Showups, Lineups, and Photo Arrays - Revision history

Ibjadmin: /* Recommended Police Guidelines for Lineup and Photo Arrays */

2010-12-10T09:50:10Z

Recommended Police Guidelines for Lineup and Photo Arrays

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	Following is a series of recommended guidelines for conducting lineups and photo arrays as written by the Port Washington, Wisconsin Police Department.<ref>Port Washington Police Department, General Order 6.3.4: Eyewitness Identification, May 06, 2009</ref>		Following is a series of recommended guidelines for conducting lineups and photo arrays as written by the Port Washington, Wisconsin Police Department.<ref>Port Washington Police Department, General Order 6.3.4: Eyewitness Identification, May 06, 2009</ref>
	#Choose non-suspect fillers that fit the witness' description and that minimize any suggestiveness that might point toward a suspect;		#Choose non-suspect fillers that fit the witness' description and that minimize any suggestiveness that might point toward a suspect;
	#Use blind' procedures, in which the administrator is not in a position to unintentionally influence the witness's selection;		#Use 'double blind' procedures, in which the administrator is not in a position to unintentionally influence the witness's selection;
	#Specifically instruct eyewitnesses that the real perpetrator may or may not be present and that the administrator does not know which person is the suspect;		#Specifically instruct eyewitnesses that the real perpetrator may or may not be present and that the administrator does not know which person is the suspect;
	#Present the suspects and fillers sequentially (one at a time) rather than simultaneously (all at once.) This encourages absolute judgments of each person presented, because eyewitnesses are unable to see the subjects all at once and are unable to know when they have seen the final subject;		#Present the suspects and fillers sequentially (one at a time) rather than simultaneously (all at once.) This encourages absolute judgments of each person presented, because eyewitnesses are unable to see the subjects all at once and are unable to know when they have seen the final subject;

Eeichler: /* Expert Testimony */

2010-07-27T12:06:51Z

Expert Testimony

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	==Expert Testimony==		==Expert Testimony==
	Courts appear to be split as to whether to allow expert testimony on the issue of eyewitness identification with some courts concluding that this is an issue the jury can understand without the assistance of expert opinion.		Courts appear to be split as to whether to allow expert testimony on the issue of eyewitness identification, with some courts concluding that this is an issue the jury can understand without the assistance of expert opinion.
	----		----
	See [[Evidence]]		See [[Evidence]]

Eeichler: /* Sample Jury Instructions */

2010-07-27T12:05:55Z

Sample Jury Instructions

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	In appraising the identification testimony of a witness, you should consider the following:		In appraising the identification testimony of a witness, you should consider the following:


	(1) Are you convinced that the witness had the capacity and an adequate opportunity to observe the offender?		(1) Are you convinced that the witness had the capacity and an adequate opportunity to observe the offender?
	Whether the witness had an adequate opportunity to observe the offender at the time of the offense will be affected by such matters as how long or short a time was available, how far or close the witness was, how good were lighting conditions, whether the witness had had occasion to see or know the person in the past...		Whether the witness had an adequate opportunity to observe the offender at the time of the offense will be affected by such matters as how long or short a time was available, how far or close the witness was, how good were lighting conditions, whether the witness had had occasion to see or know the person in the past...


	(2) Are you satisfied that the identification made by the witness subsequent to the offense was the product of his own recollection? You may take into account both the strength of the identification, and the circumstances under which the identification was made.		(2) Are you satisfied that the identification made by the witness subsequent to the offense was the product of his own recollection? You may take into account both the strength of the identification, and the circumstances under which the identification was made.

	If the identification by the witness may have been influenced by the circumstances under which the defendant was presented to him for identification, you should scrutinize the identification with great care. You may also consider the length of time that lapsed between the occurrence of the crime and the next opportunity for the witness to see defendant, as a factor bearing on the reliability of the identification....		If the identification by the witness may have been influenced by the circumstances under which the defendant was presented to him for identification, you should scrutinize the identification with great care. You may also consider the length of time that lapsed between the occurrence of the crime and the next opportunity for the witness to see defendant, as a factor bearing on the reliability of the identification....


