Presence-of-Counsel Safeguard and Eyewitness Identification

The presence-of-counsel safeguard, provided by the Sixth Amendment of the United States Constitution, guarantees every defendant the right to an attorney both at trial and during pretrial proceedings, including live, postindictment lineups. The presence of an attorney at live, postindictment lineups serves to protect defendants from erroneous convictions resulting from mistaken eyewitness identifications by allowing attorneys to attend pretrial identifications, advise their client of their legal rights and obligations, oppose the use of suggestive lineup procedures, and observe and record any suggestive procedures used during the identification test. Research has examined attorney behavior to determine the effectiveness of this safeguard.

The effectiveness of the presence-of-counsel safeguard rests on several psychological assumptions about attorney behavior. Specifically, for the presence-of-counsel safeguard to be effective, attorneys must be knowledgeable about factors that influence lineup suggestiveness and be able to recognize these factors when present in an identification test. Furthermore, this safeguard is effective only if attorneys attend their clients’ lineups and document any suggestive factors to support a motion to suppress the identification evidence or challenge the identification through cross-examination at trial.

How effective is the presence-of-counsel safeguard? Although a number of studies have examined attorney knowledge and opinions of the factors influencing eyewitness memory and identification accuracy, to date, only one study has examined attorney sensitivity to factors present in lineups and known to influence eyewitness identification accuracy.

Veronica Stinson and colleagues assessed attorney sensitivity to lineup suggestiveness by creating a videotaped lineup wherein aspects of the lineup known to produce higher rates of false identifications were manipulated. These lineup features included the individuals presented along with the suspect, called foils (biased vs. unbiased); the instructions given to the eyewitness (biased vs. unbiased); and the presentation of the lineup members (simultaneous vs. sequential). Prior to viewing one version of the videotaped lineup, attorneys were instructed to assume that the suspect in the videotaped lineup was their client, and they were provided with a photograph of the person suspected of the crime along with a written description of the eyewitness’s memory of the event and of the perpetrator. After viewing the lineup, attorneys evaluated the suggestiveness and fairness of the overall lineup procedure and of the foils, instructions, and presentation of the lineup. Attorneys were also asked to indicate the likelihood that they would file a motion to have the identification suppressed at trial.

The results indicated that attorneys are effective in safeguarding their clients from foil-biased lineup procedures. Attorneys, however, may not fully safeguard their clients from instruction-biased lineup procedures. Although attorneys appeared to be sensitive to the harmful effects of instruction bias and to recognize biased instructions in a lineup procedure, they did not believe that biased instructions reduced the fairness of the lineup. Furthermore, attorneys reported that they would be unlikely to file a motion with the court to suppress the identification when the lineup instructions are biased. Research, however, has shown that judges are more likely to grant a motion to suppress an identification when the lineup instructions are biased than when they are unbiased. Finally, attorneys lacked knowledge regarding the beneficial effects of sequentially presented lineups, suggesting that they are unable to effectively safeguard their clients from presentation-biased lineup procedures.

Although this study would suggest that attorneys are somewhat sensitive to factors influencing lineup suggestiveness, the presence-of-counsel safeguard is effective only if attorneys are actually present at their client’s postindictment lineups. Surveys of attorneys and police officers, however, suggest that defense attorneys are rarely present at the construction or presentation of their clients’ identification tests. Thus, the effectiveness of the presence-of-counsel safeguard may be limited not only by attorney knowledge of and sensitivity to factors influencing lineup suggestiveness but also by the absence of attorneys at their clients’ lineups.


  1. Brigham, J. D., & Wolskeil, M. P. (1983). Opinions of attorneys and law enforcement personnel on the accuracy of eyewitness identification. Law and Human Behavior, 7, 337-349.
  2. Potter, R., & Brewer, N. (1999). Perceptions of witness behavior-accuracy relationships held by police, lawyers and mock-jurors. Psychiatry, Psychology, and Law, 6, 97-103.
  3. Stinson, V., Devenport, J. L., Cutler, B. L., & Kravitz, D. A. (1996). How effective is the presence-of-counsel safeguard? Attorney perceptions of suggestiveness, fairness, and correctability of biased lineup procedures. Journal of Applied Psychology, 81, 64-75.
  4. Wogalter, M. S., Malpass, R. S., & McQuiston, D. E. (2004). A national survey of U.S. police preparation and conduct of identification lineups. Psychology, Crime, & Law, 10, 69-82.

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