Picture Perfect in the Eyes of the Court

If you're lucky enough to have an eye­witness to a crime, and your investigation leads to a possible perpetrator, getting a photo ID is often the next logical step. As with everything else you do, there's the wrong way and the court's way. If a photo ID is obtained the wrong way, tes­timony that the witness picked out the defendant may be inadmissible in court. And if the ID procedure is so "unneces­sarily suggestive" that it taints the wit­ness's ability to recall the suspect accu­rately, the witness might even be prevented from making an in-court ID at trial (Manson v. Brathwaite).

To avoid error, you need to understand the court's rationale for its rulings on the admissibility of ID evidence.

Here it is, in a nut­shell: All trials must be conducted with due pro­cess in order to arrive at a reliable verdict; to reach a reliable verdict. The court admits only reliable evidence. But if police methods suggest to a wit­ness that a particular sus­pect should be selected, and the witness then makes that selection, this is practically a "directed" ID, rather than the wit­ness's independent deci­sion. And that makes it unreliable. Furthermore, the Due Process clause prohibits evidence that was unreliably procured by the govern­ment. As the Supreme Court said in Manson, "Reliability is the linchpin in determining the admissibility of identi­fication testimony."

So when you decide to have a witness try to make a photo ID, you should be careful to avoid suggesting that any particular photo (or any photo at all) depicts the person you believe committed the crime. How do you do that? Follow a few simple guidelines before, during and after you present the photo spread to the witness.

Before the ID

• Take a detailed description of the suspect from the witness and record it before showing photos.
• Don't tell the witness that you have a suspect. ("We think we know who did it.") ./ Don't reveal incriminating evi­dence. ("We caught someone with your credit cards.")
• Don't allow witnesses to compare notes before they see the photo array. Each witness's independent recollection is imperative.
• Use the most recent photo of the suspect you have.
• Cover any identifying matter, such as booking boards, handwritten nota­tions, etc. Number or letter each photo for reference.
• Use a sufficient number of photos so that no single suspect is emphasized (six or more will usually suffice, although fewer photos will sometimes do).
• Use all color or al] black-and ­white photos.
• Select photos of persons who gen­erally fit the description previously given by the witness.
• Try to use photos of the same approximate size, clarity and pose.
• Do not say or imply to the witness that you believe the suspect is among those pictured.
• Make photocopies of your array.

During the ID

• Keep witnesses separated and obtain their independent reactions.
• Use a simple, neutral admonition:
• "I'm going to show you some pictures.
• Please look at all of them carefully, and tell me if you recognize anyone." ,/ If the witness asks you if the sus­pect is in the group, say, "Maybe you can tell me."
• It is not necessary (and not a good idea) to discourage the witness from making an ID with admonition overkill. Don't say, "It's just as important to eliminate the inno­cent," or "The fact that we're show­ing you pictures doesn't mean the suspect is present," or "You're under no obligation to make an ID." Many witnesses later report that officers talked them out of an ID with such excessive warnings.
• If two or more perpetrators were involved, compose a separate photo display for each suspect and present them one at a time.
• If the witness makes an ID, have him or her circle the picture on the photocopy, write down any comments he or she has ("I'm sure it's No.3"), and sign and date the photocopy.
• Do not ask the witness to quantify his or her degree of cer­tainty with adjectives ("fairly certain") or percentages (''I'm 79 percent sure"). Simply record the witness's honest reaction and words.
• Do not confirm or dispute the witness's ID. Doing so could influ­ence the reliability of a later in-court ID.
• The suspect has no right to have his attorney accompany you when you present a photo display to the witness (U.S. 1'. Ash).

After the ID

• Preserve the display and marked "photocopies" for court.
• Attach a photocopy to your crime/arrest reports for the prosecu­tor's review.
• If no ID was made, your sus­pect's photo should not be the only one repeated in any future display to the same witness. [PAGEBREAK]

Interviewing and Reporting

If the court does find that your photo display was impermissibly suggestive, it will then examine five fac­tors to determine if the ID was still reliable enough to be admitted at trial.

These factors were enumerated by the Supreme Court in Neill'. Big­gers and are sometimes called the "Biggers factors."

When interviewing an eyewitness, be sure to cover the following factors and accurately document the witness's responses in your report:

What was the witness's opportu­nity to view the perpetrator at the time of the crime?

This factor focuses on the length of time the perpetrator was in the wit­ness's sight, distance between them, lighting conditions and obstacles to clear view (such as masks, caps, eye­glasses, etc.).

The longer, closer and better the witness's view, the more likely it is that the witness can make a reliable ID, even if a suggestive photo display was used.

In U.S. vs. Hardage, for example, the victim saw the rapist face-to-face in a well-lit area for several minutes.

How much attention was the wit­ness paying to the perpetrator at the time of the crime?

Reliability is strengthened in situations where the witness deliberately concentrated on the perpetrators features to be able to identify him later, or where the witness is a previous victim or a trained officer who knows the important of providing a good description.  U.S. v. Lewin involved an undercover officer, and in U.S. v. Patterson, the witnesses were a member of a flight crew trained to notice hijacker features.

How accurate was the witness's initial description of the perpetrator as compared with the defendant's actual physical description?

One reason you take a detailed description as soon as possible after the crime, of course, is to help locate and apprehend the perpetra­tor. Another good reason is to show that the witness was able to describe the suspect reasonably accurately before seeing his photo in an ID dis­play (or before viewing a field show up or a lineup).

Record the obvious features of race, sex, approximate age, height, weight, hair color/style, eye color, facial hair, glasses and clothing. And always ask about scars, tattoos, deformities, jewelry, and other stand-out features.

In U.S. v. Causey, for instance, the witness accurately and unequivocally described the suspect's race, sex, age, hair length and facial hair.

How certain was the witness when making the photo ID?

A witness who quickly selects a photo and insists, "That's your guy!" is considered more reliable than one who hesitates and equivocates. Com­pare McFadden v. Cabana, in which the witness's ID was prompt, positive and emphatic, with Thigpen v. Cory, where reliability was weakened when the hesitant witness finally said he was "pretty sure" the person selected was the robber.

What was the length of time between the crime (or other confrontation with the subject) and the photo ID?

Obviously. the sooner the ID is made after the event, the fresher and more reliable the witness's recollection will be. Reliability is generally strong within a few hours (U.S. v. Concepcion) and may be sufficient up to a month or more (Kordenhrocf v. Scroggy). But it would become problematic after longer delays (Marsdell v. Moore, where reliability was weak after two years).

Being aware of the five Biggers factors and covering them fully in your interview and reports can help save an ID that comes under defense attack as too suggestive. And follow­ing appropriate guidelines before. dur­ing and after a photo ID display can reduce the brunt of such attacks and help ensure that the proper person is charged with the crime.

Davallis Rutledge is a supervising deputy dis­trict attorney in Orange County, Calif., chair­man of the P.O.S.T. Commission and a former police officer. The author of six law enforcement books, including "Criminal Interroga­tion," he also speaks to police and prosecu­tors nationally on a variety or subjects.