It’s possible that the police will require a suspect to participate in both a showup and a lineup. They might, for instance, conduct the initial showup, then arrange for a lineup after the filing of charges. At least theoretically, the lineup can substantiate the showup identification and provide a basis to determine whether additional witnesses can also identify the suspect as the perpetrator.
Showups often take place soon after a crime, meaning that memory is less of a problem. But on the other hand, witnesses may still be under great stress when the police return soon after a crime with a suspect in tow. And nothing, short of telling the witness who committed the crime, could be more suggestive than presenting a single, in-custody person for identification. Further, regardless of what police officers say, an unsure witness might feel pressure to point the finger at the person on display.
In a 2017 report, Cal State Los Angeles detailed the results of testing regarding the reliability of showup identifications. In what was reported as a first-of-its-kind experiment, witnesses were led to believe they were part of an actual police investigation and that their identification would result in the arrest of the suspect.
The study had several findings, including the following:
In essence, the study concluded that showups are tremendously unreliable.
Despite the general unreliability, showup identifications can be admitted into evidence in criminal trials. They can be admitted even though the U.S. Supreme Court long ago said, "The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned." (Stovall v. Denno, 388 U.S. 293 (1967).)
Lots of factors are relevant in determining whether a showup was too suggestive, including:
On the other hand, courts have held that the mere fact that a suspect is handcuffed during the showup doesn't mean that the procedure was improper.
Consult an experienced lawyer if you have been or might be the subject of an eyewitness identification procedure. A knowledgeable attorney can explain the relevant law, protect your rights, and help determine whether you have a viable challenge to any ID.
]]>Even identifications that sound quite convincing can be mistaken. The human memory doesn’t act like a machine, accurately recording, storing, and retrieving images on demand. Eyewitnesses, like all of us, construct and interpret what they as they see it. And the construction and interpretation process occurs well past the event itself. As one expert puts it, “Some memories are elaborations created by witnesses over time based on their own rationalizations for what must have happened and suggestions from others.” (Geiselman, Eyewitness Expert Testimony, pp. 74-75, Eagle Publishers, 1995.)
Some of the factors associated with mistaken identifications are matters of common sense and everyday experience. For example, all of us recognize the difficulty of making an accurate identification based on a “quick glance” as opposed to a “long look.” Similarly, you don’t have to be a cognitive scientist to know that lighting, distance, and the witness’s physical condition (for example, fatigued) can also compromise an identification. But here are some of the less obvious factors that have led eyewitnesses to make mistakes:
Stress. While many people tend to believe that “stress sharpens the senses,” research consistently shows that people who are under stress when they observe an event are more likely to misidentify the culprit.
Presence of a weapon. Eyewitnesses confronted by a weapon are apt to focus on the weapon rather than the person holding it.
Confidence level. Eyewitnesses who express great confidence in their identifications are no more accurate than those who admit to uncertainty. Confident eyewitnesses sometimes have higher error rates.
Cross-racial identification. Eyewitnesses are less accurate when asked to identify someone of a different race. This factor affects members of all racial groups.
Pressure to choose. Eyewitnesses are more likely to make mistakes when they feel pressure to make an identification, even if they are told that they don’t have to make a choice.
Influence after the fact. Eyewitnesses are more likely to make mistakes when they rehash events with other observers. In these situations, witnesses may alter their memories so that they can be in agreement with others.
Transference. Eyewitnesses may make a mistaken identification because they saw the person they identify on a different occasion.
Multiple perpetrators. Identification accuracy decreases as the number of people involved in an event increases.
Absence of an “employment boost.” Eyewitnesses who regularly interact with the public (store cashiers, bank tellers) are no better at making identifications than other people.
Many cognitive psychologists not only do research experiments, but also testify as expert witnesses at trial. Based on the factors surrounding the commission of a crime, they can testify to how those factors might have affected eyewitness’s ability to make an accurate identification.
Defendants who can’t afford to hire a cognitive psychologist as an expert may ask a judge to appoint an expert at government expense. However, few court systems have enough money to allow judges to appoint eyewitness identification experts in every case in which their testimony is relevant. A less expensive option is for a judge to give a jury instruction that summarizes factors that might affect eyewitness accuracy.
When they testify at trial, eyewitness identification experts don't usually opine as to whether the identifications in that case are accurate. Qualified experts can “educate the jury” by talking generally about factors that studies have shown tend to lead to inaccurate identifications. But experts have no way of assessing whether a particular eyewitness is accurate.
