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AN EYEWITNESS IDENTIFICATION

CHALLENGING

Jurors place great importance on eyewitness testimony, particularly if the witness has no obvious axe to grind. In reality, however, eyewitness testimony is inherently unreliable, and mistaken identification results in more wrongful convictions than any other cause.

Let’s explore two commonly used identification procedures — the photo array and the line-up — to learn how these procedures work and how you can challenge these procedures in your defense.

With a “photo array,” the witness is asked to identify the perpetrator from a set of photographs. A photo array should include at least six photographs, but sometimes will include up to nine. The photos may be displayed like a line-up or may be displayed using a cardboard cutout which overlays the photographs and partially hides the differences among them. Typically, the photos in the array show only the faces of the men or women pictured and include no other physical characteristics, such as the individual’s height, weight, body physical characteristics, such as the individual’s height, weight, body shape, or manner of dress.

THE PHOTO ARRAY

In a “line-up,” the police may have several individuals sit or stand next to each other, while the witness tries to make an identification, usually from the other side of a one-way mirror. The line-up allows the witness to see real people and compare these real people with his memory of the perpetrator’s appearance. The eyewitness can see the height, weight, body language, and dress of each individual; he can see the way they walk and assess their demeanor, e.g., whether thethey are meek and staring at the floor, or aggressive and glaring at the mirror.

THE LINE-UP

Photo arrays and line-ups must comply with the Due Process Clause of the Constitution. The Supreme Court has determined that an identification procedure violates due process when it is “unnecessarily suggestive” and creates a “substantial risk of misidentification.”

CONSTITUTIONAL LIMITS ON IDENTIFICATION PROCEDURES

The photo of the suspect is outdated or does not represent how the suspect normally appears – e.g., the suspect usually wears shoulder-length hair and two or three days of facial stubble, but the photo in the array shows a clean-cut individual with no facial hair.

TheThe photo is so unlike the other photos that the witness cannot help but conclude that the detective is trying to tell him something. The decoy photographs often are mug shots. If the suspect has never been arrested or if no recent mug shot exists, the photo in the array may come from any number of sources, e.g., a school photo or a vacation photo.

ThThe same photograph or another photograph of the suspect was included in more than one photo array. The observant witness will consciously note the repetition, while the less observant witness may subconsciously be guided by it.

Depending on the circumstances, numerous factors might make a photo array unnecessarily suggestive and create a substantial risk of misidentification. For example:

GROUNDS TO CHALLENGE A PHOTO ARRAY IDENTIFICATION

The decoys in the line-up do not meet even the basic description of the suspect. (Often, the decoy group consists of whoever happens to be in lock-up at the time.)

The line-up occurs months after the alleged crime.

The lighting conditions are different from those at the crime scene.

The witness feels pressured to choose someone, given all the trouble the detective obviously went to in arranging the line-up.

ThThe witness is unnerved at being in the same room as the suspect and rushes through the process to get it over with as quickly as possible.

The witness has seen the suspect previously in a photo array.

A number of factors may undermine the reliability of a line-up identification to such a degree as to violate the suspect’s due process rights. For example:

GROUNDS TO CHALLENGE A LINE-UP IDENTIFICATION

Do not underestimate the persuasive power of an eyewitness identification. Talk to an experienced criminal defense attorney. Depending on your situation, your attorney may be able to have the identification suppressed (thrown out). If the judge allows the identification to stand, your attorney can aggressively cross-examine the detective and ththe witness at trial, to make plain for the jury how the process was suggestive and the identification is unreliable.

TALK TO AN EXPERIENCED CRIMINAL DEFENSE ATTORNEY