Suspect Identification

What are the US constitutional amendments that apply to identification procedures?

Fifth Amendment and 14th Amendment: right to Due Process - fundamental fairness is required. Protects against undue SUGGESTIVENESS in ID procedures. Does not protect against ID EVIDENCE.

VA code 19.2–390.02

State police, and each local police and Sherrif’s office must establish a written policy and procedure for conducting in person and photographic lineups.

Show-Up

1. presentation of one person for possible identification as the perpetrator of a crime.

2. One on one opportunity for identification

3. Usually done where suspect is FOUND

Photo Spread

Display of several photographs of persons for possible identification of one or more of them as perpetrators of crime

Line Up

presentation of several persons for possible identification of one or more of them as perpetrators of crime

SHOW-UP procedures

1. PRIOR to show-up (photo or live lineup) record as complete the description as possible of the perpetrator provided by eyewitness and eyewitnesses own words

2. When multiple witnesses are involved SEPARATE witnesses and instruct them to avoid discussing details of the incident with other witnesses. If a positive identification is obtained from one witness consider using other identification procedures for remaining witnesses

WHEN do you do a SHOW-UP?

1. Soon after the crime

2. Within 2 hours of the offense

WHERE do you do a SHOW-UP?

1. suspect is found

2. Bring witness to scene (Do not bring suspect to witness)

HOW do you conduct a SHOW-UP?

fairly, without undue subjectiveness

Does 6th Amendment apply to a Show Up?

NO

What is the key element to a show-up?

TIME: The longer the time after the crime, the greater, the likelihood that the ID may be suppressed by the court (Suggestive or unreliable)

DOCUMENT time and location

How do you conduct a proper PHOTO SPREAD?

Sequential Blind Method: Photos are displayed one at a time to the eyewitness by a person who is not involved in the investigation and does not know who the suspect is.

PRIOR to presenting a photo lineup, the investigator should explain to the witness that:

1. he/she will be asked to view a set of photographs

2. It is just as important to CLEAR INNOCENT PARTIES from suspicion as to identify guilty parties

3. Individuals depicted in the lineup may not appear exactly as they did ON THE DATE OF THE INCIDENT because features such as head and facial hair a subject to change.

4. The person who committed the crime MAY OR MAY NOT be in the set of photographs being presented

5. Regardless of whether and identification is made, the police will CONTINUE TO INVESTIGATE the incident

6. Ask the witness to state in his/her own words HOW CERTAIN he/she is of any identification

7. At the conclusion of the lineup the administrator will not tell you if you picked the suspected perpetrator.

Aspects of a SEQUENTIAL DISPLAY of photos

1. At least SIX numbered pictures (5+ Suspect)

2. Same RACE and SEX

3. Similar AGE and PHYSICAL characteristics

4. Similar photo background

5. Do not mix or ordinary photos with police booking pictures

6. Place photos and random order

7. Show Photos one at a time

8. Document procedures, who was present, date and time, sources used for photos, and any confidence statements

Describe how to conduct a proper line-up

1. At least FIVE (INCLUDING suspect)

2. Same SEX and RACE

3. Similar AGE and PHYSICAL characteristics

4. Each witness views line-up SEPARATELY

5. Each participant in line-up is given SAME INSTRUCTIONS

6. Ensure that any identification actions are performed by all members of the lineup.

7. Without undue Suggestiveness

8. TAKE A PHOTOGRAPH OR VIDEO OF LINEUP

9. Document procedures, who was present, date and time, sources used for photos, and any confidence statements

When does 6th Amendment apply?

The right to presence of an attorney IF it is a LINEUP is after the arraignment or indictment

Neil v Biggers (1972)

The court decided that verifying ID procedures are viable under substantial circumstances, such as pretrial identification, with the very substantial likelihood that the identification was reliable, even if procedures were suggestive

Sample v Com (2024)

Court decided that single identification by an officer is not unlawful. The comments did not inevitably induce/suggest the victim to identify the photo as the perpetrator.

Discuss the procedure used in court to test the legality of an identification

1. in a suppression motion ID evidence may be rolled in admissible because: No council was present at lineup when required. Bad procedures were used to producing unfair and unreliable results.

2. If an identification procedure is determined by the court to be suggestive, it may NOT be ruled in admissible if it can be shown to be reliable

what factors determine the reliability of the identification?

1. The witnesses opportunity to view the criminal at the time of the crime.

2. The witness’s degree of attention at the time of the crime

3. The accuracy of the witnesses prior description of the criminal

4. The witness’ level of certainty, when identifying the suspect at the confrontation

5. Th Between the crime and the confrontation

The court will BALANCE reliability as measured by the above factors against the effect of suggestive procedures