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criminal_procedure_4e_ch09.pdf

LEARNING OBJECTIVES When you complete this chapter, you should be able to:

� Outline pretrial suspect identification techniques. � Explain the problem of witness misidentification. � Summarize identification techniques during the trial and issues involving witness credibility. � Explain how the exclusionary rule operates in the identification context.

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CHAPTER OUTLINE

Identification Procedures and the Role of Witnesses

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OUTLINE

Introduction: Dealing with Witnesses to Crimes

Constitutional Restrictions on Identification Procedures

Right to Counsel Due Process Self-Incrimination The Fourth Amendment

Pretrial Identification Techniques Lineups

Steps to Minimize Suggestiveness Showups

In-Court Showups Photographic Identifications

Identification Procedures: flaws and fixes Double-Blind Lineups Virtual Officer Lineups

Identification during Trial Forms of Questions Refreshing a Witness’s Memory Witness Credibility

Impeachment Rehabilitation

The Exclusionary Rule and Identifications Tainted Identifications Identifications Resulting from Illegal

Searches and Seizures Summary Key Terms Key Cases Review Questions Web Links and Exercises

INTRODUCTION

Dealing with Witnesses to Crimes

Identification procedures include those systems and activities that allow witnesses of crimes to identify suspected perpetrators. The three most common types of identification procedures are lineups, showups, and photographic arrays. In a lineup, the suspect is placed alongside several other people (sometimes called “fillers,” “foils,” or “distractors”) who resemble him or her, and the witness (or victim) picks the suspect out of the lineup. The fillers may be jail inmates, actors, or volunteers. In a showup, the suspect is brought before the witness alone, so the witness can be asked whether that person is the perpetrator. Finally, in a photographic array (or photographic display), several photographs, including one of the suspect, are shown to a witness or victim, and he or she is asked to pick out the perpetrator.

Identification procedures fall into two broad categories: (1) out of court and (2) in court. The three identification procedures just described—lineups, showups, and

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278 Part 3 • Interrogations, Confessions, and Identification Procedures

United States v. Wade (388 U.S. 218 [1967])

photographic arrays—occur out of court and prior to trial. There are, however, many occasions in which the prosecution may wish to have a witness identify the suspect in court and during trial. Of course, not all witnesses recollect accurately and/or can be trusted with regard to a suspect’s identification. It is therefore important to consider the witness examination process with an eye toward witness identification.

Naturally, it is in the prosecution’s interest to introduce evidence that a witness or victim picked the perpetrator out of a lineup. However, it is not as simple as demonstrating that a witness identified the perpetrator. The identification procedure must be fair as well as conform to constitutional requirements. Those constitutional requirements place restrictions on what officials can do in terms of arranging lineups, showups, and photographic arrays. And these restrictions are critical because witnesses to crimes are frequently inaccurate in their descriptions.

Accordingly, this chapter begins with a discussion of the constitutional restrictions that govern the identification process. Next, out-of-court identification procedures are considered followed by in-court identification procedures and the witness examination process. The chapter concludes with a look at the role of the exclusionary rule as it applies to in-court and out-of-court identification procedures.

CONSTITUTIONAL RESTRICTIONS ON IDENTIFICATION PROCEDURES

Identification procedures have been challenged on several grounds, stemming from the Fourteenth Amendment’s due process clause, the Fifth Amendment’s self-incrimina- tion clause, and the Sixth Amendment’s right to counsel clause. People have also chal- lenged the constitutionality of identification procedures on Fourth Amendment grounds.

Right to Counsel

In United States v. Wade (388 U.S. 218 [1967]), a defendant was placed in a police lineup, without his attorney present, after he had been indicted for a crime. The Supreme Court held that this violated the Sixth Amendment because a postindictment lineup is a “critical stage” in the criminal process. Further, “the presence of counsel [at postin- dictment lineups] is necessary to preserve the defendant’s basic right to a fair trial” (p. 227). Indeed, the right to counsel extends well beyond the identification stage (see Chapter 11).

The key in Wade was that the lineup was postindictment—that is, conducted after charges had been filed. Had charges not been filed, a different decision would have probably resulted. Another important feature of the Wade decision was that it distin- guished lineups from “various other preparatory steps, such as systematized or scien- tific analyzing of the accused’s fingerprints, blood sample, clothing, hair and the like” (p. 227). Counsel is not required for these types of activities because

[k]nowledge of the techniques of science and technology is sufficiently avail- able, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government’s case at trial through the ordinary processes of cross-examination of the Government’s expert witnesses and the presentation of the evidence of his own experts. (pp. 227–228)

Recently, the Supreme Court has extended the Sixth Amendment right to counsel to include other hearings, such as preliminary hearings and arraignments (see, e.g., Kirby v. Illinois, 406 U.S. 682 [1972]).

