Identification Procedures Line ups and Show ups
The Lineup is a technique that is used in criminal investigations and is an act where the police shows an individual who has witnessed a crime, nevertheless the person is a victim or not, a line of people and require that the witness recognizes the perpetrator among them or not.
Why lineup and not only showing the suspect to the witness? Science (cognitive psychology) and practice have proved that mental processes like attention and memory are quite relative and uncertain phenomena. Imagine that the witness saw a woman with blond short hair and green skirt quickly going out from the front door of the house where the crime was committed. If a female individual with short blond hair and green skirt is shown to the witness in the police department, the witness immediately will decide that this is the offender, but if several women with short blond hair and green skirts are shown to the witness, the chance of more circumstantial identification to be made is much greater.
Does the lineup of the suspect among other people violate his civil rights under the Fifth Amendment to the United States Constitution which declares that the individual should not incriminate himself? The answer is given by the Supreme Court of the United States in the case Schmerber v. California (1966). It held that the rule of not self-incriminating does not apply to emergences in lineups and it applies only to accused people not to testify against themselves during investigation or in court. ( Schmerber v. California, n. p. ) At the moment when the offenders are taken under police custody they are granted their constitutional Right to Counsel under the Sixth Amendment to the U. S. Constitution. All procedures, including lineups are performed in the offender’s attorney’s presence if he/she wants so. (United States v. Wade, 1967, n. p.)
A very important requirement for a pre-lineup is to be careful selecting individuals who are fillers for the lineup. It is essential not to pick people whose characteristics are opposite of the perpetrator in the lineup. The reason is that if fillers don’t have the same characteristics and features of the criminal then the criminal is more likely to stick out in the lineup. This could lead to selective persuasion when the witnesses had to pick out the person they saw committing the crime. When police get ready for a lineup process they will pick people who have similar features of the suspect to help eliminate persuasive decisions when witnesses need to identify an individual. The police need to consider when preparing a lineup for a witness is if a weapon was involved in the crime. When a weapon is involved in a crime this can decrease the witness’s memory of the perpetrator because people tend to focus more on the weapon than the criminal at the time the incident is occurring.
It is possible that the witness feel obliged to pick up somebody from a lineup and they may decide that they fail if they cannot choose anyone. That is why the eyewitnesses must be carefully instructed so that they do not expect the suspect to be always in the lineup and that they are always expected to choose. In an experiment the eyewitnesses were given biased and unbiased instruction. The witnesses in the condition with biased instruction were told that the offender was in the lineup and they received a paper with questions where there was no option about the offender to answer ‘absent. Those in the other condition with the unbiased instructions were told that the offender can be in the lineup but also he/she cannot be and their paper for their answers contained the option to answer that the perpetrator was absent. The result was that the eyewitnesses with the biased instructions gave more erroneous answers than the group of witnesses that received unbiased instructions. (Gronlund 63)
There are two types of line ups: simultaneous and sequential (show ups). They differ in the way how the people are demonstrated to the witness. The difference is that by the simultaneous line up the witness is able to see all the people or photos together at one and the same time while by the sequential show ups the witness sees the people or the photos one-at-a-time.
Scientists as Gary Wells, Ph.D., (Iowa State University), notify that at the simultaneous lineups, the witnesses are able to compare the people who are lined up or to compare the photographs arranged to each other applying the so called ‘relative judgment’ which means to compare them to each other and not to compare them to their memories of the offender. On the contrary, at the sequential lineups or show ups, the witnesses have to decide about every member in the show up or photograph before seeing the next and to compare them only to their memories of the perpetrator and that is called ‘absolute judgment’ (Schuster, n. p.)
There was and it continues a great dispute about which type of line ups are more effective and that dispute brought about different practices to be developed and applied in different states.
