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“Criminal Procedure” – Prof. Passante
CLASSNOTES
Chapter 9: Identification Procedures
THE CONSTITUTION AND IDENTIFICATION PROCEDURES
types of out-of-court, pre-trial identifications:
-lineups: an identification procedure in which the suspect stands in a line w/ other individuals
-photo array: an identification procedure in which witnesses try to select the suspect from one
mug shot (photo show-up) or several mug shots (photo lineup)
-show-ups: an identification procedure in which the witness identifies the suspect (either live or
via a mug shot photo) w/out other possible suspects present
The Wade-Gilbert-Stovall Trio
-Prior to 1967, the judiciary took a “hands off” approach to lineups and show-ups, allowing
juries to assess the reliability of the evidence (rather than the court excluding the evidence).
- In 1967, the U.S. Supreme Ct decided 3 cases involving out-of-court identifications on the
same day.
In U.S. v. Wade (1967), the U.S. Supreme Court held that a lineup without counsel after an
indictment violated a ∆’s 6th Amendment rights.
In Gilbert v. California (1967), the Court held that a “bright-line” per se exclusionary rule
banned the introduction of an out-of-court lineup identification made in violation of the ∆’s right
to counsel.
In Stovall v. Denno (1967), the Court introduced due process rights into the determination of
the admissibility of evidence derived from a pretrial show-up before indictment. The Court
recognized, for the first time, that due process is a basis for challenging identification
testimony.
Stovall due process standard/test: “whether the circumstances were ‘so unnecessarily
suggestive and conducive to irreparable mistaken identification that he was denied due
process of law”
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“Reliability Is the Linchpin”
*Rule: To exclude identification evidence on due process grounds, ∆s must prove by a
preponderance of the evidence [more likely than not] that the totality of the circumstances shows
that:
1) The identification procedure was unnecessarily suggestive.
2) The unnecessarily suggestive procedure created a very substantial likelihood of
misidentification.
-Courts rarely exclude eyewitness identification evidence. Although most identification
evidence is admissible, juries may choose to give the evidence little or no weight.
*The Court has identified 5 factors that, in the totality of the circumstances, should weigh
heavily in determining whether the “unnecessarily and impermissibly suggestive” procedure
created a “very substantial likelihood of misidentification” in lineups and show-ups:
1) a witness’s opportunity to view the suspect
2) a witness’s degree of attention at the time of the crime
3) a witness’s accuracy of description of the suspect prior to identifying him/her
4) a witness’s level of certainty (about the identification) at the time of the identification
procedure
5) the length of time between the crime and the identification
-On your own, look over Table 9.1 (Application of Due Process Test of Eyewitness
Identification Reliability) (p. 305)
– get a general sense of which ID procedures were held to be reliable (and, thus, admissible)
Did the Photo Show-Up Create a “Very Substantial Likelihood of Misidentification”?
Manson v. Brathwaite (1977)
Facts:
Rule: [endorsed totality of the circumstances approach re. exclusion of IDs obtained via
suggestive ID procedures; endorsed the 5 reliability factors]
Opinion:
SOCIAL SCIENCE AND MISTAKEN EYEWITNESS IDENTIFICATION
-Eyewitness identification of strangers carries a high risk of mistaken identification.
-Multiple eyewitnesses frequently describe the same event differently. Typically, no single
witness accurately describes the entire event. Eyewitnesses frequently misidentify, w/ great
confidence, individuals associated w/ the event.
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-Most experts say that mistaken identification of strangers “is the single greatest cause of the
conviction of the innocent.”
Memory and the Identification of Strangers
-Memory is not objective & comprehensive, like a video recording.
Memory is subjective & malleable [pronounced “mal-ee-uh-buh’l”].
-3 phases of memory:
 acquisition of memory: the act of taking in information at the time of the crime
(perception of an event)
 retention of memory: the act of storing information in the brain between the time of the
crime and the lineup, show-up, or picture identification
 retrieval of memory: the act of retrieving information from memory at the time of the
lineup, show-up, or picture identification
The Acquisition Stage
-Our expectations & thought processes affect what we perceive.
-We pay selective attention.