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Chapter 9 • Identification Procedures and the Role of Witnesses 279

Manson v. Braithwaite (432 U.S. 98 [1977])

Stovall v. Denno (388 U.S. 293 [1967])

Due Process

The Supreme Court has also clearly stated that the Fourteenth Amendment’s due process clause bears on the constitutionality of identification procedures. For example, in Stovall v. Denno (388 U.S. 293 [1967]), the Court held that the accused is entitled to protection against procedures “so unnecessarily suggestive and conducive to irrepara- ble mistaken identification” (p. 293) as to amount to a due process violation. In general, for an identification procedure to satisfy the due process clause, it must be (1) reliable and (2) minimally suggestive.

Whether an identification procedure is reliable is determined in light of the facts and circumstances surrounding the case. The following factors are used in determining whether an identification procedure is reliable:

The opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of the witness’s prior descrip- tion of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. (Neil v. Biggers, 409 U.S. 188 [1972], p. 199)

Indeed, the Court stated in Biggers that reliability is more important than suggestiveness. In the Court’s words, it is “the likelihood of misidentification which vio- lates a defendant’s right to due process” (p. 199). This position was reaffirmed in the case of Manson v. Braithwaite (432 U.S. 98 [1977]), where the Court held that the totality of circumstances determines whether an identification procedure is unreliable.

Suggestiveness has also been important in determining whether an identification procedure violates the due process clause. If the procedure is set up such that the witness or victim is almost guaranteed to pick the perpetrator, it is unnecessarily sug- gestive. If, for example, an offender is 6 feet tall and placed in a lineup with several others who are considerably shorter, then the procedure will be considered suggestive.

Self-Incrimination

The Fifth Amendment’s self-incrimination clause has been invoked with regard to identification procedures. In particular, some defendants have argued that being forced to participate in a lineup or photographic array is itself incriminating and, as such, violates the Fifth Amendment. However, in United States v. Wade, the Court held that the privilege against self-incrimination does not limit the use of identification procedures.1

DECISION-MAKING EXERCISE 9.1

Counsel during a Lineup

Sam Linde has been arrested and charged with burglarizing Paul’s Appliance Store. Authorities also suspect that Linde has burglarized several other appliance stores in the area, including John’s Appliance Store. Suppose the police want to place Linde

in a lineup for a witness who saw him leave John’s Appliance Store in the middle of the night. Must counsel be present? (You may recall a similar exercise from the previous chapter, which dealt with confessions, but here the issue is a lineup.)

1 Note that the Fifth Amendment would apply if a defendant in a lineup was forced to answer questions from the police or witnesses.

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280 Part 3 • Interrogations, Confessions, and Identification Procedures

Hayes v. Florida (470 U.S. 811 [1985])

Schmerber v. California (384 U.S. 757 [1966])

The reason the Court offered is that even though incriminating information can result from identification procedures, such evidence is physical or real as opposed to testimo- nial. In Wade, the Court decided on the constitutionality of an identification procedure, in which the accused was required to utter words that were presumably uttered by the perpetrator. The Court concluded that this type of identification procedure was valid because the defendant’s voice was used as an identifying characteristic, not as a means to get him to express his guilt. Thus, the Fifth Amendment does not apply to identification procedures.

The Fourth Amendment

Lastly, identification procedures have been challenged on Fourth Amendment grounds. Like the Fifth Amendment, the Fourth Amendment has yet to be successfully invoked with regard to identification procedures. According to the Supreme Court, no one enjoys a reasonable expectation of privacy in characteristics that are exposed to the public. For example, if an offender is viewed by a witness, the witness’s identification of the offender will be admissible in court, even though the identification is incriminating. The offender/defendant may argue that the act of being viewed by the witness is incriminating, but the courts consider this sort of knowing exposure as beyond consti- tutional protection.