	(3) You may take into account any occasions in which the witness failed to make an identification of defendant, or made an identification that was inconsistent with his identification at trial.		(3) You may take into account any occasions in which the witness failed to make an identification of defendant, or made an identification that was inconsistent with his identification at trial.


	(4) Finally, you must consider the credibility of each identification witness in the same way as any other witness, consider whether he is truthful, and consider whether he had the capacity and opportunity to make a reliable observation on the matter covered on his testimony.		(4) Finally, you must consider the credibility of each identification witness in the same way as any other witness, consider whether he is truthful, and consider whether he had the capacity and opportunity to make a reliable observation on the matter covered on his testimony.

Eeichler: /* Sample Jury Instructions */

2010-07-27T12:05:27Z

Sample Jury Instructions

← Older revision		Revision as of 14:05, 27 July 2010
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	In appraising the identification testimony of a witness, you should consider the following:		In appraising the identification testimony of a witness, you should consider the following:


	(1) Are you convinced that the witness had the capacity and an adequate opportunity to observe the offender?		(1) Are you convinced that the witness had the capacity and an adequate opportunity to observe the offender?
	Whether the witness had an adequate opportunity to observe the offender at the time of the offense will be affected by such matters as how long or short a time was available, how far or close the witness was, how good were lighting conditions, whether the witness had had occasion to see or know the person in the past...		Whether the witness had an adequate opportunity to observe the offender at the time of the offense will be affected by such matters as how long or short a time was available, how far or close the witness was, how good were lighting conditions, whether the witness had had occasion to see or know the person in the past...


	(2) Are you satisfied that the identification made by the witness subsequent to the offense was the product of his own recollection? You may take into account both the strength of the identification, and the circumstances under which the identification was made.		(2) Are you satisfied that the identification made by the witness subsequent to the offense was the product of his own recollection? You may take into account both the strength of the identification, and the circumstances under which the identification was made.

	If the identification by the witness may have been influenced by the circumstances under which the defendant was presented to him for identification, you should scrutinize the identification with great care. You may also consider the length of time that lapsed between the occurrence of the crime and the next opportunity for the witness to see defendant, as a factor bearing on the reliability of the identification....		If the identification by the witness may have been influenced by the circumstances under which the defendant was presented to him for identification, you should scrutinize the identification with great care. You may also consider the length of time that lapsed between the occurrence of the crime and the next opportunity for the witness to see defendant, as a factor bearing on the reliability of the identification....


	(3) You may take into account any occasions in which the witness failed to make an identification of defendant, or made an identification that was inconsistent with his identification at trial.		(3) You may take into account any occasions in which the witness failed to make an identification of defendant, or made an identification that was inconsistent with his identification at trial.


	(4) Finally, you must consider the credibility of each identification witness in the same way as any other witness, consider whether he is truthful, and consider whether he had the capacity and opportunity to make a reliable observation on the matter covered on his testimony.		(4) Finally, you must consider the credibility of each identification witness in the same way as any other witness, consider whether he is truthful, and consider whether he had the capacity and opportunity to make a reliable observation on the matter covered on his testimony.

Eeichler: /* Sample Jury Instructions */

2010-07-27T12:04:42Z

Sample Jury Instructions

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	If a criminal defense attorney is representing a client in a jury trial and identification evidence plays a significant role in the case, the defense attorney should try to get a jury instruction on the nature of eyewitness identification. Following is a sample jury instruction used in a U.S. Federal Court:		If a criminal defense attorney is representing a client in a jury trial and identification evidence plays a significant role in the case, the defense attorney should try to get a jury instruction on the nature of eyewitness identification. Following is a sample jury instruction used in a U.S. Federal Court:

	<blockquote>Identification testimony is an expression of belief or impression by the witness. ~~its~~ value depends on the opportunity the witness had to observe the offender at the time of the offense and to make a reliable identification later.		<blockquote>Identification testimony is an expression of belief or impression by the witness. Its value depends on the opportunity the witness had to observe the offender at the time of the offense and to make a reliable identification later.

