Download Criminal Procedure as the Balance Between Due Process and

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
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There are different procedures for presenting a
victim or witness with suspects of crime.
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Confrontation—any presentation of a suspect
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Showup—presentation of a single suspect
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Photographic Showup—presentation of a single
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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
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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
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Perception is a highly selective, unconscious
process.
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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.
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All three phases of the process are affected by a
number of physical and psychological factors.
Estimator Variables Impacting
Perception and Memory
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Event factors and witness factors can taint the
accuracy of memories, including:
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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:
1.
2.
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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.
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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:
1.
2.
3.
4.
5.
6.
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.
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Assuming reliability, courts will admit such
identifications, provided that exigent circumstances
exist.
Law Enforcement Guidelines
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There are guidelines for conducting
lineup/photo arrays.
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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:
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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
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If the motion is granted, the court must
exclude at trial:
1.
2.
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.
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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.