One of the leading cases in this area is Schmerber v. California (384 U.S. 757 [1966]). There, a sample of the defendant’s blood was taken by a doctor in a hospital following the defendant’s arrest. The sample was used as evidence in the defendant’s trial for drunk-driving. The defendant argued that the blood sample was incriminating and should be excluded from trial. The Supreme Court disagreed:

Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner’s arrest. (pp. 770–771)

Obviously, if the police want to seize a person so as to obtain fingerprints, a voice exemplar, or some other form of evidence, they are bound by Fourth Amendment restrictions. As noted elsewhere in this book, probable cause is required before the police can seize a person. Assuming a seizure is justified, however, then any real or physical evidence obtained by the arrestee will be admissible.

There is at least one exception to the Fourth Amendment’s probable cause require- ment as it pertains to identification procedures. In Hayes v. Florida (470 U.S. 811 [1985]), the Court stated:

There is . . . support in our cases for the view that the Fourth Amendment would permit seizures for the purpose of fingerprinting, if there is reason- able suspicion that the suspect has committed a criminal act, if there is a reasonable basis for believing that fingerprinting will establish or negate the suspect’s connection with that crime, and if the procedure is carried out with dispatch. (p. 817)

However, if conducted in the home, such a seizure must be preceded by judicial authorization.

Summary. Only two constitutional provisions actually place restrictions on identification procedures: the Fourteenth Amendment’s due process clause and the

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Chapter 9 • Identification Procedures and the Role of Witnesses 281

Sixth Amendment’s right to counsel clause. The Fifth Amendment, while important to confession law, does not come into play when identification procedures are at issue. Similarly, the Fourth Amendment does not apply to identification procedures directly, but it does apply indirectly insofar as probable cause is required if law enforcement officials plan to seize somebody for the purpose of identifying him or her. See Figure 9.1 for a summary of these issues.

PRETRIAL IDENTIFICATION TECHNIQUES

As described earlier, there are three types of pretrial identification techniques: lineups, showups, and photographic arrays. Each of these identification procedures is described in a following section, with particular focus on how the constitutional restrictions already discussed apply to it.

Lineups

Suspects can be forced to participate in lineups because lineups exhibit physical charac- teristics, not testimonial evidence. Indeed, suspects placed in lineups can also be required to supply voice exemplars but solely for identification purposes, not as a confession. If a suspect refuses to participate in a lineup, he or she can be cited with contempt (Doss v. United States, 431 F.2d 601 [9th Cir. 1970]), and the prosecutor can comment at trial about the suspect’s refusal to cooperate (United States v. Parhms, 424 F.2d 152 [9th Cir. 1970]).

STEPS TO MINIMIZE SUGGESTIVENESS As noted earlier, the due process clause restricts identification procedures. In particular, an overly suggestive lineup violates due process. In United States v. Wade, the Supreme Court noted that a lineup becomes suggestive when, for instance,

all in the lineup but the suspect were known to the identifying witness, . . . the other participants in a lineup were grossly dissimilar in appearance to the suspect, . . . only the suspect was required to wear distinctive clothing

FIGURE 9.1 Summary of Constitutional Issues in Identification Procedures

• Fourth Amendment: The Fourth Amendment protects from an unlawful search or seizure conducted for the purpose of securing an identification. There is an excep- tion, however: A witness can identify a suspect who is wrongfully seized if the identification is sufficiently independent of the illegal seizure.

• Fifth Amendment: Technically, the Fifth Amendment does not apply to identifica- tion procedures. This is true even if a suspect is asked to supply a voice exemplar, if this is done for the purpose of identification (and not a confession or admission).

• Sixth Amendment: The Sixth Amendment right to counsel exists in the context of making an identification but only in limited circumstances. First, the right to counsel only applies if formal adversarial charges have commenced. Second, a suspect in a photographic array does not enjoy Sixth Amendment protection, regardless of whether charges have been filed.

• Fourteenth Amendment: The Fourteenth Amendment’s due process clause always applies to identification procedures. In particular, if an identification procedure is too suggestive, it will violate the Fourteenth Amendment.

