In order to prove that The Mechanic got George’s “dangling” Twix as a freebie, George creates a Candy Lineup – hoping to show that The Mechanic did in fact eat George’s Twix and not a 5th Avenue Bar. Did George’s Candy Lineup satisfy the Constitutional requirements for a permissible lineup, or would a court deem it as being too suggestive?
A lineup is a type of procedure used by law enforcement to show that an eye witness to a crime can identify the accused perpetrator. The general rule regarding identification procedures is that they must be not “so unnecessarily suggestive and conducive to irreparable mistaken identification” such that the Due Process rights of the accused are violated under the 14th Amendment. Meaning, the witness has got to be able to tell the difference between nougat and cookie without being told which one is nougat and which one is the cookie. The analysis regarding such suggestiveness is a totality of the circumstances inquiry, and there is no simple rule as to what is or is not too suggestive. However, certain safeguards are Constitutionality mandated, such as the accused’s right to have an attorney present at a post-indictment lineup. Police often use additional safeguards as well, such as “blind,” “double blind,” and “sequential” lineups, or by having all participants in a lineup wear similar “swirling chocolate” clothing. A “blind” lineup is where even the police investigator conducting the lineup doesn’t know who the suspect is, “double blind” is where the investigator also tells the eye witness that he or she doesn’t know, and a “sequential” lineup is where an eyewitnesses views individuals one at a time rather than all in one group.
So let’s investigate whether under a totality of circumstances analysis George has constructed a fair and Constitutionally permissible lineup. First off, the lineup is neither “blind,” “double blind,” nor sequential. George tells Willie the dealership manager that only he knows the true secret candy identities, thus totally eliminating this lineup as being either a “blind” or “double blind.” The lineup is not “sequential” either as all the candy are laid out in one group. There’s also no defense attorney, though that would not be a problem here as The Mechanic has yet to be indicted on any candy related criminal charges. Another major problem is that all of the candy bars are, in fact, Twix! This is extremely suggestive, as no matter which candy bar The Mechanic chooses he was automatically going to pick the Twix bar. Almost any court would say that this was unduly suggestive, as The Mechanic had no other choice but to pick a Twix Bar. George even admits that the whole thing was a set-up. Therefore, it is fair to say that George’s Candy Lineup would certainly be considered too suggestive.
A critical factor in determining whether a lineup or any identification procedure in general is too suggestive is in who actually conducted the procedure. When the identification procedure was actually conducted and arranged by law enforcement, like in a lineup, then that procedure will be subject to a much stricter judicial assessment. When the identification is made more circumstantially and without law enforcement then such an identification is subject to much less judicial inquiry. Since George (the law enforcer in this case) is actually conducting the cookie inquiry, he is going to find himself subject to an intense judicial inquiry.
The best way for George to construct this lineup would have been to have gotten Jerry or another 3rd party to gather many different candy bars together, and then see if The Mechanic chose the Twix bar. Or, he could have shown The Mechanic individual candy bars and have him then decide which one was the Twix bar, rather than putting them all in a group. That would have made the lineup blind or double blind, sequential, and not very suggestive because all the candy bars would have looked different (while in a police lineup it is less suggestive if all participants look similar, here it is just the opposite).
Better yet, if he really just wanted a snack, he could’ve just eaten all 10 Twix from the candy lineup and stashed some cookie crunch crumb in the corner of his lip for later.