How do photo identifications work?
With a photo identification, police officers typically ask victims and witnesses to come to the police station and try to identify a suspect by looking at photographs. The witnesses may look through large books of photos or smaller groupings of six photos commonly called “six packs.” The photos are almost always mugshots, meaning that witnesses are aware that the people they are looking at have criminal records. (For information on other aspects to identification procedure, including lineups and the right to an attorney, see Eyewitness Identification.)
The police use photo identifications when they lack probable cause to make an arrest. Because the process is nonintrusive, officers can display photos to eyewitnesses whether or not they have any information tying any of the subjects to a crime. Thus, photo identifications can be, in essence, a search for a suspect.
Suspects generally don't have a right to a lawyer's presence at a photo lineup. (United States v. Ash, 413 U.S. 300 (1973).) Photo identifications often take place before charges are filed, and even suspects have no right to be present.
The question naturally arises: If neither suspects nor attorneys are present, how can they challenge the fairness of photo identifications?
The police are supposed to keep records of which photographs they show to eyewitnesses, and the order of display. The defense can see the photos prior to trial through discovery. Thus, if a photo display is unfair—for example, the defendant was the only person in a six pack who was fully facing the camera or the only one whose picture was in color—the defense can ask the court to suppress the identification.
The photo identification process is often informal, and transcripts of conversations between police officers and eyewitnesses aren’t frequently made. To the extent that the police unfairly guide eyewitnesses to identify a suspect, the defense may be relegated to finding this out by asking the participants what was said and relying on them to willingly answer completely and accurately.