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282 Part 3 • Interrogations, Confessions, and Identification Procedures

which the culprit allegedly wore, . . . the suspect is pointed out before or during a lineup, and . . . the participants in the lineup are asked to try on an article of clothing which fits only the suspect. (p. 233)

The Project on Law Enforcement Policy and Rulemaking proposes several guide- lines for minimizing suggestiveness in a police lineup:

• The lineup should consist of at least five people, including the suspect. • The persons in the lineup should have similar physical characteristics. • The suspect should be permitted to choose his or her place in line. • Each person in the lineup should be required to take whatever specialized action

is required (e.g., to utter certain words). • The persons in the lineup should be warned to conduct themselves such that the

suspect does not stand out. • A lineup should be photographed or videotaped.2

The International Association of Chiefs of Police (IACP) Legal Center has recom- mended similar guidelines:

• A lineup should consist of five to six people. • Each participant in the lineup must sign the appropriate waiver form, unless his

or her counsel is present. • Everyone in the lineup should be of the same sex and race, approximately the

same age, and approximately the same height, weight, coloring, build, and so on. • Everyone in the lineup should wear approximately the same clothing. • The accused should be placed in the lineup at random, so as not to stand out. • Persons known to the witness should not be placed in the lineup. • Private citizens participating in the lineup (if insufficient numbers of prisoners

are available) should sign a written consent form indicating they are aware that no charges have been filed against them, that they are free to leave at any time, and so on.

• Each witness should view the lineup separately so one witness does not unduly influence another in his or her identification of the perpetrator.

• Each participant in the lineup should be given the same instructions and should perform the same acts (e.g., supply a voice exemplar).

• Participants in the lineup should be instructed not to make any statements or comments unless ordered to do so.

• Frontal and side-profile photographs of the lineup should be taken. • A single officer should oversee the lineup procedure. • A written waiver of counsel should be obtained if the suspect waives his or her

Sixth Amendment right to have counsel present at a postindictment lineup.3

An important restriction concerning lineups is that people cannot be indiscrimi- nately picked off the street for participation. If a person is not already in custody, the police must have reasonable suspicion that he or she has committed the crime in question (see Hayes v. Florida). However, if the person is in custody prior to the lineup, then he or she can be forced to stand in a lineup without any judicial authorization (see United States v. Anderson, 490 F.2d 785 [D.C. Cir. 1974]).

2 From Project on Law Enforcement Policy and Rulemaking, “Eyewitness Identification,” Model Rules for Law Enforcement (Tempe, AZ: Arizona State University, 1974). 3 International Association of Chiefs of Police, “Eyewitness Identification,” in Legal Points (Gaithersburg, MD: IACP Legal Center, 1975).

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Moore v. Illinois (434 U.S. 220 [1977])

Neil v. Biggers (409 U.S. 188 [1972])

Showups

A showup is a one-on-one victim/offender confrontation, usually conducted outside the courtroom setting. Specifically, a showup is usually held when the suspect has been apprehended shortly after having committed the crime and the witness is still at or near the scene of the crime. A lineup is always preferable to a showup (because a lineup consists of several potential suspects); however, a showup is necessary under certain circumstances.

For example, when a witness is immobile and cannot be present at a lineup, a showup is an effective alternative. In Stovall v. Denno, the Supreme Court noted, “Faced with the responsibility for identifying the attacker, with the need for immediate action and with the knowledge that [the victim] could not visit the jail, the police followed the only feasible procedure and took [the accused] to the hospital room” (p. 295). In a simi- lar vein, a showup is preferable when the suspect is immobile (see Jackson v. United States, 412 F.2d 149 [D.C. Cir. 1969]).

A showup is sometimes desirable to facilitate prompt identification when time is of the essence. If the witness is required to wait for a lineup, for instance, misidentifica- tion is more likely to result. A showup conducted more than 60 minutes after the crime, however, will usually not be upheld (see United States v. Perry, 449 F.2d 1026 [D.C. Cir. 1971]). But in at least one case, the Supreme Court upheld a stationhouse showup in which no emergency existed. In Neil v. Biggers (409 U.S. 188 [1972]), the Court sanc- tioned an arranged one-on-one showup, even though it took place well after the point at which the crime in question was committed. The Court noted, given the facts, that there was “no substantial likelihood of misidentification” (p. 201). This was because the witness had an opportunity to view the suspect for almost 30 minutes, under good lighting, prior to the showup.

The same constitutional provisions that govern lineups also govern showups. Specifically, the Sixth Amendment right to counsel applies but only after adversarial proceedings have commenced (see Moore v. Illinois, 434 U.S. 220 [1977]). Due process

DECISION-MAKING EXERCISE 9.2

Altering the Suspect’s Appearance

On December 24, the Toy Emporium was robbed. The sus- pect escaped before security guards and police could capture him, but store security cameras and several witnesses indi- cated that the crime was committed by a white male who was 6 feet, 3 inches tall, approximately 270 pounds, between 25 and 30 years of age, wearing a green trench coat, and having long hair. Two hours after the robbery, a man was

arrested in a nearby town because he fit the general description of the robber. However, he was bald and wearing a brown trench coat. A lineup was conducted, in which the suspect was required to wear a wig resembling the long hair of the perpetrator. He was positively identified by several witnesses. Does the act of requiring the suspect to alter his appearance conform to constitutional requirements?

