FREE e-Newsletter
Important News - Hot Topics
Get them Now!

The Law Officer's Pocket Manual - Bloomberg BNA
This handy 4" x 6" spiral-bound manual offers examples showing how rules are...

Departments : Point of Law

Eyewitness Identification

Get an ID from witnesses without influencing the results.

December 01, 2003  |  by Devallis Rutledge - Also by this author

If the witness asks to have a particular person step forward, or assume some position, or repeat words used by the criminal, have each person do the same things, from one end to the other. If the witness does not ID and you later try again, do not have the suspect be the only repeat participant. This happened in Foster v. California and the Supreme Court ruled this technique too suggestive.

General Guidelines

For all three kinds of identification procedures, general precautions apply.
If two or more witnesses will be attempting identifications, keep them separate during the display so that neither hears and then simply "confirms" the other's selection.

Record the witness' ID comments verbatim. Instead of reporting that "The witness was able to identify the suspect," it's better to report, "She said, 'It's number four-I'm positive that's him,'" or whatever is said.

Do not ask the witness to quantify brain chemistry, by asking, "Are you 90 percent sure, or maybe 86 percent, or more like 63.4 percent?" People have no way of numerically measuring their strength of certainty. It's okay to say, "How sure are you?" And if they answer with numbers, write them down. But if they simply say, "I'm very sure," or "I'm pretty sure," or "Not real sure," just write that down, without making them put a number on it.

After a person has been indicted or arraigned, he has a right to have his attorney present as an observer at a lineup. (U.S. v. Wade.) If this right is violated, proof of the lineup ID is not admissible at trial. (Gilbert v. California.) The same rule applies to a one-on-one courtroom ID. (Moore v. Illinois.)

Suspects have no right to have counsel present at a field show-up or photo ID (U.S. v. Ash), nor is counsel constitutionally required at a lineup conducted before indictment, arraignment, or other initial court appearance. (Kirby v. Illinois.)

Even if a pretrial ID is ruled by a court to be inadmissible because the procedure was unduly suggestive, the witness can still make an ID in court unless the pretrial procedure was so suggestive as to cause "a very substantial likelihood of irreparable misidentification." (Simmons v. U.S.)

To establish the reliability of both the pretrial ID and the trial ID, courts examine five factors: (1) witness opportunity to observe the suspect during the crime or flight; (2) witness degree of attention; (3) accuracy of the description given by the witness before making the ID; (4) level of certainty in making an ID; and (5) time period between the crime and the ID. (Neil v. Biggers.) Since these are the factors the court will use, they should all be accurately detailed in your report.

Bottom line: Try not to "help" witnesses make an ID by saying or doing anything that would suggest the person you think they should identify.

Attorney Devallis Rutledge, a former police officer and prosecutor, defends officers and agencies at Manning & Marder, Kass, Ellrod, Ramirez.

«   Page 2 of 2   »

Be the first to comment on this story

POLICE Magazine does not tolerate comments that include profanity, personal attacks or antisocial behavior (such as "spamming" or "trolling"). This and other inappropriate content or material will be removed. We reserve the right to block any user who violates this, including removing all content posted by that user.

Other Recent Stories

Take a Breath
To prevent taking shallow breaths in stressful situations, make sure you practice and...
Data Tactics
To counter arguments of the media and activists, we need to do a better job capturing and...
5.11 Tactical Women's Defender-Flex Slim Pant
Are 5.11's new women's pants really suitable for the range and casual activities? POLICE...
Pre-Attack Indicators
Learn how to tell someone is about to assault you long before they make their first move.
Jefferson County (WI) Sheriff's Office
The citizens police academy at Jefferson County Sheriff's Office places participants in...

Get Your FREE Trial Issue and Win a Gift! Subscribe Today!
Yes! Please rush me my FREE TRIAL ISSUE of POLICE magazine and FREE Officer Survival Guide with tips and tactics to help me safely get out of 10 different situations.

Just fill in the form to the right and click the button to receive your FREE Trial Issue.

If POLICE does not satisfy you, just write "cancel" on the invoice and send it back. You'll pay nothing, and the FREE issue is yours to keep. If you enjoy POLICE, pay only $25 for a full one-year subscription (12 issues in all). Enjoy a savings of nearly 60% off the cover price!

Offer valid in US only. Outside U.S., click here.
Police Magazine