1. Chapter 16 Identification Procedures “Cases of mistaken identification constituted by far the greatest cause of actual or possible wrong convictions” - The Devlin Committee (UK)

2. Featured Case Jackson and Williams In 1983 a 27 year old woman was raped by two men in Dallas, Texas. James Williams and Raymond Jackson were identified by the victim. The jury was shown photos that had records of other past crimes, plus the victim confirmed they were the rapists. Later DNA evidence exonerated the men, after they served more than 16 years.

3. How could a rape victim be wrong about who committed such an assault? Were there any constitutional violations that made a mistaken identification possible? What weight should we give eyewitness identifications at trial? Applying the Law Eyewitnesses

4. Learning Objectives What constitutional safe guards can prevent erroneous identifications? Define lineup, showup and photo lineup. Explain who the 4 th, 5 th and 6 th Amendment apply to identification procedures. What impact does due process have on identification procedures?

5. Typical kinds of Police Identification Identifications are critical to police work Three basic types are used: – Lineups – multiple people in a single group with one suspect are shown to the witness – Showups – single suspect is shown to the witness – Photographic Lineup – multiple photos are shown to the witness either in groups or sequence, with suspect included

6. Fourth Amendment Rights Can not compel suspect to participate in lineup absent consent or lawful custody – Brief detentions for showups may be possible – But overall, need probable cause to transport for lineups 4 th Amendment applies to any detention – Photographic lineups are not a detention

7. Fifth Amendment Rights No right to refuse to participate in lineup if in lawful custody Can be compelled to – Pose – Wear specific clothes – Speak specific words

8. United States v. Wade Billy Joe Wade was arrested for bank robbery. Wade had counsel appointed to represent him. Wade was compelled to appear in a lineup without counsel being present and was identified as the robber. On appeal the Supreme Court ruled that counsel must be present or it may constitute a violation of the 6 th Amendment, not necessarily the 5 th. 388 US 218 (1967)

9. Right to Counsel Generally a suspect has no right to have counsel present. After arrest counsel may be present – But counsel does not run the line up – Counsel observes conditions and may object to admission of identification if it violates due process (later in front of a judge)

10. Kirby v. Illinois William Shard was robbed by two men. Police stopped Thomas Kirby, who was arrested and taken to police station. In a showup Shard identified Kirby as the man. It was NOT a violation of the 6 th Amendment right to counsel because the showup occurred before the beginning of criminal prosecution. 406 US 682 (1972)

11. Moore v. Illinois Moore arrested for rape. The victim was shown Moore after hearing evidence of his guilt. At trial she testified the identification was made in part based on the information provided by the prosecution. The Supreme Court ruled the identification violated the right to counsel and was improperly suggestive. 434 US 220, (1977)

12. Is it improper for a witness to have information about a suspect the police hold? What could an attorney do to mitigate any problems? Isn’t the very presence of a suspect in custody incriminating to most witnesses? Applying the Law What can a witness know?

13. Due Process Procedural Due Process – Constitutional requirement that whatever method is used be fair – Can not create a bias against a suspect Typically must avoid undue suggestion that suspect is guilty party Individuals must have similar characteristics for lineups

14. Figure 16-4 How Due Process Applies to Lineups

15. Foster v. California Foster was accused of robbing a Western union office. In first lineup Foster (who was 6 foot tall) was in a lineup with 2 smaller men. The witness was also shown Foster alone. Later in a second lineup the witness was shown Foster and 4 different men. The Supreme Court held the difference in possible suspects, the showup and the repeated viewing were unnecessarily suggestive. 394 US 440 (1969)

16. Recommended Guidelines Only one suspect should be included in each lineup. All fillers should be physically similar to the suspect. Rotate the location of the suspect each time. Use a minimum of four fillers. New suspects require that new fillers be used. Fillers need not be uniformly similar to suspect. Any unique characteristic should be copied.

17. Sequential Lineups Emerging Trend in some states – Maryland, Georgia, Maryland, West Virginia, Connecticut and North Carolina Seems to eliminate false identifications First a police officer unconnected with the case is given photographs, one of which is suspect – officer not told who is suspect Photographs are shown in sequence to witness

18. Preparing Witnesses Problems exist if witness is to see more than one lineup or photographic lineup Should use blank lineups (no suspects) to prevent misidentification Keep witnesses separate from one another No coaching of witnesses Make detailed report on results of all lineups Modifications of photos to conform to suspect is permissible

19. Due Process at Showups Showups are innately suggestive Great care must be taken to prevent misidentification Traditionally showups were limited to emergency situations – Witness injured or dying But permissible now if meet due process guidelines

20. Neil v. Biggers Biggers was accused of rape. The victim was show photographs but did not identify the defendant. After 7 months she was invited to a showup, where defendant was asked to say ‘shut up or I will kill you”. She identified the defendant. Lower courts dismissed the identification as too suggestive. The Supreme Court upheld such identifications as not being too suggestive. 409 US 188 (1972)

21. Factors to Consider for Showups The opportunity of the witness to view the crime. The degree of attention the witness was paying to events. The level of certainty expressed by the witness. How closely prior identifications conform to current suspect.

22. Factors to Consider for Showups (cont) Type and extent of prior inaccuracies in witness’ identification The length of time between the crime and the line up Court will review the totality of circumstances to judge due process

23. Identifications at Trial Witnesses frequently requested to make identifications at trial Prosecution often attempts to focus on the accuracy of its witnesses Defense seeks to show misidentification – Often focusing on problems like eyesight or poor memory Experts can also occasionally be called

24. Constitutional Issues If a constitutional issue is raised about identification, must hold hearing about it – Watkins v. Sowders 449 US 341 (1981) Hearing must be in camera or automatic reversal of conviction Fruit of Poisonous Tree applies to in-court identifications

25. Problems with Witness If no current memory – May still testify that they identified witness in pretrial photographic lineup – Obviously can attack credibility of witness

26. United States v. Owens John Foster was attacked and suffered severe injuries, including to his memory. Before trial he identified Owens as his attacker. At trial he had no memory of Owens. The Supreme Court ruled the pre- trial identification could be admitted. 484 US 554 (1988)

27. If a witness has no current memory should he be able to testify? What rights of the defendant may be violated in such cases? What about the rights of the victim here? Is there any clear law or guideline that can be applied? Applying the Law Right to Confront Witness