DECISION-MAKING EXERCISE 9.3

What Constitutes a Valid Showup?

The police believe that Anna Delgado was involved in a hit-and-run car accident in which a man was killed. They do not have the reasonable suspicion required to seize Delgado for appearance in a lineup, but they do have a

witness to the accident. The police decide to take the wit- ness to Delgado’s place of work to make an identification. Delgado is identified at her place of employment. Is this type of showup valid?

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protections also exist. If the showup is unnecessarily suggestive under a totality of circumstances analysis, then any identification that comes from it will not be admissible in court.

IN-COURT SHOWUPS What happens when a witness identifies the accused for the first time in court? This has happened on occasion and is best described as an in-court showup. The key feature of an in-court showup is that the witness has not identified the suspect, either in a lineup or related procedure, prior to trial. How do the courts deal with this? The answer is important because an in-court identification is highly sugges- tive. Namely, the suspect has already been identified by virtue of having been charged with the crime.

The leading case dealing with in-court showups is Moore v. Illinois, although the focus of the case was on the preliminary hearing, not the trial. The Court’s decision would be expected to apply to criminal trials, as well as other adversarial proceedings, however. Here are the facts from that case, as described by the Supreme Court:

After petitioner had been arrested for rape and related offenses, he was iden- tified by the complaining witness as her assailant at the ensuing preliminary hearing, during which petitioner was not represented by counsel nor offered appointed counsel. The victim had been asked to make an identification after being told that she was going to view a suspect, after being told his name and having heard it called as he was led before the bench, and after having heard the prosecutor recite the evidence believed to implicate peti- tioner. Subsequently, petitioner was indicted, and counsel was appointed, who moved to suppress the victim’s identification of petitioner. The Illinois trial court denied the motion on the ground that the prosecution had shown an independent basis for the victim’s identification. At trial, the victim testified on direct examination by the prosecution that she had identified petitioner as her assailant at the preliminary hearing, and there was certain other evidence linking petitioner to the crimes. He was convicted and the Illinois Supreme Court affirmed. (p. 220)

Notwithstanding the clear violation of the Sixth Amendment in this case (which the Supreme Court also pointed out), the Court pointed to the suggestiveness that occurs when a witness identifies a suspect for the first time at a formal hearing:

It is difficult to imagine a more suggestive manner in which to present a suspect to a witness for their critical first confrontation than was employed in this case. The victim who had seen her assailant for only 10 to 15 seconds, was asked to make her identification after she was told that she was going

DECISION-MAKING EXERCISE 9.4

Making a Valid Identification

Wilma Hobbes was unable to identify the man suspected of raping her, even after the police presented her with a photographic array and a lineup. Some weeks later, in a chance encounter while walking through the local

courthouse, Wilma passed a person whom she believed was her rapist. He was subsequently arrested, and she identified him at the trial. Should this identification be considered valid? IS

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Simmons v. United States (390 U.S. 377 [1968])

to view a suspect, after she was told his name and heard it called as he was led before the bench, and after she heard the prosecutor recite the evidence believed to implicate petitioner. Had petitioner been represented by counsel, some or all of this suggestiveness could have been avoided. (pp. 229–230)

What message is to be gleaned from Moore v. Illinois? In general, law enforcement officials should have witnesses identify suspects via lineups, showups, or photographic arrays prior to the point at which adversarial proceedings commence. Any of these iden- tification procedures would result in a less suggestive identification than would be likely at trial. Clearly, though, lineups, showups, and photographic arrays can also be suggestive.

Photographic Identifications

The last type of identification procedure to be considered in this text is the photographic identification array. It involves displaying a picture of the suspect along with pictures of several other people to a victim or witness for the purpose of identification.

Photographic identification procedures approximate real-life lineups by including several people, but they are not subjected to the same constitutional restrictions that lineups are. In particular, there is no Sixth Amendment right to counsel during a photo- graphic identification. However, due process protections do apply.

To minimize due process …