Pretrial Identification

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Background

A pre-trial identification may be crucial in establishing eyewitness testimony that a defendant committed a crime. Several types of pre-trial identification exist: showups, lineups, and photo arrays being the most common. While a key piece of evidence in a case, pre-trial identifications are unreliable pieces of evidence. Eyewitness identifications were used in 75% of the cases overturned by newly available DNA tests. Unfortunately, misidentifications will continue to happen and juries will continue to give them too much weight during deliberations because of the general public’s mistaken belief in their accuracy.

Numerous studies have shown just how unreliable pre-trial identifications can be. 20% of the time the witness selects someone other than the suspect. If the witness does not recognize the suspect or is not 100% certain, it is highly likely that they will guess because 90% of the public expect the suspect to be present, despite being told that he might not be.

Often, the witness only saw the suspect for a brief moment, and depending on the circumstances, additional factors may be present that further impact the reliability of the identification. Such factors include, but are not limited too:

lighting conditions; the duration of the event; violence; the age, sex and race of the perpetrator; the length of time between the event and the identification and the acquisition of post-event information that may distort the memory. [1]

Photo arrays also present a few unique reliability problems. For example, the witness may have trouble discerning the suspect's height and weight and the photograph might be old. [2]

Due to questions about the reliability of pre-trial identifications and possible coercion by the police, courts around the world have taken steps to ensure identifications are accurate and untainted.

Specific Country Examples

United States

A conviction based on a misidentification is a gross miscarriage of justice. [3] Therefore, the U.S. Supreme Court has tests to ensure that an identification is proper. Since pre-trial identifications usually happen before the start of formal proceedings, the defendant is not entitled 6th amendment protections, and therefore, does not have a right to counsel during the identification. [4] Defendants must instead raise a claim under the 5th and 14th amendments, because the likelihood of misidentification violates the defendant’s right to due process. [5] The test for a due process claim is, “whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive.” [6] The factors used to determine the likelihood of misidentification include:

the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description 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.[7]


The Biggers’ factors serve as a baseline for all pre-trial identification claims they are not exhaustive. Some states have openly questioned the usefulness of the factors and criticized the assumptions they are based on. [8] Utah, for instance, has established a more extensive set of factors:

(1) the opportunity of the witness to view the actor during the event; (2) the witness's degree of attention to the actor at the time of the event; (3) the witness's capacity to observe the event, including his or her physical and mental acuity; (4) whether the witness's identification was made spontaneously and remained consistent thereafter, or whether it was the product of suggestion; and (5) the nature of the event being observed and the likelihood that the witness would perceive, remember and relate it correctly. [9]

England

In 1976, the court in R v. Turnbull established a new set of a factors to help ensure the reliability of eyewitness identifications. The factors to determine the reliability of the identification that should be given to the jury, are:

(1) the visibility and lighting conditions at the time of the offence (2) the distance of the eyewitness from the perpetrator (3) the duration of observation of the crime by the eyewitness (4) whether the observation of the crime was impeded (5) whether the perpetrator was known to the eyewitness (6) the duration between the sighting of the offence and the reporting of the incident (7) the reasons the eyewitness recalls that the perpetrator was at the scene of the crime (8) the differences between the description of the perpetrator and the actual appearance of a suspect. [10]

The Turnbull rules have also been adopted in other common law systems, including Ireland, Canada, and Australia. [11]

Germany

Germany does not have a statutory basis for compelling suspects or witnesses to participate in a lineup. Courts, however, have determined that lineups are permissible and that individuals can be compelled to stand for a lineup. [12] Similarly, lineups are not governed by legal rules. Suspects subjected to lineups are not required to have an attorney appointed. Lawyers, however, do have a right to be present at the lineup. Photo arrays are permissible, but courts prefer that photo arrays only be used when lineups are not practicable. [13]

France

In France, suspects can be viewed by witnesses for identification purposes during a judicial investigation. The suspect does not have a right to counsel unless he is asked to response to a question during the identification procedure. [14]

The police do not have any particular requirements when carrying out an identification during a preliminary investigation. [15]


India

In India, a lineup is referred to as a test identification parade. A test identification parade has two primary objectives: to narrow down the possible subjects in an investigation, and to provide corroborating evidence for the witness’s later identification in court. [16]

A test identification parade is not substantive evidence. The substantive evidence is the identification the witness will make in court. While a test identification parade is not required before a witness can testify, an identification not supported by one is almost without value unless the witness knows the defendant personally.

Legally, an individual or a magistrate can conduct a test identification parade. In practice, however, a magistrate usually performs it. If the test identification parade is conducted by the police it will not be admissible in court under the provisions of section 162 of the Code of Criminal Procedure. [17]

China

China does not have laws governing identification procedures. [18]


References

  1. Connie Mayer, Due Process Challenges to Eyewitness Identification Based on Pretrial Photographic Arrays, Vol. 13 No. 3 Pace L. Rev. 815, 819 (1994)
  2. Connie Mayer, Due Process Challenges to Eyewitness Identification Based on Pretrial Photographic Arrays, Vol. 13 No. 3 Pace L. Rev. 815, 820 (1994)
  3. Stovall v. Denno, 388 U.S. 293, 297 (1967)
  4. see Kirby v. Illinois, 406 U.S. 682 (1972)
  5. Neil v. Biggers, 409 U.S. 188, 198 (1972)
  6. Neil v. Biggers, 409 U.S. 188, 199 (1972)
  7. Neil v. Biggers, 409 U.S. 188, 199-200 (1972)
  8. Sate v. Long, 721 P.2d 483, 491 (Utah 1986)
  9. State v. Ramirez, 817 P.2d 774, 781 (Utah 1991) (adopting the factors listed Long’s sample jury instructions)
  10. Michael Bromby et. al, A CommonKADS Representation for a Knowledge-based System to Evaluate Eyewitness Identification, 17 Int'l Rev. of L. Computers & Technology 99, 101 (2003)
  11. Michael Bromby et. al, A CommonKADS Representation for a Knowledge-based System to Evaluate Eyewitness Identification, 17 Int'l Rev. of L. Computers & Technology 99, 100 (2003)
  12. Craig M. Bradley, Criminal Procedure A Worldwide Study 224-225 (Carolina Academic Press 2d ed. 2007)
  13. Craig M. Bradley, Criminal Procedure A Worldwide Study 225 (Carolina Academic Press 2d ed. 2007)
  14. Craig M. Bradley, Criminal Procedure A Worldwide Study 214 (Carolina Academic Press 2d ed. 2007)
  15. Craig M. Bradley, Criminal Procedure A Worldwide Study 214 (Carolina Academic Press 2d ed. 2007)
  16. http://jurisonline.in/2009/09/test-identification-parade-relevance-in-investigation-process-case-analysis/
  17. http://lawyersclubindia.com/articles/Test-identification-Parade-724.asp
  18. Craig M. Bradley, Criminal Procedure A Worldwide Study 101 (Carolina Academic Press 2d ed. 2007)

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