonment, a $1,000 fine, or both; or a misdemeanor or juvenile offense that is authorized for DNA collection under MCL 28.176(1)(b).² MCL 28.243(1). When authorizing a petition, and before entering an order of disposition or placing the case on the consent calendar, a court must examine the court file and determine whether the juvenile’s biometric data has been collected and forwarded to the Department of State Police as required by MCL 28.243. See MCL 712A.11(5); MCL 712A.18(8); MCR 3.932(C)(3); MCR 3.936(B). If the court finds that the juvenile’s biometric data or fingerprints have not been taken and forwarded as required by MCL 28.243 or the Sex Offenders Registration Act (SORA), it must do either of the following:

“(a) Order the juvenile to submit himself or herself to the police agency that arrested or obtained the warrant for the juvenile’s arrest so the juvenile’s biometric data can be collected and forwarded and the juvenile’s fingerprints can be taken and forwarded.

(b) Order the juvenile committed to the sheriff’s custody for collecting and forwarding the juvenile’s biometric data and taking and forwarding the juvenile’s fingerprints.” MCL 712A.18(8). See also MCL 712A.11(5); MCR 3.936(B).

“Biometric data and photographs must be placed in the confidential files, capable of being located and destroyed on court order.” MCR 3.923(C).³

B.Court-Ordered Lineups or Showups

If a complaint or petition is filed with the Family Division against a juvenile alleging a criminal violation, the court may, at the request of the prosecutor, order the juvenile to appear at a place and time designated by the court for identification by another person, including a corporeal lineup. MCL 712A.32(1); MCR 3.923(D). If the court orders the juvenile to appear for such an identification proceeding, the court must notify the juvenile and the juvenile’s parent, guardian, or legal custodian of the following:

•the juvenile has the right to consult with an attorney and have an attorney present during the identification proceeding, and

•if the juvenile and the juvenile’s parent, guardian, or legal custodian cannot afford an attorney, the court will appoint an attorney for the juvenile if requested on the record or in writing by the juvenile or the juvenile’s parent, guardian, or legal custodian. MCR 3.923(D); see also MCL 712A.32(2).

See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 9, for information on motions to suppress identification of a defendant.

C.Constitutional Requirements

1.Right to Counsel

“Defendants who face incarceration are guaranteed the right to counsel at all critical stages of the criminal process by the Sixth Amendment, which applies to the states through the Due Process Clause of the Fourteenth Amendment.” People v Willing, 267 Mich App 208, 219 (2005). “The right attaches and represents a critical stage in the proceedings only after adversarial legal proceedings have been initiated against a defendant by way of indictment, information, formal charge, preliminary hearing, or arraignment.” People v Marsack, 231 Mich App 364, 376-377 (1998).

“[T]he right to counsel attaches only to corporeal identifications conducted at or after the initiation of adversarial judicial criminal proceedings.” People v Hickman, 470 Mich 602, 603 (2004). In Hickman, 470 Mich at 610, the challenged identification took place “on-the-scene” and before the initiation of adversarial proceedings; therefore, counsel was not required. However, a defendant may still challenge an identification conducted before the initiation of adversarial judicial proceedings on due process grounds because due process “‘protects the accused against the introduction of evidence of, or tainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedures.’” Id. at 607, quoting Moore v Illinois, 434 US 220, 227 (1977).

There is no right to counsel at precustodial investigatory photographic lineups. People v Kurylczyk, 443 Mich 289, 302 (1993). Rather, “[i]n the case of photographic identifications, the right of counsel attaches with custody.” Id. at 302. But see Hickman, 470 Mich at 609 n 4, declining to “address whether a defendant has a right to an attorney after the initiation of adversarial judicial proceedings during a photographic showup.”

The defendant was not entitled to a corporeal lineup with counsel rather than a photographic lineup where he was in custody for another offense at the time of the lineup; under Hickman, 470 Mich at 607, “a defendant’s right to counsel ‘attaches only to . . . [an] identification[] conducted at or after the initiation of adversarial judicial criminal proceedings[,]’” and adversarial proceedings for the subject offense had not yet been initiated when the photographic lineup occurred. People v Perry (Rodney), 316 Mich App 589, 596-598 (2016) (extending the reasoning of Hickman, 470 Mich at 603-604, 607-609—which addressed a corporeal identification—to a photographic lineup).