Example: Sal Mander, a Caucasian male, is on trial for robbing Delores, an African American female. After Delores identifies Sal as her attacker, Mander’s eyewitness identification expert testifies about factors that existed at the time of the robbery that might cast doubt on Delores’s ability to observe and recall accurately. However, the expert probably cannot testify, “In my opinion, there’s less than a 50% chance that Delores’s identification is accurate.” Eyewitness identification experts can talk about factors that have been associated with mistaken identifications in experiments, but they themselves admit that they cannot authoritatively determine the accuracy of a particular identification.
The testimony of eyewitness identification experts can aid jurors in understanding the psychology of mistaken identifications, but jurors ultimately have to try to decipher the accuracy of an identification on their own. Given what we know about the vagaries of eyewitness ID, this can be a difficult task.
]]>Police officers and often a prosecutor attend lineups. A defense attorney may be present as well, because a suspect who has been formally charged with a crime has a right to be represented by a lawyer at a lineup. (Kirby v. Illinois, 406 U.S. 682 (1972).) In large cities, public defender offices may have an attorney available to attend a lineup 24/7. The defense lawyer may also bring an investigator, a paralegal, a law clerk, or another observer to act as a witness in a later court hearing in case the lineup procedures are unfair to the defendant. To avoid having a defense lawyer present, an officer may try to convince a suspect to participate in a lineup voluntarily before the filing of charges.
The police can typically force someone who has been arrested to participate in a lineup. Judges don’t consider this a violation of the Fifth Amendment privilege against self-incrimination because, in a lineup, suspects don’t provide “testimony.” (United States v. Wade, 388 U.S. 218 (1967).)
As a condition of granting bail or OR release, a judge may require a suspect to participate in a lineup. However, being released from jail may reduce a suspect’s chance of having to participate in a lineup because of the logistics of arranging it.
Unless they have a court order, the police cannot compel suspects who have not been arrested to participate in a lineup. The police may ask such suspects for voluntary participation, arguing that “this is our chance to clear you.” But even those who are confident of their innocence should think carefully—and talk to a lawyer—before agreeing to participate in a lineup voluntarily. After all, witnesses make mistakes. (See The Psychology of Eyewitness Identification.)
Laws in many states give suspects the right to demand a lineup. But suspects should think carefully—and, again, talk to an attorney—before doing so. The advantage of participating in a lineup is that eyewitnesses’ failure to make a positive identification may cause the police to focus their investigation elsewhere. The disadvantage of mistaken identification is the flip side. (The defendant might also accidentally provide fodder for the prosecution in the course of the events surrounding the lineup—for example, by making a comment that turns out to be incriminating.)
One-way mirrors or bright lights typically make it impossible for suspects to see witnesses. Even if contact is possible, suspects definitely shouldn’t try to talk to or otherwise interact with witnesses. Even a plaintive “Tell them I’m innocent” may lead to additional scrutiny from the witness and officers. The police may even construe a suspect’s attempt to talk to a witness as intimidation and cause the suspect to be charged with a separate crime!
The police can generally dictate what participants wear and say during a lineup. Dressing the lineup participants as the culprit was dressed, and having them speak words that the culprit used, can increase the likelihood that an eyewitness’s identification (or failure to identify) is accurate. Of course, for the lineup to be fair, conditions must be the same for all participants.
Example: Ann Ekdote is arrested for burglarizing a home. Wilma, the next-door neighbor, tells the police that the burglar was a woman who wore large sunglasses, carried a big shopping bag, and yelled “It’s all mine!” while running out of the house. The police arrest Ann and ask Wilma to view her in a lineup. The police can dress Ann in large sunglasses and have her carry a big shopping bag if the items match Wilma’s description, as long as all of the lineup participants are displayed to Wilma in the same way. They can also require each participant to yell, “It’s all mine!” Because the other participants will do as the police request, Ann is likely to draw more attention to herself by refusing to repeat the words (or by whispering them). Moreover, the prosecution can use Ann’s refusal as further evidence of her guilt at trial.
Always enforce your right to counsel when facing a lineup request—or any other entreaty—from police. You should consult a knowledgeable lawyer before making any critical decisions in a criminal case. Your attorney can advise you of the nuances of the law, including how they apply to the facts of your case.
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