-Observational accuracy of strangers during a crime is affected by…
1) how long the witness observed the perpetrator/stranger (length of time)
2) distractions during the observation
3) focus of the observation
4) stress on the witness during the observation
5) race of the witness and the perpetrator/stranger
The Retention Stage
-Memory fades fastest during the first few hours after an event. In subsequent months & years, it
fades more slowly.
-Strangely, while memory fades, witnesses’ confidence in the accuracy of their observations &
memories increases! Confidence is not related to accuracy!
-During the retention stage, witnesses’ memories are expanded upon w/ newly acquired
information (both accurate & inaccurate).
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Retrieval: Recall and Recognition
-eyewitness recall: eyewitnesses are given prompts, such as a time frame, and then asked to
report what they observed; information retrieved from memory at the time of the lineup, showup, or picture identification
-eyewitness recognition: eyewitnesses are shown persons or objects and then asked to indicate
whether they were involved in the crime; information retrieved from memory at the time of the
lineup, show-up, or picture identification
-errors of omission: a retrieval of memory error, such as failure to recall some detail or
recognize a perpetrator
-errors of commission: a retrieval of memory error, such as selecting an innocent person in a
photo array
The Power of Suggestion
-suggestion: an eyewitness’s interpretation of events is shaped by other people’s suggestions
-People have a normal susceptibility to innocent & subtle suggestion. The content, wording, &
tone of questions affect memory retrieval!
PSYCHOLOGICAL RESEARCH AND EYEWITNESS IDENTIFICATION
-reliability test of eyewitness evidence: allows the admission of identification evidence based
on “unnecessarily suggestive” identification procedures unless ∆s can prove that the suggestive
procedure creates a “very substantial likelihood of misidentification”
-The Manson reliability test is meant to ensure reliability, but research demonstrates that current
ID procedures produce unreliable (inaccurate) results.
-75% of ∆s exonerated by DNA were convicted (at least in part) based on a mistaken eyewitness
identification!
Identification Research Methods
-archival research: consists of analyzing real procedures used in actual criminal cases
-experimental research: Researchers create crimes (live staged or videotaped) that
unsuspecting people witness, and, then, the researchers question them about what they witnessed
and show them a lineup
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-People criticize experimental research on several grounds:
 Experiments usually use college students as witnesses.
 Witnesses in experiments don’t experience the stress & fear that real witnesses
experience. (Stress interferes w/ the formation of accurate memories.)
 Experiment witnesses know that there are no serious consequences for mistaken
identifications, whereas real-life witnesses are presumably more cautious.
Eyewitness Retrospective Self-Reports
-eyewitness retrospective self-reports: witnesses’ in-court recollections
-Courts rely heavily on eyewitness self-reports for 3 of the 5 Manson reliability factors:
 their ____________________________
 their ___________________
 their ___________________
Psychologists say that self-reports often change in response to even slight changes in context
(e.g., the social desirability of the responses).
Assessments of Lineups
The Lineup Composition
-fillers: people known to be innocent who participate in a lineup
-The fillers should resemble the suspect (i.e., same race, ethnicity, skin color; similar in age,
height, weight, hair color, & body build).
Most lineups fall short of these recommendations. Due to the limited availability of fillers, it’s
difficult for police to assemble a scientifically sound lineup.
-Courts rarely throw out lineup identifications. Courts trust jurors to detect mistaken IDs.
Pre-Lineup Instructions
-During lineups, witnesses feel pressured to make a selection by the mere fact that the police
went to the trouble of arranging a lineup. Witnesses assume that the police must have found the
perpetrator; otherwise, they wouldn’t have arranged a lineup.
Sometimes, witnesses make a relative judgment.
-relative judgment: witnesses select the person in the lineup who looks most like the culprit
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-might-or-might-not-be-present instruction: One of the ways to improve the reliability of
eyewitness identification of strangers is to tell witnesses that the suspect might or might not be
among the photos or members of a lineup. (This reduces the likelihood of the witness making a
relative judgment.)
Suggestive Behavior by the Lineup Administrator
-Lineup administrators’ knowledge or expectations influence the witness. Lineup administrators
unintentionally & unconsciously steer witnesses to select particular suspects.
Ex: frowning, nodding, and making comments that imply the witness’s choice is
“correct” or “incorrect”
Show-Ups
-Show-ups are inherently more suggestive – and significantly less reliable – than lineups.