There is no right to have counsel present at a postlineup interview of a witness. People v Sawyer, 222 Mich App 1, 3-4 (1997).

2.Burden of Proof

If counsel was present at a lineup, the defendant bears the burden of showing that the lineup was impermissibly suggestive. People v McElhaney, 215 Mich App 269, 286 (1996). If counsel was not present at the lineup, the prosecution bears the burden of showing that the lineup was not impermissibly suggestive. People v Young (Donnie), 21 Mich App 684, 693-694 (1970).

The prosecution has the burden of proving by clear and convincing evidence that the defendant waived his or her right to counsel at the lineup. People v Daniels, 39 Mich App 94, 96-97 (1972).

3.Evaluating the Lineup’s Suggestiveness

A lineup may be so suggestive and conducive to irreparable misidentification that an accused is denied due process of law. Stovall v Denno, 388 US 293, 301-302 (1967), overruled in part on other grounds by Griffith v Kentucky, 479 US 314, 327-328 (1987). “[D]ue process concerns arise . . . when law enforcement officers use an identification procedure that is both suggestive and unnecessary.” Perry v New Hampshire, 565 US 228, 238-239 (2012). When the police use such a procedure, “the Due Process Clause requires courts to assess, on a case-by-case basis, whether improper police conduct created a ‘substantial likelihood of misidentification.’” Perry, 565 US at 239, quoting Neil v Biggers, 409 US 188, 201 (1972). “Exclusion of evidence of an identification is required when (1) the identification procedure was suggestive, (2) the suggestive nature of the procedure was unnecessary, and (3) the identification was unreliable.” People v Sammons, 505 Mich 31, 41 (2020).

A court must consider the totality of the circumstances to determine whether an identification procedure is fair. People v Kurylczyk, 443 Mich 289, 311-312 (1993). Nonexhaustive factors the court should consider when determining whether an unnecessarily suggestive identification is reliable include: “(1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness’ degree of attention, (3) the accuracy of his prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and the confrontation.” Sammons, 505 Mich at 50-51 (quotation marks and citation omitted).

“[T]he Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement.” Perry, 565 US at 248. Rather, “[w]hen no improper law enforcement activity is involved, . . . it suffices to test reliability through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at postindictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt.” Id. at 233-234, 240, 248 (where an eyewitness, in response to a police officer’s request for a more specific description of the perpetrator of a theft, pointed out her window at the defendant, who was standing near another officer, the trial court did not err in denying the defendant’s motion to suppress the identification without first conducting a preliminary assessment of its reliability; no such inquiry was required because “law enforcement officials did not arrange the suggestive circumstances surrounding [the] identification”).    

•Physical Differences of Lineup Participants

“‘Physical differences among the lineup participants do not necessarily render the procedure defective and are significant only to the extent that they are apparent to the witness and substantially distinguish the defendant from the other lineup participants.’” People v Craft, 325 Mich App 598, 610 (2018), quoting People v Hornsby, 251 Mich App 462, 466 (2002). “Generally, physical differences affect the weight of an identification, not its admissibility.” Craft, 325 Mich App at 610 (holding that defendant had not met his burden to show entitlement to a Wade⁴ hearing). Identification of the defendant was not impermissibly suggestive merely because “there was some variance between the participants’ heights and weights” when defendant ranked “somewhere in the lower-middle of the sample[.]” Craft, 325 Mich App at 611. The defendant also failed to establish that there were “any marked differences in complexion” or “marked variance in the physical build” among the participants that would substantially distinguish defendant. Id. at 611.

•Attire of Lineup Participants

“[I]t is generally preferable to present lineup participants in attire that is not indicative of their confinement (or alternatively to present all lineup participants in jailhouse attire)[.]” Craft, 325 Mich App at 611. However in Craft, the “defendant [failed to show] that the lineup was so suggestive as to distinguish substantially [him] from the other participants” where he was one of two participants wearing an orange jumpsuit. Id. at 611 (holding any error in the admission of identification of defendant would have been harmless in light of “[s]everal other pieces of evidence presented at trial [that] tended to establish defendant’s identity”).