Chapter 9: Lineups and Other Means of Pretrial Identification

Retrieval of Memory

The information retrieved from memory at the time of the identification procedure consists of two types. Recall—witnesses are given hints and asked to report what they saw. Recognition—witness are shown people or objects and asked if any were involved in the crime.

Mistaken Eyewitness Testimony

The risks of mistaken identification are high, even in ideal settings. Most common identification procedures don't take place in ideal settings. It is estimated that about half of all wrongful convictions resulted from mistaken identifications by eyewitnesses.

Identification Procedures

There are different procedures for presenting a victim or witness with suspects of crime. - Confrontation—any presentation of a suspect - Show-up—presentation of a single suspect - Photographic Show-up—presentation of a single photograph - Lineup—presentation at one time of several persons, which may or may not include a suspect - Photo Array (Photographic Lineup)—presentation at one time of several photographs, including that of a suspect

Lineups/Pretrial Identification

There are other means of pretrial identification: - DNA testing - Polygraph examination - Breathalyzer tests - Hair samples - Brain fingerprinting

Legal Standards for Admitting DNA Evidence

There are three legal standards for admitting DNA profiles as evidence: Frye test—admissible if technique has gained general scientific acceptance. Frye Plus test—admissible if technique has gained general scientific acceptance and the particular testing used followed accepted scientific techniques. Federal Rules of Evidence—admissible if the relevance of the evidence outweighs any tendency to unfairly hurt the defendant's case.

Retrieval Errors

There are two types of retrieval errors: 1. Errors of omission—failure to recall a key detail 2. Errors of commission—picking an innocent person from among those presented.

Wade-Gilbert Rule

US v Wade - a police lineup or other face-to-face confrontation after the accused has been formally charged with a crime is considered a critical stage of the proceeding so the accused has a right to have counsel present during Gilbert v. CA - Police identification procedures that are fraught with dangers of suggestion are invalid because they violated the accused's right to Due Process

The Constitution and Identification Procedures

Until 1967, the courts (judges), including the Supreme Court, adopted a "hands-off" approach to admitting evidence of lineups, show-ups, and photo identification. - It was up to juries to assess their reliability, not courts.

Mug Shots

"Mug shot" (photo) identification is the least reliable, yet most widely used, method of identification. - The two-dimensional nature of photographs enhances the inaccuracy of identifications made from them.

Five factors determine witnesses' reliability:

1. Their opportunity to view defendants at the time of the crime 2. Their degree of attention at the time of the crime 3. Their accuracy of description of suspects prior to the identification 4. Their level of certainty when identifying suspects at the time of the identification procedure 5. The length of time between the crime and the identification 2 Pronged Test - Unnecessarily Suggestive and Substantial Likelihood of Mis-ID

Acquisition of Memory

Acquisition of memory refers to the information the brain takes in at the time of the crime. - The brain doesn't record every little detail. - Perceptions trump reality. - We all pay selective attention to what's going around us.

DNA Profile Identification

DNA can potentially identify individuals or absolutely exclude them as suspects. - The most widely used test, called DNA fingerprinting, compares crime scene samples of DNA to suspects' samples. - Reliability issues arise not from technology but from DNA testing procedures.

The Stovall v. Denno Rule

Due process forbids any pretrial identification procedure that is (1) unnecessarily suggestive; (2) and conducive to irreparable mistaken identification. - All lineups and show-ups must be conducted in a fair and impartial manner. - Suggestiveness is evaluated by courts under the totality of the circumstances surrounding the pretrial identification.

Emergency Situations

Emergency situations (like impending death of a witness) sometimes require that police conduct a confrontation in a manner that would otherwise be considered to be too suggestive. - Assuming reliability, courts will admit such identifications, provided that exigent circumstances exist.

Polygraph

Generally inadmissible as they fail to conform to the Frye Doctrine. Often Used in Supervision of Sex Offenders and in Some Employment Situations

Identification Procedures

Law enforcement uses three major procedures to help witnesses identify suspects who are strangers to them: - Lineups - RTC Applies @ Critical Stage - Show-ups - RTC Applies @ Critical Stage - "Mug shot" photo identifications - No RTC

Lineups

Lineups are the least often used but are generally more reliable than show-ups and viewing photos. (Practical Challenges) Their reliability depends on their makeup and the procedures used. The power of suggestion is one of the biggest threats to proper lineup procedures. It's difficult to shake witnesses' confidence once they make identifications, even if they're wrong.

Memory & Identification

Memory problems lead to victim misidentification of "stranger" criminals. Mistaken Identity is the leading cause of wrongful convictions Psychologists usually separate memory into three phases: Acquisition of memory Retention of memory Retrieval of memory

The Power of Suggestion

Most misidentifications result from both natural memory imperfections and suggestion. - Suggestion is most powerful during the retention and the retrieval phases. - Police identification procedures increase the power of suggestion.

Show-up Case

Neil v. Biggers (Nurse Rape Case) Facts: Nurse Raped Under Moonlight following abduction from home during which she claims to have viewed the Rapist who confronted her in her dark kitchen. Gave a general description to Police: "Fat, flabby, smooth skin, bushy hair, and a youthful voice." Several identification procedures over next seven months did not result in an identification. Show-up conducted at police station. Suspect paraded before W/ and instructed to say "Shut Up or I'll Kill You." Victim Identified ("No Doubt About It") Suspect.

Perception

Perception is a highly selective, unconscious process. Depends on the acuity of the physical senses and a number of psychological factors. The sensory data we "perceive" is processed in light of experience, learning, preferences, biases, and expectations. Impacted by factors like sensory overload and incomplete sensory acquisition.

Establishing the Facts

Proving a crime was committed is a lot easier than proving who committed it. Despite technological advances, eyewitness identification remains the most widely used way to identify and prove the guilt of strangers (perpetrators that victims don't know).

Recommendations for Reducing Suggestion

Recommendations to reduce the influence of suggestions include: - Provide might-or-might-not-be-present instructions - Use a blind administrator. - If the witness identifies the suspect, immediately ask the witness how sure he or she is of the identification. - Use sequential, not simultaneous, presentation

Retention of Memory

Retention of memory refers to the information the brain stores between the time of the crime and the identification procedure. - Memory fades most during the first few hours after an event. - As witnesses' memory fades, their confidence in their memory rises. - Judges and juries attach a lot of weight to confident witnesses.

Show-Ups

Show-ups are less reliable than lineups but used more frequently. The three common situations in which courts are most likely to admit show-up evidence are: 1. Accidental encounters between witnesses and suspects 2. Emergencies 3. Suspects on the loose

Recommendations for Lineup Makeup

The International Association of Chiefs of Police (IACP) recommends that lineups include: - Five or six participants - Similar race, ethnicity, and skin color - Similar age, height, weight, hair color, and body build Similar clothing Reality often falls short of this.

The Accuracy of Observation

The accuracy of witnesses' observations depends on: - Length of time to observe - Distractions during the observations - Focus of the observations - Stress during the observations - Race of the witness and the stranger