According to Cicchini an Easton, many states, in their endeavors to protect the defendants, put under a ban the show ups until extraordinary circumstances hinder the application of simultaneous lineups of people or photos. A possibility to allow the show ups may be found in cases when the police have no probable cause that they need to detain the suspect for a long time and do not have the time to organize a simultaneous line up of people or photographs. (Cicchini, Easton, p. 382)
Radha Natarjan discusses the memory and behavior of the witnesses in cross-racial lineups in her work Racialized Memory and Reliability: Due Process Applied to Cross-Racial Eyewitness Identification saying that “people are far better at recognizing members of their own race than they are at recognizing members of another race and that this own-race bias causes mistaken identifications.” (Natarjan n. p.) Other studies conclude that the Black suspects that are innocent but are misidentified present 56% more in the cases where the witness is white than the cases when the witness is black. (Ibid)
Aiming with the heavy and responsible task to ensure conformity with the Due Process Clause in cases that comprise cross-racial identifications, she develops a new test for admissibility that takes into consideration the racialized nature of memory.
In 2002 Dory Lynn Yob wrote her comments on the identification procedures giving her prescription for what has to be done in order to avoid wrong convictions. She wrote that “studies have shown that eyewitness identification evidence is one of the least reliable forms of evidence.” (Yob 214) and she told the true story of a young student one day in 1984 a man broke into her apartment, “held a knife to her throat, and raped her.” Shortly after the incident “she went to the police station and identified the man who she believed was her assailant, through the use of a photo lineup. She later picked the same man out of a live lineup and identified him as her attacker at his criminal trial in 1985.4 She stated that she was "absolutely, positively, without-a-doubt certain he was the man who raped [her] when [she] got on that witness stand and testified against him.” (Ibid 213) She was mistaken. Nine years later the innocence of the man was proved by a DNA test. The irony was that while testifying that she was sure that that man was her attacker, she was presented with a picture of another man and she swore that she had never seen him but later it turned out so that it was proven that just he was her real attacker.
Wrongful convictions, similar to the one above, are not an exception. On the contrary, the criminal justice system is overfilled with similar stories. It was the reason for Barry Scheck and Peter Neufeld to establish The Innocence Project in 1992 at the New York’s Benjamin Cardozo School of Law which purpose was the assistance of people who were wrongfully convicted. The Project started on January 19, 2002, when law students under supervision assisted in cases that ended with a hundred exonerations. The main cause for sixty exonerations, based on DNS analysis, of the first eighty-two cases was a mistake made by the witness in the identification procedures. (Ibid 214)
Regardless the statistics from exonerations, based on DNA analysis, eyewitnesses continue to keep their respectful place as vital actors in the criminal justice system. Eyewitness evidence is very often a tool in “identifying, charging, and ultimately convicting suspected criminals.” (qtd. Ibid 215), so it is very important the witnesses to be as reliable and precise as much as it is possible. The American Psychology-Law Society (APLS) published its estimations which showed that 77,000 suspects per year in the United States “become defendants based on eyewitness identification evidence.” (Wells et. al. 609)
According to the scientists, the unreliable nature of the evidence represented by the eyewitness identification can be fractionally explained by the complicated process that passes off the human mind.
Experiments have revealed the fact that the eyewitnesses were insufficiently precise when the actual perpetrator was present in the lineup, but they did not have any difficulties to select someone in the cases when the actual perpetrator was not present in the lineup. Research performed in the field of eyewitness identification had concentrated on the explanation of this non-conformity. Researchers found out that to be able to comprehend the reason of the problem one has to understand that the lineup identification is conducted by a mental process named relative judgment. The explanation of the Relative judgment theory is that when presented with a group of people all at once, familiar as a simultaneous lineup, the eyewitnesses are inclined to identify the person who most looks like the perpetrator in regard to the other people in the lineup. Initially the relative judgment seems to be an acceptable manner for an eyewitness to perform the identification. The authentic perpetrator should be the one who, in regards to the others, corresponds to the eyewitness’ memory of the crime. The problem here is the fact that the eyewitnesses usually select the person who most looks like the offender nevertheless the actual offender is in the lineup or not. An eyewitness announcing his/her decision “while relying upon relative judgment would say something like, “I know it can’t be numbers 1, 2, 4, 5, or 6, so it must be number 3.” (Ibid 615) This manner of decision-making is extremely disturbing especially when suspecting that only crime committed by the individual in position 3 may be that he/she is looking more like the real offender than the other participants of the lineup.
