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.