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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.

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