Does a defendant have a right to have counsel present when a witness is shown a photograph of a lineup?

MultiRegion, United States of America

The following excerpt is from U.S. v. Barker, 988 F.2d 77 (9th Cir. 1993):

This case is a hybrid: it involves a photograph of a lineup. The fact that the lineup is depicted in the photograph, though, does not call into question the reasoning behind the decision in Ash. Counsel must be present where there is a potential "that the accused might be misled by his lack of familiarity with the law or overpowered by his professional adversary," or where counsel would "produce equality in a trial-like adversary confrontation." Id. at 317, 93 S.Ct. at 2577. Here, as in Ash, the defendant is not present when the photograph of the lineup is shown and thus cannot be "misled" or "overpowered," and the "adversary mechanism remains as effective for a photographic display as for other parts of pretrial interviews" whether the photos concerned are of a lineup or an array of suspects. Id. at 318, 93 S.Ct. at 2578; see also United States v. Amrine, 724 F.2d 84 (8th Cir.1983) (defendant had no right to have counsel present when witnesses were shown a videotape of a lineup). We conclude that a defendant has no right to have counsel present when a witness is shown a photograph of a lineup.

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