How effective is the presence-of-counsel safeguard? Attorney perceptions of suggestiveness, fairness, and correctability of biased lineup procedures.

Criminal defendants should be protected from suggestive lineup procedures by the presence of their attorneys at lineups. This protection is effective only if attorneys are sensitive to factors that affect lineup suggestiveness. This study assessed attorney sensitivity to foil, instruction, and presentation biases. Stimuli were 8 videotaped lineups in which the 3 factors were manipulated between subjects. Assistant public defenders (N = 109) viewed the videotapes and completed a questionnaire that assessed perceptions of suggestiveness, fairness, and correctability. Attorneys were very sensitive to foil bias but only somewhat sensitive to instruction bias. Their perceptions of presentation bias were contrary to empirical research results. Attorneys reported that they are rarely present at lineups. These results imply that the presence-of-counsel safeguard may be less effective than it could and should be.