Picture Perfect in the Eyes of the Court

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.