Criminal Procedure

1
Criminal Procedure

• 7th Edition
• Joel Samaha
• Thomson-Wadsworth Publishing

2
Identification Procedures

• Chapter 9

3
Establishing the Facts

• Proving a crime was committed is a lot
• easier than proving who committed it.
• Despite technological advances, eyewitness
• identification remains the most widely used
• way to identify and prove the guilt of
• strangers (perpetrators that victims dont
• know).

4
Mistaken Eyewitness Testimony

• The risks of mistaken identification are high,
• even in ideal settings.
• Most common identification procedures dont take
  place in ideal settings.
• It is estimated that about half of all wrongful
  convictions resulted from mistaken
  identifications by eyewitnesses.

5
Memory and Mistaken Identity of Strangers

• Memory problems lead to victim
• misidentification of stranger criminals.
• Psychologists usually separate memory into
• three phases
• Acquisition of memory
• Retention of memory
• Retrieval of memory

6
Acquisition of Memory

• Acquisition of memory refers to the
• information the brain takes in at the time of
• the crime.
• The brain doesnt record every little detail.
• Perceptions trump reality.
• We all pay selective attention to whats going
  around us.

7
The Accuracy of Observation

• The accuracy of witnesses observations
• depends on
• Length of time to observe
• Distractions during the observations
• Focus of the observations
• Stress during the observations
• Race of the witness and the stranger

8
Retention of Memory

• Retention of memory refers to the
• information the brain stores between the
• time of the crime and the identification
• procedure.
• Memory fades most during the first few hours
  after an event.
• As witnesses memory fades, their confidence in
  their memory rises.
• Judges and juries attach a lot of weight to
  confident witnesses.

9
Retrieval of Memory

• The information retrieved from memory at
• the time of the identification procedure
• consists of two types.
• Recallwitnesses are given hints and asked to
  report what they saw.
• Recognitionwitness are shown people or objects
  and asked if any were involved in the crime.

10
Retrieval Errors

• There are two types of retrieval errors
• Errors of omissionfailure to recall a key detail
• Errors of commissionpicking an innocent person
  from among those presented.

11
The Power of Suggestion

• Most misidentifications result from both
• natural memory imperfections and
• suggestion.
• Suggestion is most powerful during the retention
  and the retrieval phases.
• Loftuss memory bin research has provided much
  of what we know about the power of suggestion on
  witnesses memories.
• Police identification procedures increase the
  power of suggestion.

12
Identification Procedures

• Law enforcement uses three major
• procedures to help witnesses identify
• suspects who are strangers to them
• Lineups
• Show-ups
• Mug shot photo identifications

13
Lineups

• Lineups are the least often used and the
• least unreliable.
• Their reliability depends on their makeup and the
  procedures used.
• The power of suggestion is one of the biggest
  threats to proper lineup procedures.
• Its difficult to shake witnesses confidence
  once they make identifications, even if theyre
  wrong.

14
Recommendations for Lineup Makeup

• The International Association of Chiefs of
• Police (IACP) recommends that lineups
• include
• Five or six participants
• Similar race, ethnicity, and skin color
• Similar age, height, weight, hair color, and body
  build
• Similar clothing
• Reality often falls short of this.

15
Recommendations for Reducing Suggestion

• Recommendations to reduce the influence of
• suggestions include
• Provide might-or-might-not-be-present
  instruction.
• Use a blind administrator.
• If the witness identifies the suspect,
  immediately ask the witness how sure he or she is
  of the identification.
• Use sequential, not simultaneous, presentation.

16
Show-Ups

• Show-ups are less reliable than lineups but
• used more frequently. The three common
• situations in which courts are most likely to
• admit show-up evidence are
• Accidental encounters between witnesses and
  suspects
• Emergencies
• Suspects on the loose

17
Mug Shots

• Mug shot (photo) identification is the least
• reliable, yet most widely used, method of
• identification.
• The two-dimensional nature of photographs
  enhances the inaccuracy of identifications made
  from them.

18
The Constitution and Identification Procedures

• Until 1967, the courts, including the
• Supreme Court, adopted a hands-off
• approach to admitting evidence of lineups,
• show-ups, and photo identification.
• It was up to juries to assess their reliability,
  not courts.
• Stovall v. Denno (1967) established the due
  process basis for challenging identifications on
  constitutional grounds.

19
Reliability is the Linchpin

• For identification evidence to be dismissed
• on due process grounds, defendants have to
• prove two elements by a preponderance
• of the evidence
• The procedure used to identify was unnecessarily
  and impermissibly suggestive.
• The totality of circumstances proves that the
  procedure created a very substantial likelihood
  of misidentification.

20
Very Substantial Likelihood of Misidentification

• Five factors determine witnesses reliability
• Their opportunity to view defendants at the time
  of the crime
• Their degree of attention at the time of the
  crime
• Their accuracy of description of suspects prior
  to the identification
• Their level of certainty when identifying
  suspects at the time of the identification
  procedure
• The length of time between the crime and the
  identification

21
DNA Profile Identification

• DNA can potentially identify individuals or
• absolutely exclude them as suspects.
• The most widely used test, called DNA
  fingerprinting, compares crime scene samples of
  DNA to suspects samples.
• Reliability issues arise not from technology but
  from DNA testing procedures.

22
Legal Standards for Admitting DNA Evidence

• There are three legal standards for
• admitting DNA profiles as evidence
• Frye testadmissible if technique has gained
  general scientific acceptance.
• Frye plusadmissible if technique has gained
  general scientific acceptance and the particular
  testing used followed accepted scientific
  techniques.
• Federal Rules of Evidenceadmissible if the
  relevance of the evidence outweighs any tendency
  to hurt unfairly the defendants case.

23
Correct Identification from DNA

• Correct identification based on DNA depends
• on answers to three questions
• Is a reported match between the sample at the
  scene of the crime and the sample from the
  suspect a true match?
• Is the suspect the source of the trace of DNA
  left at the scene of the crime?
• Is the suspect the perpetrator of the crime?

24
Problems with use of DNA

• Problems with use of DNA evidence in court
• include
• Mistakes do happen.
• The match might be coincidental.
• Prosecutors, experts, and jurors exaggerate the
  weight of DNA evidence.