The absolute judgment appears to be the more promising method since the eyewitness compares the offered individual in the lineup only with his/her memory of the perpetrator and he/she makes the decision before they see the next offered individual. “The eyewitness using this process is likely to say something like “the face just popped out at me” (Ibid 615) So the eyewitness in the show up process does not need to compare the people in the lineup with one another but has to compare each one only with his/her memory of the offender.
The memory of the human being does not function as a camera that takes picture of every piece of the image and it can be recalled later but it reorganizes and reconstructs it according to his/her previous experience. The human memory tries unconsciously to fill the gaps from the missing pieces with details that happened later or just they are products of their imagination. As Fredrick E. Chemay writes in his work Unreliable Eyewitness Evidence: The Expert Psychologist and the Defense in Criminal Cases in 1985 that there is an imperative need for “expert testimony because the process of perception, memory and recall are subject to contamination, which affect the reliability of eyewitness identifications” (Chemay, qtd. in Yob 218)
The further recall of a face by the witness depends on the particular features of that face. Some faces are easier to be recalled than others and that is due to race, attractiveness, some unique details, the situation the person is shown, etc. The name of this phenomenon is called “unconscious transference” and it often outcomes in mistaken eyewitness’s identification that is very difficult to be noticed. (Ibid)
A variety of experiments have been performed in order to be demonstrated how the relative judgment functions in cases that false identifications happen. These experiments helped the scientist to determine procedures that could be controlled in order the quantity of false identifications to be on decrease. The recommendations concern a. instructions, given to the eyewitness if the offender is present among the people in the lineup or not; b. the effect of arranging the similarities between the participators in the lineup; c. the behavior of the police officers during the procedure; d. models of witness’s replies that take part in the both identification procedures; e. the exactitude in the witness identification when the sequential presentation is carried out.
Not giving an instruction to the eyewitness that the offender may not be in the lineup resulted in that 78% of the examined witnesses endeavor to recognize the offender and on the opposite when the instructions are given only 33% of the tried to identify the perpetrator. (Ibid 220) It is considered that the structure of the lineup is perfect when the fillers (innocent people who participate only for the procedure to be carried out) do not contrast the appearance of the suspect. For instance if the witness has said that he/she had seen a black man running away from the crime scene, the lineup administrators must not place five white persons and only the suspect to be black. But if the fillers have an appearance that is too similar to the suspect’s outfit that will impede the ability of the witnesses to identify the real offender. (Ibid 222)
Researches showed that a big number of decision-makers highly rely on the eyewitness’s confidence but the last, as shown by studies, is placed many times far away from the identification exactness. The relationship between them is fragile because of the malleability of the confidence which means that it can be influenced by number of factors that can spring up after the identification procedure has been performed. For instance, if the lineup administrator gives information to the witness that another eyewitness has identified the same suspect. This fact will strongly influence our witness’s testimony during the trial. (Ibid 224)
In order to avoid the contamination of the identification, the scientists recommend a “double-blind procedure” (Ibid 225), which means that the administrators who leads the procedure does not know who the suspect is. Thus any feedback information to the witness is impossible.
As it was mentioned above, disputes which method (the sequential or simultaneous lineup) is more preferable and what are the cons and pros about any of them. The adoption of guidelines that consolidate researchers’ findings in regard to the eyewitness identification procedures is long recommended by them. Unfortunately the United States Supreme Court abdicates from its obligations to provide a legal standard set of rules that will be obligatory for all law enforcement investigators when proceeding with eyewitness identifications. This problem is well exposed in the case PEOPLE of the State of New York v. Carlo FRANCO and Edward Sanchez, 2008, tried by the Supreme Court, Bronx County, New York and decided: March 31, 2008. The decision of the court states that the “Defendant’s convictions of murder and robbery were affirmed because, inter alia, there was no merit to defendant’s contention that his accomplice’s identification testimony should have been suppressed, as the identification was merely confirmatory. Any error in the prosecutor’s questioning of a detective as to photo arrays was harmless.”(People v. Franco n. p.)
