1. Exclusionary Rule and Identification Procedures
Unit 8
(Part 1)
Exclusionary Rule and Identification Procedures

2. Identification Procedures
Both pretrial and in-court identifications may be inadmissible if a defendant’s Fourth, Fifth, Sixth, or Fourteenth Amendment rights were violated during the investigative identification procedure.

3. The Three Basic Types of Identification Procedures
Lineups
Show Ups
Photographic Arrays

4. Lineups
A lineup is the presentation to a victim or witness of a line of persons who all look similar to see if one of them is identified as the perpetrator of the crime.

5. Show Ups
A show up is the one-on-one presentation of a suspect to a victim or witness to a crime for identification purposes.

6. Photographic Array
A photographic array is a presentation to a witness of a number of photographs for identification of the perpetrator.

7. The Crux of the Concern About Identification Procedures
Identifications made prior to initiation of adversary judicial proceedings are scrutinized under the Fifth and Fourteenth Amendments.
The proscription is against procedures that are unnecessarily suggestive and conducive to irreparable mistaken identification.

8. Only Unnecessarily Suggestive Pretrial Identifications Are Illegal
The question is whether, under the totality of the circumstances, the identification procedure was unnecessarily suggestive.

9. Neil v. Biggers Five-Factor Test for Suggestive Identification Cases
The opportunity of the witness to view the suspect 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

10. Simmons v. United States Totality of Circumstances Also Applies to Photographic Identification
The danger of misidentification is greatly increased if the police display to the witness only the picture of a single individual who resembles the person the victim saw.
Misidentification is also greatly increased if the police show the witness pictures of several persons among which the photograph of a single individual recurs or in some way is emphasized.
The chance of misidentification is also heightened if police indicate to the witness that they have other evidence that one of the persons pictured committed the crime.

11. Types of Suggestive Identification Procedures
Size of the lineup or array
Collaboration between witnesses
Police instructions or statements to witnesses
Makeup of the lineup or photo array
Different appearance of the accused
Other suggestive procedures pertaining solely to photo arrays

12. Size of the Lineup or Array
A law enforcement officer presenting a single person or photograph is conducting one of the most suggestive identification procedures.
Repeated encounters between the witness and the suspect or repeated presentation of images of the same suspect in a single photographic array is highly suggestive.

13. An Exception
Even though the use of a single photograph or show up is highly suggestive, the court will nonetheless justify its use in certain emergency or exigent circumstances, such as when the witness is in danger of dying.

14. Makeup of the Lineup or Photo Array
The officer should avoid placing the accused with others of a different race in the lineup or array, asking the accused to dress in a particular way, and presenting others in the lineup or array who are so dissimilar in appearance to the defendant that he or she stands out.
If the makeup of the lineup or array focuses the attention of the witness on a particular suspect, it is likely to be viewed as suggestive, and the trial court will have to decide its effect under the totality of the circumstances test.

15. Different Appearance of the Accused
The most important thing in creating a lineup or photo array is that the lineup or array includes persons matching the defendant’s general physical description.

16. The Test
“The test is whether the photograph of the accused, [or the defendant himself in a lineup], matching descriptions given by the witness, so stood out from all the other photographs as to suggest an identifying witness that that person was more likely to be the culprit ” U.S. v. Jakobetz
“The individuals in the photographic display and lineup [should be] of the same race, possess similar physical features, and be alike in size, age, and dress.” Salam v. Lockhart

17. Other Suggestive Procedures Pertaining Solely to Photo Arrays
Different type or quality of photos
Contents on and around the photographs
Alteration and disguise of the photographs

18. Different Type or Quality of Photos
A test used to determine if the type or quality of the photo is suggestive is whether the difference in photos tends to draw attention to a particular defendant’s photograph.
The quality of the photographs needs to be similar enough that a witness’s attention will not be drawn to one photo because it stands out as being of a different quality.

19. Mixing Black-and-White and Color
The use of both black-and-white and color photographs in the same array is generally discouraged.

20. Contents On and Around the Photographs
Matters such as the captions of where the person depicted was arrested, the use of photo arrays in which the accused’s photo contained a height measurement chart, and the surroundings in which a suspect is depicted generally (e.g., in a hospital room), have all been the bases for defendants’ attacks upon photographic identifications.

21. Determining the Reliability of a Suggestive Identification
The five factors of the Biggers case
Is the identification clothed with indicia of reliability? Are there facts indicating an identification is reliable?

22. The Five Factor Test of Biggers
The opportunity of the witness to view the suspect at the time of the crime
The witness’s degree of attention
The accuracy of the witness’s prior description of the suspect
The level of certainty demonstrated by the witness at the confrontation
The length of time between the crime and the confrontation

23. What Contributes to the Reliability?
The longer the witness’s opportunity to view the offender
The greater attention to the offender at the time of the offense
The more detailed the initial description from the witness
The greater the certainty demonstrated by the witness
The shorter the length of time between the crime and the lineup.

24. Biggers -- The First Factor: The Witness’s Opportunity to View the Criminal at the Time of the Crime
The general rule is that if the witness had a good opportunity to view the defendant, then even if the pretrial identification was suggestive, it will be admissible because the viewing opportunity provided an independent basis for the identification.

25. Biggers -- The Second Factor: Witness’s Degree of Attention
The second factor is whether the degree of attention the witness paid to the suspect during the event was sufficient that one could say that the witness’s ability to identify the accused in court was based on the independent identification and not upon an unnecessarily suggestive identification procedure before trial.

26. Biggers -- The Third Factor: Accuracy of the Description
There is no set rule for determining how accurate an initial description of the defendant must be in order to find an independent basis to show the identification was reliable. The courts tend to look at whether or not the witness was able to approximate the defendant’s age, build, height, weight, skin color, clothing, and any other physical characteristics.

27. Biggers --The Fourth Factor: Level of Certainty Demonstrated by the Witness at the Confrontation
There are two issues surrounding the certainty of a witness:
First is the degree of certainty required to support the admissibility of an identification.
Second is the point at which the witness became certain.

28. Biggers -- The Fifth Factor: Length of Time Between the Crime and the Confrontation
The shorter the time interval between the crime and the identification, the more reliable it is. Nonetheless, a long interval alone is usually not enough to invalidate an otherwise seemingly reliable identification.