You’re flipping through practice questions when you hit a Criminal Procedure hypo about a lineup. The defendant argues his right to counsel was violated. You freeze. Was that a post-indictment lineup? Was it even a lineup at all? And what’s the difference between that and a photo array anyway?

Identification procedures show up on the MBE more often than most students expect, and they’re tested in frustratingly specific ways. The examiners love to mix up the different procedures, the different constitutional protections that apply to each, and the remedies when those protections are violated. Let’s break down exactly what you need to know.

The Three Types of Identification Procedures

The MBE tests three distinct identification procedures, each with different constitutional implications:

Live lineups involve the suspect standing in a line with several other individuals (known as fillers) while a witness attempts to identify the perpetrator. The suspect is physically present, and the witness views them in person.

Showups are one-on-one confrontations where the witness is shown a single suspect and asked whether that person committed the crime. These typically occur shortly after the crime, often at or near the scene.

Photo arrays involve showing the witness a series of photographs, one of which depicts the suspect, and asking the witness to identify the perpetrator. The suspect is not physically present.

Understanding which procedure you’re dealing with is the first step. The MBE will test whether you can identify the type of procedure in the fact pattern, because the constitutional protections differ dramatically.

Right to Counsel at Lineups: The Critical Distinction

Here’s the rule that trips up most students: A defendant has a Sixth Amendment right to counsel at post-indictment lineups, but not at pre-indictment lineups.

The Sixth Amendment right to counsel attaches only after adversarial judicial proceedings have begun—typically at indictment, arraignment, or initial appearance. If the lineup occurs before formal charges, there’s no right to counsel, no matter how “critical” the stage might seem.

Consider this MBE-style fact pattern: Police arrest a defendant for armed robbery on Monday. On Tuesday, they conduct a lineup without notifying the defendant’s attorney. On Wednesday, the grand jury returns an indictment. The defendant argues his right to counsel was violated at the lineup.

The answer? No violation. The lineup was pre-indictment, so the Sixth Amendment right to counsel hadn’t attached yet. The timing is everything.

But flip the facts: The grand jury indicts on Monday. The lineup occurs on Tuesday without counsel present. Now you have a clear Sixth Amendment violation. The defendant had a right to have counsel present at that post-indictment lineup, and the prosecution violated it.

Why Lineups Get Special Treatment

You might wonder why lineups trigger the right to counsel when other investigative procedures don’t. The Supreme Court recognized that lineups are a critical stage of the prosecution because they carry a substantial risk of misidentification and because what happens at the lineup can’t be meaningfully reconstructed later at trial.

An attorney present at the lineup can observe whether it was conducted fairly—whether the fillers looked sufficiently similar to the defendant, whether the police made suggestive comments, whether the witness seemed uncertain. Without counsel there, the defendant loses the ability to challenge these issues effectively.

This is why showups and photo arrays are treated differently. Photo arrays don’t trigger the right to counsel at all (even post-indictment) because the defendant isn’t physically present and the photos can be preserved for later review. The defense attorney can see exactly what the witness saw.

Showups also don’t trigger the right to counsel, though for different reasons—they’re typically conducted immediately after the crime as part of the investigation, before the defendant has been formally charged.

Due Process: The Backup Protection

Even when there’s no right to counsel, all identification procedures must comply with due process. An identification procedure that is unnecessarily suggestive and creates a substantial likelihood of misidentification violates due process.

This applies to pre-indictment lineups, showups, and photo arrays equally. The question is whether the procedure was so impermissibly suggestive that it created a very substantial likelihood of irreparable misidentification.

Common examples of suggestive procedures include:

The MBE loves to test whether you can distinguish between a Sixth Amendment violation (no counsel at post-indictment lineup) and a due process violation (unnecessarily suggestive procedure). These are separate issues with separate remedies.

The Remedy: When Identifications Get Excluded

If the right to counsel is violated at a post-indictment lineup, the in-court identification may still be admissible if the prosecution can show it has an independent source—meaning the witness’s ability to identify the defendant at trial stems from their observation of the crime itself, not from the tainted lineup.

Factors courts consider for independent source include:

If there’s no independent source, both the lineup identification and the in-court identification are excluded.

For due process violations, the same independent source analysis applies. But here’s the key difference: Due process violations require proof that the procedure was both unnecessarily suggestive and that it created a substantial likelihood of misidentification. The bar is higher than for a Sixth Amendment violation.

Common MBE Traps

The examiners know exactly where students get confused. Watch for these common traps:

Trap #1: Assuming all lineups require counsel. Remember, only post-indictment lineups trigger the Sixth Amendment right. Pre-indictment lineups are evaluated only under due process.

Trap #2: Thinking photo arrays require counsel. They don’t, even after indictment. The defendant isn’t present, so there’s no critical confrontation requiring counsel’s presence.

Trap #3: Confusing “suggestive” with “violates due process.” A procedure can be suggestive without violating due process. It must be unnecessarily suggestive AND create a substantial likelihood of misidentification. Some suggestiveness is tolerated, especially in showups conducted immediately after a crime.

Trap #4: Forgetting about independent source. Even if an identification procedure was conducted improperly, the in-court identification may still come in if there’s an independent basis for it.

Showups: The Exception That Proves the Rule

Showups deserve special attention because they’re inherently suggestive—the witness is shown one person and essentially asked “is this the guy?” Yet they’re routinely upheld under due process.

Why? Courts recognize that showups serve important law enforcement purposes when conducted shortly after a crime. They allow for quick release of innocent suspects and fresh identifications while memories are sharp. The key is that they must be conducted promptly after the crime.

An MBE question might give you a showup conducted three days after a robbery with no explanation for the delay. That’s unnecessarily suggestive. The justification for showups evaporates when there’s time to conduct a proper lineup or photo array.

What You Need to Memorize

Here’s your takeaway for identification procedures on the MBE:

For lineups: Right to counsel applies only if post-indictment. Pre-indictment lineups are evaluated only under due process. Physical presence of the defendant is what triggers the potential right to counsel.

For photo arrays: No right to counsel ever, even post-indictment. Only due process protections apply. Ask whether the array was unnecessarily suggestive.

For showups: No right to counsel. Evaluate under due process, but remember courts are more tolerant of suggestiveness when the showup occurs promptly after the crime.

For all procedures: If there’s a violation, the identification may still be admissible if there’s an independent source. Look for facts about the witness’s opportunity to observe during the crime.

Due process standard: The procedure must be both unnecessarily suggestive AND create a substantial likelihood of misidentification. Both prongs are required.

These rules appear across multiple Criminal Procedure questions on every MBE. They’re frequently tested in combination with Fourth Amendment search and seizure issues or Fifth Amendment Miranda questions, so you need the distinctions down cold. If you want all 104 Criminal Law and Procedure rules organized for active recall—including the identification procedure rules, Miranda, search and seizure, and everything else Criminal Procedure throws at you—FlashTables breaks down each rule into memorizable elements with the exact distinctions the MBE tests. The two-column format makes it easy to cover one side and quiz yourself on what triggers the right to counsel versus what’s purely a due process question.

Master these identification rules now, and you’ll confidently spot the issues when they appear in those dense fact patterns on test day.