By Robert T. Thetford, Attorney at Law
Article reprinted with permission from the ICJE
"Appearance evidence" such as a subject's photograph generally is not protected by the Fourth Amendment because a suspect has no reasonable expectation of privacy in his or her appearance; however, any improper or suggestive procedure surrounding the showing of photographs to a witness will certainly violate the defendant's constitutional right of "due process.”
The general rule is that a photographic lineup or "photo spread" is shown to witnesses prior to an arrest or indictment. Following an arrest or indictment, a physical lineup is the proper procedure. A photo spread consists of a minimum of six photographs, all of the same size, type and nature. For example, all should be Polaroid or Kodak type photographs with no identification features present on any of the photographs. All of the photographs should either be in color or black and white, and the same general rules for conducting a physical lineup should be applied, with all six subjects being of the same race, approximately the same age, height, build and having the same facial hair.
One common way to display a photographic lineup is to mount the photographs on a poster board with the only identifying features being the photograph numbers (one through six.) Investigators should note in their reports any creases, marks or other defects present on the photographs prior to exhibiting the photo spread to the witness and should carefully preserve the photo spread as evidence following the viewing. As an any lineup, investigators must carefully refrain from making any comments which could later be interpreted as suggestive.
In U.S. v. Hines, 955 F.2d 1449 (CA 11, Ga., 1992), the Eleventh Circuit U.S. Court of Appeals ruled that the use of mug shots in a photo spread was improper because they “inflicted severe damage on defendants' credibility in an unfairly prejudicial way.” The court noted in Hines that in five of the six photos shown, the men were holding what appeared to be police identification boards, and that two of the men were wearing institutional orange uniforms. The photo spread was presented to the jury in a folder marked in capital letters and bold print, "'MUG SHOW-UP FOLDER.”
Later Alabama cases have held that mug shots are generally not admissible in a criminal trial because juries may infer from them that the defendant has a criminal history. This being said, however, the Alabama Supreme Court in Ex parte Long , 600 So.2d 982 (1992), provided three conditions which must be met before a photo spread consisting of mug shots could be properly introduced as evidence:
1. The Government must have a demonstrable need to introduce the photographs; and
2. The photographs themselves, if shown to the jury, must not imply that the defendant has a prior criminal record; and
3. The manner of introduction at trial must be such that it does not draw particular attention to the source or implications of the photographs.
Other cases have severely criticized the practice of investigators in merely taping over the identification boards or other identifying features of the mug shots prior to using them as a photo spread, as noted in U.S. v. Torres-Flores, 827 F.2d 1031 (CA 5, Tex., 1987).
Investigators are cautioned to avoid mug shots in photo lineups whenever possible. If a mug shot is the only photograph available, all identifying features must be removed. Perhaps the best way to do this is to make a copy of the photograph, cropping it so that all of the identifying features are removed, but retaining the original for trial if altering becomes an issue.
There are few recent cases dealing with the proper use of "Mug Books” and the identification of suspects from them. Perhaps the best guidance concerning the use of mug books for identification purposes is found in U.S. v. Carrillo, 20 F.3d 617 (CA 5, Tex., 1994), in which the Fifth U.S. Circuit Court of Appeals held that the viewing of a Mug Book and the identification of a subject photograph found in it were admissible where “the police cropped and enlarged the photos so that no identifying marks or measuring lines were visible.” The court stated, “the only factor that would lead a jury to conclude that the photos were taken from a mug shot is the fact that the defendant was pictured in the classic mug shot pose, a front and side view. We conclude that the government sufficiently disguised the photos, especially given the fact that the poses were split into two separate photographs that were physically separated (i.e., cut apart into two sheets of paper).”
Again, the accepted practice for the investigator would be to crop and enlarge the photographs in order to remove identifying marks and measuring lines. While this case allowed the use of frontal and side photographs as long as they were separated, other cases have disallowed the use of side shot photographs, so the safest approach would be to include only frontal photographs.
Of course, investigators should refrain from ever mentioning the word “mug shot” or “Mug Book” when referring to the photographs in the presence of the witness. Investigators should work closely with prosecutors when using Mug Books or mug shots as identification tools in order to avoid implying that the suspect has a criminal record or drawing attention to the photographs as mug shots. Finally, if a Mug Book is used for identification purposes, the book itself (as it exists at the time of the viewing) should be preserved through copying or other reproduction methods to insure that the same photographs are available for trial. If this is not done and the book is updated or changed periodically, the identification evidence will not be preserved and therefore the identification itself will not be admissible.
Following these suggestions should greatly enhanced the chances of successfully introducing photographic lineup evidence at trial and should be considered as a policy update or implementation for state and federal enforcement agencies.