Unit 5: Written Examination Preparation

Police Operations: Eye Witness and Line-Up Identifications

Frequently, a law enforcement officer has a clear violation of the law but finds that he/she has a problem linking the person he/she believes to be the perpetrator to the offense.

There are four methods by which an officer can link an individual to a particular event:

1. By catching the suspect “red-handed” in the commission of the offense.

2. By a confession from the suspect as to his/her participation.

3. By conclusive physical and scientific evidence such as fingerprints or fibers which link the suspect to the offense.

4. By identification of the suspect through eye witnesses to the offense.

Of all the methods of linking a suspect to an offense, the identification by an eyewitness is the most vulnerable to questions of reliability and therefore requires the most precautions.

Because there is concern with the reliability of eye witness identification, certain safeguards have been required by the U. S. Supreme Court and several state courts prior to its admittance. Thus, a police officer should be knowledgeable in the area of identification procedures in order to conduct a proper investigation.

There are generally two methods for a proper identification procedure. One is a live line-up. The second method is a photo array, where the witness views a series of photographs including a photo of the suspect.

Regardless of whether the identification is done live or with a photograph, the officer must have obtained a likeness of the suspect in a constitutionally permissible manner. To detain a suspect and obtain a photograph of him/her, the officer must have either probable cause or the consent of the suspect State vs. White, Dunaway vs. New York.

It is extremely important, therefore, for the officer to document the facts and circumstances which led him/her to believe that it was more probable than not that a crime had been committed, and that the suspect committed the crime, or that under the “totality of the circumstances” the suspect gave valid consent to accompany the officer for this purpose.

The officer may also employ a photograph of the suspect which was taken in an arrest, provided the arrest resulted in a conviction, because photographs and fingerprints of a suspect which do not end in a conviction must be destroyed in most jurisdictions.

The officer may have other alternatives to obtain a photograph, such as the use of a high school yearbook photo or taking a candid photo of a suspect surreptitiously while in a public place. Under these circumstances, the suspect is not detained, nor does he/she have an “expectation of privacy. “ Hence, there are no grounds to suppress the use of such a photograph.

A line-up, like fingerprints, is considered to be non-testimonial evidence. As such, a person can be compelled to participate in a line-up and cannot rely upon the Fifth Amendment protection against self-incrimination Us. vs. Wade, Gilbert vs. California. Should an arrestee refuse to participate in these procedures, the court can order him to do so or to show cause why he should not be held in contempt. Likewise, the suspect may be made to wear certain clothing or to say certain words that may be related to the crime that was committed and therefore assist in the investigation.

If you conduct a line-up prior to the suspect being indicted or otherwise formally charged, the suspect has no constitutional right to have an attorney present at a live line-up. An identification procedure after arrest but before arraignment can be conducted without the suspect having an attorney. Once the suspect has been arraigned or indicted, at any live line-up the suspect has the right to counsel. The court has not defined what the role of an attorney would be at a line-up. While under no obligation to do so, the officer should take any suggestions into account which a defense attorney makes if present. By doing so, you eliminate any objections the attorney could have to the process.

As a general rule, a police officer should not consider using a one-person line-up or photo spread. The reason for this is that courts have found that in most circumstances the use of a single photograph is unduly suggestive. However, some courts have held that when there are exigent circumstances present, the police may use a one-person line-up or photo spread. An example of exigent circumstances would be when a witness is about to undergo life-threatening surgery.

In a case where a witness had been shot and was conscious but about to undergo surgery, and an officer brought one man to be identified, the U.S. Supreme Court held that identification was permissible because of these exigent circumstances.

If a “live” line-up is used, you should make sure that you use all people similar in physical appearance and clothing. Don’t use one person five foot six inches and others all over six feet tall, for example. If possible, you should always videotape or photograph the line-up and carefully document the facts concerning it, because you will have to prove later on in court that it was conducted fairly.

Under certain emergency circumstances, you can take a single suspect back to the scene of a crime which just occurred, for “eyeballing” by a witness. In most cases, the courts frown on this practice, however, again, it is permitted under exigent circumstances. This could include an identification which happens within no more than a couple of hours after the criminal event. The courts believe that a brief detention of a suspect caught a short time after the crime would do less harm to an innocent person’s rights than holding him until a complete line-up could be assembled, and also that there is greater reliability in a quick identification.

If you use a photographic line-up, be sure to document it carefully and keep all the pictures that you use. All the photos should be similar. Always use an array, not just one photo. Don’t use one black and white and all the rest color pictures, and don’t use one “mug shot” with numbers on it, and the rest yearbook photos. Don’t use one person with a moustache and the rest without.

Whenever you use any kind of a line-up, don’t say anything to a witness which would suggest a particular suspect, or even indicate a belief that the suspect is one of the persons included in the line- up. The defendant’s lawyer will argue that the police may have even unwittingly given the witness a clue as to who they believe committed the crime. For instance, if the officer tells the witness, “We’ve got the man”, or, “He’s in this set of photos,” the defense counsel will argue that the witness was being subtly programmed to pick someone out. You can avoid this claim by telling the witness that the photos mayor may not include a photograph of the person involved in their incident and that they should examine each photograph and not make a judgment until all have been reviewed. It is important for you to make a record of what instructions you gave the witness and make this a part of your report, along with a statement from the witness. If the photos are lined up with the defendant in the middle, the defense counsel will argue that a human naturally tends to look at the center, hence the placement there is suggestive. lf the photos are in a mug book on a page in columns with the defendant’s the top right-hand corner, defense counsel will suggest that in newspapers, the top right of a page is the most

expensive advertising because of the human being’s tendency to look there first. You can blunt such an attack by not giving the photos a specific order. For example, if they are shuffied and then placed in front of the witness, it would be difficult to infer an intent on the part of the officer because the placement was truly random.

In Neil vs. Biggers, the U. S. Supreme Court set forth five factors which are to be considered in determining if an eye witness identification is reliable. These factors should be covered in any statement taken from an eye witness who does not know the suspect, and when the suspect is not immediately captured at the crime scene. The five factors are the opportunity of the witness to view the suspect, the degree of attention paid by the witness, the accuracy of the witness’s description of the suspect, the level of certainty in the identification, and the length of time between the event and the identification.

It should be noted, that in the case of a witness who is a police officer by profession, courts give special weight to his/her ability to observe.