In his article Suspect Choices: Lineup Procedures and the Abdication of Judicial and Prosecutorial Responsibility, Jake Sussman writes: “Legislators enact laws, law enforcement personnel execute laws, and, within limits, judges interpret both the laws and their execution.” (Sussman, n. p.) Further he adds the following: “As every law student learns in a professional responsibility or legal ethics course, all members of the legal profession share a responsibility for improving the legal system.” (Ibid) The article scrutinizes these responsibilities of the institutions by threshing out the case of the New York Supreme Court People v. Franco in which the factors of the criminal justice system did not fulfill their obligations to reform it in a way that the defendants will be able to avoid erroneous convictions by improving the eyewitness procedures through implementing more trustworthy identification procedures. The prosecution wanted to perform a lineup procedure during the pretrial initial stage of the case placing Franco in a simultaneous line up. Believing that the sequential one is more reliable, Franco asked exactly this model to be implemented. Nevertheless they knew that the sequential lineup is more reliable, the prosecution refused. The court joined the prosecution’s decision and refused Franco’s preferences. As a result one more wrong conviction took place until the truth came out years later. (Ibid)
Michael Cicchini and Joseph Easten scrutinized the show up procedure and made the conclusion that they were highly unreliable. In their article Reforming the Law on Show-Up Identifications they suggest that the court should decide when a show up procedure is admissible in court or not. In Part IV of their article they discuss how will look like the framework that the court has to use in order to decide which procedure is admissible and to be taken into consideration during the trial. They wrote that the most identification procedures presented to court were heavily malleable and therefore they suggested “no due process protection against highly unreliable, yet persuasive, show up evidence” (Cicchini, Easten p. 384)
It is significant to be mentioned that some states have admitted the existence of this problem and they took steps to offer larger protection under the statues of their state constitutions.
A show up represents an identification procedure where the officer introduces a single person (suspect) to an eyewitness and questions the last if this person is the offender. Usually this procedure is carried out around the crime scene and shortly after the crime is committed. Very often when the suspected person is presented to the eyewitness he/she is in police custody, maybe hand-cuffed or sits locked in the police car. It must be never forgotten that the show ups are very suitable for the process of law enforcement since they lead to a quick and easy solution of the conducted investigation. Unfortunately, the solution comes at a very high price – increased possibility of misidentification based on two reasons: the first one is that the risk to be misidentified falls on one person without the opportunity to be shared between the participants in a line up procedure; second – the manner the show ups are conducted makes them extremely suggestive. They are suggestive because the suspected individual is already in custody and he/she appears in front of the eyewitness accompanied by a police officer. Usually when the common people see someone in police custody they think that this is the perpetrator who is already caught by the police. The question for identification, very often sounds to the eyewitnesses as an invitation for confirmation. In this aspect, the lineups and the photo arrays, compared to the show ups, are much less suggestive because there is no way for the witness to know which exactly individual the police suspects as a perpetrator. There are also other factors that make the show up procedure very suggestive but they are not so crucial. There is one very interesting consequence of the show up procedure. After the false identified person is arrested and sent to trial, the police ill stop and not continue to look for the real offender, while at the simultaneous line up procedure the decision that this is the offender does not come so easy, there are some uncertainty that makes the police go further with the investigation.
Considering the belief in the American jurisprudence held for a long time, that “it is far worse to convict an innocent man than to let a guilty man go free” (In re Winship 1970), it is very easy to assume that the show up procedure is not admissible in the court at a trial. In reality there is no any protection against evidences derived from the show up procedure. Unfortunately, a small number of states offer any protection in this direction to their citizens, trying to implement some kind of reform. Two approaches to the reform are known: the evolutionary one where the rule’s frame allows more precise evaluation of the evidence that are admissible in court and the revolutionary one that bans the admission of show ups evidence in court. (Cicchini, p. 391)
The majority rule that governs the show up evidence admissibility is derived from the decisions held by the United States Supreme Court in 1970s. Even then the Court was aware of the fact that the eyewitness identifications were extremely unreliable. The Court developed an approach based on the factors that intended to admit solely reliable identifications evidence.
