Frequently in a criminal trial, the prosecution will attempt to elicit identification testimony from a witness or victim of a crime who has made an out-of-court identification of the defendant (for example, in a line-up or photo array). Typically, the testimony culminates in the witness pointing to the defendant in court and identifying him or her as the perpetrator, as has been dramatized countless times in the movies and on television.
The defendant may challenge the admission of this testimony, claiming that the in-court identification was in fact the result of a suggestive and prior out-of-court identification orchestrated by police. The Fourteenth Amendment to the U.S. Constitution provides that no person shall lose his or her life, liberty or property without due process of law. This “Due Process Clause” protects a suspect from police identification procedures that are so impermissibly suggestive as to create a very substantial likelihood of irreparable misidentification. A suspect can challenge identification by raising the issue of impermissible suggestiveness. If the requisite showing is made, a hearing will be held, after which the judge will make a ruling regarding the admissibility of testimony concerning the identification. To determine which practices are so unfairly suggestive as to deprive a suspect of Due Process, a court looks to the totality of the circumstances surrounding the out-of-court identification.
What types of procedures have courts previously found to be impermissibly suggestive?
• In the Fourth Circuit Court of Appeals case of U.S. v. Saunders, a photo array shown to a liquor store clerk following a robbery was impermissibly suggestive when the defendant’s photo was set against a dark background and was taken without overhead lighting; in contrast, the other five “filler” photos were taken against light backgrounds with overhead lighting. The end result was that the defendant’s face appeared “significantly darker than the faces of the decoy suspects,” distinguishing him from the other men pictured and giving him “a menacing countenance that was lacking in the men in the other five photos.” These differences also suggested that the defendant’s photo was taken at a different time and place than the other photos, further making defendant stand out as a suspect.
• In the Seventh Circuit Court of Appeal case of U.S. v. Downs, a line-up was suggestive when the defendant was the only one of the five participants who had a moustache—this clearly differentiated him from the other four men.
• In one California case (Grant v. City of Long Beach), an array of six photos (a “six-pack”) was unacceptable when it included photos of a single Caucasian suspect along with photos of five Hispanic males; the suspect’s face appeared long and narrow while the other five men pictured had rounder, fuller faces; and the suspect’s skin tone was significantly lighter than four of the other five men.
• In a Texas case (Gonzalez v. State), a photo array was impermissible when the defendant’s photo was the only “mug shot” showing the location of a custodial facility and an identification number.
• In a Pennsylvania case (Commonwealth v. Jacrecki), a photo array was unduly suggestive when the defendant’s photo showed his head and entire torso, while the other photos showed just their subject’s head; in addition, the defendant’s photo had a different background from the others and was the only one prominently stamped with a date, making it stand out even more.
• In U.S. v. Crews, the U.S. Supreme Court held that a photo array which includes a picture of a suspect taken during an illegal arrest is invalid.
Even when an identification procedure is found by a court to be unnecessarily suggestive, the resulting identification may still be admissible, if the reliability of the witness who made it can be independently established. In the landmark case of Neil v. Biggers, the U.S. Supreme Court announced five factors that a court should consider in determining a witness’s reliability:
• The opportunity of the witness to view the defendant during the crime (How close was the suspect to the victim? Was there sufficient light to see?) ;
• The level of attention the witness was paying to the defendant;
• The accuracy of any descriptions of the defendant made by the witness prior to the identification procedure;
• The witness’ level of certainty in his or her identification (Is the suspect 100% certain the suspect committed the crime?); and
• The time between the crime and confrontation.
For example, in the Georgia case of Scott v. State, the victim and his 12-year-old son were robbed at gunpoint in a stairwell of the Omni Coliseum following an Atlanta Hawks game. Less than an hour later, the defendant was stopped by police and found to have a gun and the victim's wallet in his possession. He was taken to the police station, where the victim was already filing a report. The victim was shown the wallet, which he identified as his, and then shown the defendant, who was sitting alone in the back of a police car. A detective told the victim that the defendant “may or may not be” the man who mugged him; both the victim and his son identified him as the robber. The Georgia Supreme Court found that this procedure was inherently suggestive, but that the victim's identification was nonetheless reliable. The area where the mugging took place was well-lit, so the defendant was clearly visible during the crime. Although the victim only saw his assailant for 1 to 2 seconds, his attention was concentrated on his face. (In addition, his son saw the robber for about 30 seconds). This identification was made less than two hours after the robbery. Neither the victim nor his son showed any hesitancy or uncertainty when making their identifications. Finally, the victim's initial description of the robber (slender, 5'10"-6'0", in dark clothing), made just after the robbery, generally fit the defendant.
Compare with Blevins v. Commonwealth, a Virginia case. The victim was the subject of an attempted kidnapping in a parking garage. The defendant was detained as a suspect less than an hour later in a nearby park. Soon after, the victim was shown a single photo of defendant, and she identified him as her assailant. Although this procedure was suggestive, the Virginia Court of Appeals, relying on the Biggers factors, found that the victim’s identification was still reliable. She had ample opportunity to view her would-be kidnapper during the 25-minute attack. When he first approached, his “face was touching [hers]” and they “met eye to eye” just before he forced his way into her car. Although there was an initial struggle when the assailant first entered her car, he calmed down when the victim acquiesced to his demands, giving her a better view of him. The victim was parked next to a light in the garage, and her car had a “T-top” which allowed light in. Before even seeing the photo, the victim accurately described defendant as a short man, with short, “peppered gray” hair. Although her initial description of his clothing was inaccurate, she testified that she based her identification on defendant’s “very distinctive facial appearance,” not on what he wore in the photo. She made her identification only an hour or so after the crime. Finally, she stated that she had “[a]bsolutely no” doubt that defendant was her attacker, adding the photo “was all I needed to be shown.” The reliability of the witness’s identification was thus independently established.
In State v. Ramirez, a Washington case, a Yakima officer was shot twice during a routine traffic stop; fortunately, he was wearing a bulletproof vest and survived. The defendant was arrested for the shooting the next day, and soon after, the officer was shown a photo montage while still in the hospital. The defendant was the only man pictured in a dark shirt (which the officer described his assailant as wearing)—all the other men wore white T-shirts. The Washington Court of Appeals found that the dark shirt rendered the montage unduly suggestive. Nevertheless, the officer’s identification of defendant was still admissible. The officer had an opportunity to view his assailant as he walked up to the car and shined a flashlight on the assailant’s face during the traffic stop. He became more alert as he approached, because the defendant was acting unusually, looking away from the officer and keeping his hands out of view. As a police officer, he was trained and experienced in making this type of observation, and is initial description was accurate enough to lead to the defendant’s capture within 12 hours. The identification was made the morning after the crime, and the officer appeared certain of his choice. The officer’s reliability outweighed the suggestiveness of the photo array.
Officers should keep these principles in mind when conducting a line-up or photo array. While the circumstances surrounding the crime may save a witness’s identification, the better practice is, of course, to ensure that the identification procedure used is not unduly suggestive, so that there is no question as to the admissibility of the witness’s identification testimony.