Criminal Procedure for the Criminal Justice Professional 11th Edition John N. Ferdico Henry F. Fradella Christopher Totten Pretrial Visual Identification Procedures Chapter 14 Prepared by Tony Wolusky

Identification Procedures There are different procedures for presenting a victim or witness with suspects of crime. Confrontation—any presentation of a suspect Showup—presentation of a single suspect Photographic Showup—presentation of a single photograph Lineup—presentation at one time of several persons, which may or may not include a suspect Photo Array (Photographic Lineup)—presentation at one time of several photographs, including that of a suspect

Eyewitness Identification Is it possible to conduct a fair lineup when the suspect is unusually tall or short or has very distinctive features or deformities? What are some of the factors that affect perception in the “normal” human adult who is free from any physical perceptual impairments? How might these factors affecting perception interfere with the accuracy of an eyewitness identification?

Perception Perception is a highly selective, unconscious process. Depends on the acuity of the physical senses and a number of psychological factors. The sensory data we “perceive” is processed in light of experience, learning, preferences, biases, and expectations. Impacted by factors like sensory overload and incomplete sensory acquisition.

Memory Memory is an unconscious process that concerns the acquisition, retention, and recall of past experience. All three phases of the process are affected by a number of physical and psychological factors.

Estimator Variables Impacting Perception and Memory Event factors and witness factors can taint the accuracy of memories, including: Time Lighting conditions Changes in visual adaptation to light and dark Duration of the event Speed and distance involved The presence or absence of violence, stress, fear, physical limitations on sensory perception Expectations Age Gender

Systemic Variables Impacting Perception and Memory Systemic variables are those factors that are under the control of the criminal justice system. These variables primarily concern the ways in which pretrial confrontations between suspects and victims or witnesses occur, including the conduct of law enforcement officers.

Counsel at Critical Stages The Sixth Amendment guarantees defendants the right to the effective assistance of counsel at "critical stages" in all criminal prosecutions.

The Wade—Gilbert Rule Post-indictment, pretrial lineup is a "critical stage" of a criminal prosecution that triggers the right to counsel. This rule was based on: The inherent unreliability of eyewitness identifications, and The possibility of improper suggestions being made to witnesses during the confrontation procedure Applies to live showups and lineups at or after initiation of adversarial criminal proceedings.

Waiver of the Wade—Gilbert Right to Counsel Waivers of the right to the presence of counsel at pretrial identification procedures must be knowing, intelligent, and voluntary, as determined by the totality of the circumstances.

The Stovall v. Denno Rule Due process forbids any pretrial identification procedure that is unnecessarily suggestive and conducive to irreparable mistaken identification. All lineups and showups must be conducted in a fair and impartial manner. Suggestivity is evaluated by courts under the totality of the circumstances surrounding the pretrial identification.

Reliability Trumps Stovall Factors to be considered in evaluating the reliability of an identification are: The witness’s opportunity to view the criminal at the time of the crime; The witness’s degree of attention; The accuracy of the witness’s prior description of the criminal; The level of certainty demonstrated by the witness at the confrontation; The length of time between the crime and the confrontation; and The corrupting effect of the suggestive identification.

Identification in Emergency Situations Emergency situations (like impending death of a witness) sometimes require that police conduct a confrontation in a manner that would otherwise be considered to be too suggestive. Assuming reliability, courts will admit such identifications, provided that exigent circumstances exist.

Law Enforcement Guidelines There are guidelines for conducting lineup/photo arrays. They should contain only one suspect and foils similar in appearance to the suspect (including all color or B&W photos). Double-blind administration Thorough witness instruction A minimum of six people should appear. Sequential viewing of photographs or lineup participants one after another is preferable to simultaneous viewing. Suspects should pick their location in the lineup. Foils and suspects, if asked, must all perform the same action (saying words or making gestures).

Additional Considerations Additional considerations include: Requesting witnesses to indicate their level of confidence in any identification; Proper documentation of entire procedure and witness remarks, including video recording; Not providing witnesses with any feedback on their identification; Discouraging multiple lineups or photo arrays involving the same suspect and witnesses; Placing lineup participants in different positions for multiple case witnesses; and Using different foils with each suspect when shown to the same witness.

Pre-Trial Motions to Suppress Identification Evidence If the motion is granted, the court must exclude at trial: Any evidence of the pretrial identification presented as a part of the prosecutor's case-in-chief, and Any identification made by a witness in court who participated in the pretrial identification.

Independent Source Doctrine If a pretrial identification is ruled to be inadmissible, that does not necessarily mean that an eyewitness is barred from making an in-court identification. An in-court identification has an independent source when the identifying witness, by drawing on personal memory of the crime and observations of the defendant during the crime, has such a clear and definite image of the defendant that the witness can make an identification unaffected by the illegal confrontation.