In the case United States v. Biggers the Court made a decision that a show up identification would not violate due process if “under the totality of circumstances the identification was reliable even though the confrontation procedure was suggestive.” (U. S. v. Biggers, n. p.) Five factors were listed by the Court that had to be considered in evaluating the reliability of the procedure:
“the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation” (Ibid 199 – 200)
In Nail v. Beggers case the defendant was convicted of rape on evidence, provided by the victim who swore that without a doubt this is the perpetrator because she had enough time to observe him indoors and outdoors where a full moon was shining. The victim performed her identification in the police station house basing her testimony on his appearance and voice. She had given his description to the police officer and he confirmed the fact. The victim did not make any previous identification but only this show up one. The police officers confirmed that they conducted only a show up identification because it was difficult for them to find individuals who responded to the victim’s preliminary description. The Supreme Court in Tennessee affirmed the conviction and its held was confirmed by an equally divided court (390 U. S. 404) The defendant filed a habeas corpus motion in District Court. After the petitioner’s statement that the affirmation of this Court’s held represented an actual decision under the statue of 28 U. S. C. 2244I and in this way barred any further review of the show up identification procedure in a habeas corpus federal proceeding, the District Court, mentioning that the lineup is much more reliable than the show up identification procedure held that the discussion was so suggestive as to impede due process.
The primary cause of obtaining wrongful convictions in the United States is errors in the eyewitness identification procedures. Studies demonstrated many reasons why the eyewitness evidence often is unreliable. A big part of the factors that have influence over this evidences’ unreliability can be controlled by the criminal justice system. The situating of social science research into the practice of law enforcement is the key of solving the problem. The adoption of guidelines in a local ground, i. e. moving ahead state-by-state, will be problematic because most police departments are under local governance, so there will appear a large number of guidelines predominantly plagued with local problems. The most efficient and successful way out is the United States Supreme Court to adopt mandatory standards resemblant to those declared in Miranda v. Arizona.
Mandatory federal guidelines adopted by the United States Supreme Court designed according the recommendations of the social science researchers, enforced by education and training will help the attorneys and the police law enforcement officers to identify and provoke biases lineups which will make the eyewitness identification evidence more reliable.
Works cited
Cicchini, Michael & Easton, Joseph, Reforming the Law on Show-Up Identifications, The Journal of Criminal Law and Criminology, 2010, Vol. 100, No 2, Web March 6, 2016
Chemay, Frederick, Unreliable Eyewitness Evidence: The Expert Psychologist and the Defense in Criminal Cases, 45 LA. L. REV. 721, (1985) Web March 6, 2016
Check, Barry & Neufield, Peter, The Innocence Project, Web March 6, 2016
Gronlund, Scott, Goodsell, Charles & Andersen, Shannon, Lineup Procedures in Eyewitness Identification, 03_Nadel_Chapter 03.indd 83, 4/10/2012, Web March 6, 2016
In re Winship 1970, Web March 6, 2016
Natarjan, Radha, Racionalized Memory and Reliability: Due Process Applied to Cross-racial Eyewitness Identifications, NY School of Law, 2003, Web March 6, 2016
Miranda v. Arizona, 384 U. S. 436 (1966) Web March 6, 2016
Nail v. Biggers, 409 U. S. 188 (1972) Web March 6, 2016
People v. Franco, Supreme Court, Bronx County, New York.,(2008) Web March 6, 2016
Sussman, Jake, Suspect Choices: Lineup Procedures and the Abdication of Judicial and Prosecutorial responsibilities for Improving the Criminal Justice Sysytem,2001/2002, 27 N.Y.U. Rev. L. & Soc. Change 507 Web March 6, 2016
Schuster, Beth, Police Lineups: Making Eyewitness Identification More Reliable, NIJ Journal Issue, October 2007, No. 258, Web March 6, 2016 Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) Web March 6, 2016
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 [1967] Web March 6, 2016.
United States v. Biggers, 409 U.S. 188, 199 (1972), Web March 6, 2016
Yob, Dori Lynn. Mistaken Identifications Cause Wrongful Convictions: New Jersey's Lineup Guidelines Restore Hope, but are they Enough? Santa Clara Law Review 43 (winter)2002: 213–47. Web March 6, 2016