	In appraising the identification testimony of a witness, you should consider the following:		In appraising the identification testimony of a witness, you should consider the following:

Eeichler: /* Composite Sketch */

2010-07-27T12:02:13Z

Composite Sketch

← Older revision		Revision as of 14:02, 27 July 2010
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	==Composite Sketch==		==Composite Sketch==

	Inaccurate information from outside an eyewitness's memory can also taint development of a composite. As with photo arrays, live lineups, and showups, composites can be compromised if the witness's description relies on information learned from external sources after the crime or if the person administering the procedure either unintentionally supplies the witness with information or unintentionally incorporates outside knowledge of the case into the production of the composite. For this reason, when a composite is used, double-blind concepts & principles in which both the witness and the person making the composite are unaware of external information about the case may be helpful. It may not be feasible to conduct a completely double-blind procedure for a variety of reasons, in which case witnesses should be told to rely on their independent recollection of the event - not information learned from other sources - and administrators must be mindful of any natural tendency to incorporate prior knowledge into the process.		Inaccurate information from outside an eyewitness' memory can also taint development of a composite. As with photo arrays, live lineups, and showups, composites can be compromised if the witness' description relies on information learned from external sources after the crime or if the person administering the procedure either unintentionally supplies the witness with information or unintentionally incorporates outside knowledge of the case into the production of the composite. For this reason, when a composite is used, double-blind concepts and principles in which both the witness and the person making the composite are unaware of external information about the case may be helpful. It may not be feasible to conduct a completely double-blind procedure for a variety of reasons, in which case witnesses should be told to rely on their independent recollection of the event - not information learned from other sources - and administrators must be mindful of any natural tendency to incorporate prior knowledge into the process.

	The case of Charles T. Dubbs exemplifies another problem inherent in composite sketches:		The case of Charles T. Dubbs exemplifies another problem inherent in composite sketches:

Eeichler: /* Recommended Police Guidelines for Lineup and Photo Arrays */

2010-07-27T11:55:59Z

Recommended Police Guidelines for Lineup and Photo Arrays

← Older revision		Revision as of 13:55, 27 July 2010
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	==Recommended Police Guidelines for Lineup and Photo Arrays==		==Recommended Police Guidelines for Lineup and Photo Arrays==
	Following is a series of recommended guidelines for conducting lineups and photo arrays as written by the Port Washington Police Department.<ref>Port Washington Police Department, General Order 6.3.4: Eyewitness Identification, May 06, 2009</ref>		Following is a series of recommended guidelines for conducting lineups and photo arrays as written by the Port Washington, Wisconsin Police Department.<ref>Port Washington Police Department, General Order 6.3.4: Eyewitness Identification, May 06, 2009</ref>
	#Choose non-suspect fillers that fit the witness's description and that minimize any suggestiveness that might point toward a suspect;		#Choose non-suspect fillers that fit the witness' description and that minimize any suggestiveness that might point toward a suspect;
	#Use �double blind' procedures, in which the administrator is not in a position to unintentionally influence the witness's selection;		#Use �double blind' procedures, in which the administrator is not in a position to unintentionally influence the witness's selection;
	#Specifically instruct eyewitnesses that the real perpetrator may or may not be present and that the administrator does not know which person is the suspect;		#Specifically instruct eyewitnesses that the real perpetrator may or may not be present and that the administrator does not know which person is the suspect;
	#Present the suspects and fillers sequentially (one at a time) rather than simultaneously (all at once.) This encourages absolute judgments of each person presented, because eyewitnesses are unable to see the subjects all at once and are unable to know when they have seen the ~~last~~ subject;		#Present the suspects and fillers sequentially (one at a time) rather than simultaneously (all at once.) This encourages absolute judgments of each person presented, because eyewitnesses are unable to see the subjects all at once and are unable to know when they have seen the final subject;
	#Assess eyewitness confidence immediately following an identification. Carefully document a witness's response before any feedback from law enforcement;		#Assess eyewitness confidence immediately following an identification. Carefully document a witness' response before any feedback from law enforcement;
	#Avoid multiple identification procedures in which ~~the same~~ witness views the same suspect more than once.		#Avoid multiple identification procedures in which a witness views the same suspect more than once.

