Criminal Procedure for the Criminal Justice Professional 11th Edition

1
Criminal Procedure for the Criminal Justice
Professional 11th Edition

• John N. Ferdico
• Henry F. Fradella
• Christopher Totten

Pretrial Visual Identification Procedures
Chapter 14
Prepared by Tony Wolusky
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Identification Procedures

• There are different procedures for presenting a
  victim or witness with suspects of crime.
• Confrontationany presentation of a suspect
• Showuppresentation of a single suspect
• Photographic Showuppresentation of a single
  photograph
• Lineuppresentation at one time of several
  persons, which may or may not include a suspect
• Photo Array (Photographic Lineup)presentation at
  one time of several photographs, including that
  of a suspect

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Eyewitness Identification

• Is it possible to conduct a fair lineup when the
  suspect is unusually tall or short or has very
  distinctive features or deformities?
• What are some of the factors that affect
  perception in the normal human adult who is
  free from any physical perceptual impairments?
  How might these factors affecting perception
  interfere with the accuracy of an eyewitness
  identification?

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Perception

• Perception is a highly selective, unconscious
  process.
• Depends on the acuity of the physical senses and
  a number of psychological factors.
• The sensory data we perceive is processed in
  light of experience, learning, preferences,
  biases, and expectations.
• Impacted by factors like sensory overload and
  incomplete sensory acquisition.

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Memory

• Memory is an unconscious process that concerns
  the acquisition, retention, and recall of past
  experience.
• All three phases of the process are affected by a
  number of physical and psychological factors.

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Estimator Variables Impacting Perception and
Memory

• Event factors and witness factors can taint the
  accuracy of memories, including
• Time
• Lighting conditions
• Changes in visual adaptation to light and dark
• Duration of the event
• Speed and distance involved
• The presence or absence of violence, stress,
  fear, physical limitations on sensory perception
• Expectations
• Age
• Gender

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Systemic Variables Impacting Perception and Memory

• Systemic variables are those factors that are
  under the control of the criminal justice system.
  
• These variables primarily concern the ways in
  which pretrial confrontations between suspects
  and victims or witnesses occur, including the
  conduct of law enforcement officers.

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Counsel at Critical Stages

• The Sixth Amendment guarantees defendants the
  right to the effective assistance of counsel at
  "critical stages" in all criminal prosecutions.

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The WadeGilbert Rule

• Post-indictment, pretrial lineup is a "critical
  stage" of a criminal prosecution that triggers
  the right to counsel. This rule was based on
• The inherent unreliability of eyewitness
  identifications, and
• The possibility of improper suggestions being
  made to witnesses during the confrontation
  procedure
• Applies to live showups and lineups at or after
  initiation of adversarial criminal proceedings.

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Waiver of the WadeGilbert Right to Counsel

• Waivers of the right to the presence of counsel
  at pretrial identification procedures must be
  knowing, intelligent, and voluntary, as
  determined by the totality of the circumstances.

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The Stovall v. Denno Rule

• Due process forbids any pretrial identification
  procedure that is unnecessarily suggestive and
  conducive to irreparable mistaken identification.
  
• All lineups and showups must be conducted in a
  fair and impartial manner.
• Suggestivity is evaluated by courts under the
  totality of the circumstances surrounding the
  pretrial identification.

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Reliability Trumps Stovall

• Factors to be considered in evaluating the
  reliability of an identification are
• The witnesss opportunity to view the criminal at
  the time of the crime
• The witnesss degree of attention
• The accuracy of the witnesss prior description
  of the criminal
• The level of certainty demonstrated by the
  witness at the confrontation
• The length of time between the crime and the
  confrontation and
• The corrupting effect of the suggestive
  identification.

13
Identification in Emergency Situations

• Emergency situations (like impending death of a
  witness) sometimes require that police conduct a
  confrontation in a manner that would otherwise be
  considered to be too suggestive.
• Assuming reliability, courts will admit such
  identifications, provided that exigent
  circumstances exist.

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Law Enforcement Guidelines

• There are guidelines for conducting lineup/photo
  arrays.
• They should contain only one suspect and foils
  similar in appearance to the suspect (including
  all color or BW photos).
• Double-blind administration
• Thorough witness instruction
• A minimum of six people should appear.
• Sequential viewing of photographs or lineup
  participants one after another is preferable to
  simultaneous viewing.
• Suspects should pick their location in the
  lineup.
• Foils and suspects, if asked, must all perform
  the same action (saying words or making
  gestures).

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Additional Considerations

• Additional considerations include
• Requesting witnesses to indicate their level of
  confidence in any identification
• Proper documentation of entire procedure and
  witness remarks, including video recording
• Not providing witnesses with any feedback on
  their identification
• Discouraging multiple lineups or photo arrays
  involving the same suspect and witnesses
• Placing lineup participants in different
  positions for multiple case witnesses and
• Using different foils with each suspect when
  shown to the same witness.

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Pre-Trial Motions to Suppress Identification
Evidence

• If the motion is granted, the court must exclude
  at trial
• Any evidence of the pretrial identification
  presented as a part of the prosecutor's
  case-in-chief, and
• Any identification made by a witness in court who
  participated in the pretrial identification.

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Independent Source Doctrine

• If a pretrial identification is ruled to be
  inadmissible, that does not necessarily mean that
  an eyewitness is barred from making an in-court
  identification.
• An in-court identification has an independent
  source when the identifying witness, by drawing
  on personal memory of the crime and observations
  of the defendant during the crime, has such a
  clear and definite image of the defendant that
  the witness can make an identification unaffected
  by the illegal confrontation.