-Courts rarely throw out show-up identifications.
Psychological Research and the Manson Reliability Variables
-Suggestion seriously infects all 3 of the self-reported Manson reliability factors:
the witness’s opportunity to view, the witness’s attention, and the witness’s certainty/confidence.
The Witness’s Opportunity to View the Culprit
-Researchers found a weak link between correct identification & the length of time the witness
viewed the culprit, especially when there was stress or anxiety during the viewing.
-Witnesses greatly overestimate the length of time they viewed the culprit.
Witnesses greatly underestimate how long their view was blocked.
-experimental research conclusion: Receiving positive feedback from the lineup administrator
after ID-ing someone in a culprit-free lineup significantly increased the percentage of witnesses
who said that they had a good or excellent view of the culprit and could easily make out the face.
The Witness’s Attention
-How much attention witnesses pay to the culprit’s face during the crime is perhaps more
important than the length of time the witness views the face.
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-People have a limited capacity to take in information, so concentrating on one aspect of an event
diminishes one’s ability to pay attention to other aspects of an event.
Ex: “weapons effect”
The Witness’s Certainty
-Witness confidence affects whether a prosecutor brings charges – and whether the prosecutor
negotiates a plea deal or goes to trial.
-Where there are no suggestive procedures (to interfere w/ self-reported confidence levels),
witness confidence is of some value.
Recommendations for Reforming Identification Procedures
Recommendations by Psychologists and Lawyers
-suggested reforms to ID procedures:
 a per-se rule excluding all evidence based on suggestive procedures
 looser standards for admitting expert testimony on human perception & memory and on
the shortcomings of eyewitness identification
 requiring corroboration of eyewitness identifications in some cases, such as cross-racial
identifications
 mandating certain police identification procedures recommended by psychologists, such
as the sequential lineup
Recommendations by Legislatures and Law Enforcement Agencies
-blind administrator: a person conducting a lineup who doesn’t know which person in the
lineup is the suspect
-sequential presentation: presenting members of a lineup one at a time and requiring witnesses
to answer “yes” or “no” as they’re presented; witnesses are unable to see all subjects at once &
do not know which is the last subject
-simultaneous presentation: a traditional lineup in which members are standing together at the
same time, giving witnesses the opportunity to treat the procedure like a multiple-choice test w/ a
“best” answer but maybe not a “right” answer
-Some legislatures & police depts. have adopted ID procedures based on psychology research.
For ex., Wisconsin endorsed:
 using non-suspect fillers chosen to minimize suggestiveness toward the suspect (i.e.,
select fillers who look like the suspect)
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using a double-blind procedure where the lineup administrator doesn’t know who the
suspect is (and, therefore, will not unintentionally influence the witness’s choice)
instructing eyewitnesses that the real perpetrator may or may not be present and that the
administrator doesn’t know which person is the suspect
presenting the suspect and fillers sequentially (one at a time)
assessing eyewitness confidence immediately after the identification
avoiding multiple identification procedures where the witness views the same suspect
more than once
State Court Opinions
-In response to criticism of the Manson reliability test, some state courts have provided more
protection than Manson.
-For ex., in 1986, the Utah Supreme Court required Utah courts to give jurors a “cautionary
instruction,” explaining the weaknesses of eyewitness ID evidence.
In 2009 (State v. Clopten), the Utah Supreme Court added a 2nd requirement: the use of expert
witnesses to explain (to the jury) the limits of human perception and memory and how that
affects eyewitness identification evidence.
-cautionary instruction: instruction in which judges explain the weaknesses of eyewitness
identification evidence to juries
Did He Have a “Right” to an Expert Witness?
State v. Clopten (Utah 2009)
Facts:
Opinion:
DNA PROFILE IDENTIFICATION
-DNA is some of the most powerful evidence imaginable; it establishes guilt w/ virtual certainty.
-One of the most important criminal law issues of our day is whether there is a post-conviction
constitutional right to access DNA evidence for the purpose of exonerating sentenced convicts.
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Does a State’s Refusal to Grant a Request for DNA Testing Deny the Prisoner’s Due Process
Right?
District Attorney’s Office for the Third Judicial District and others v. William G. Osborne
(2009)
Facts:
Opinion:
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