	==Composite Sketch==		==Composite Sketch==

Eeichler: /* Showup */

2010-07-27T11:25:40Z

Showup

← Older revision		Revision as of 13:25, 27 July 2010
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	==Showup==		==Showup==
	Some courts have suppressed identification evidence based on the use of showups due to inherent suggestiveness of the practice. ~~However, showups~~ are the most suggestive of all eyewitness identifications because only one person is shown to the witness. Therefore, the use of showups should be secondary in preference to the use of photo arrays or lineups when possible.		In some cases, usually soon after the alleged commission of a crime, a witness or victim will be presented with one potential defendant. This is known as a showup. Some courts have suppressed identification evidence based on the use of showups due to the inherent suggestiveness of the practice. Showups are the most suggestive of all eyewitness identifications because only one person is shown to the witness. Therefore, the use of showups should be secondary in preference to the use of photo arrays or lineups when possible.

	If necessary, a showup should happen as soon as possible after the incident. The more time that elapses between the event and the identification procedure, the more suggestive it will be.		If necessary, a showup should happen as soon as possible after the incident. The more time that elapses between the event and the identification procedure, the more suggestive it will be.

Eeichler: /* Procedures for Challenging Identification Procedures */

2010-07-27T11:21:25Z

Procedures for Challenging Identification Procedures

← Older revision		Revision as of 13:21, 27 July 2010
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	==Procedures for Challenging Identification Procedures==		==Procedures for Challenging Identification Procedures==
	In order to challenge an identification procedure in a common law system, the lawyer should request a hearing to suppress the identification as unnecessarily suggestive("Wade Hearing"). ~~Defendant~~ may have to testify as such a hearing to establish the facts surrounding the original identification. In the United States these statements cannot ~~generally~~ be used at the later trial unless the defendant opens the door on direct or cross-examination.		In order to challenge an identification procedure in a common law system, the lawyer should request a hearing to suppress the identification as unnecessarily suggestive (known as a "Wade Hearing"). A defendant may have to testify at such a hearing to establish the facts surrounding the original identification. In the United States these statements generally cannot be used at the later trial unless the defendant opens the door to inclusion on direct or cross-examination.

	==Showup==		==Showup==

Eeichler at 11:17, 27 July 2010

2010-07-27T11:17:56Z

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	The criminal defense attorney should endeavor, whenever possible, to be physically present during any identification of his or her client. This is the only way to guarantee that the identification is fair and is not coercive. As a practical matter this is not always possible. Presence of a criminal defense attorney at an identification procedure poses certain ethical problems. For instance, if the defense attorney is compelled to become a witness in the trial he may then be forced to withdraw as counsel to the case because of this conflict of interest.		The criminal defense attorney should endeavor, whenever possible, to be physically present during any identification of his or her client. This is the only way to guarantee that the identification is fair and is not coercive. As a practical matter this is not always possible. Presence of a criminal defense attorney at an identification procedure poses certain ethical problems. For instance, if the defense attorney is compelled to become a witness in the trial he may then be forced to withdraw as counsel to the case because of this conflict of interest.

	As a general rule identification procedures should not be "unnececessarily suggestive".<ref> Stovall v. Denno, 388 U.S. 293 (1967)</ref>. In determining what is "fair" or "unfair" in identification procedures (the due process question), the courts consider all the circumstances leading up to the identification. Unfairness will be found only when, in the light of all the circumstances, the identification procedure was so suggestive as to give rise to a real and substantial likelihood of irreparable misidentification. <Neil v. Biggers, 409 U.S. 188 (1972)</ref>		As a general rule identification procedures should not be "unnececessarily suggestive".<ref> Stovall v. Denno, 388 U.S. 293 (1967)</ref>. In determining what is "fair" or "unfair" in identification procedures (the due process question), the courts consider all the circumstances leading up to the identification. Unfairness will be found only when, in the light of all the circumstances, the identification procedure was so suggestive as to give rise to a real and substantial likelihood of irreparable misidentification. <ref> Neil v. Biggers, 409 U.S. 188 (1972) </ref>

	==Procedures for Challenging Identification Procedures==		==Procedures for Challenging Identification Procedures==