Eyewitness Identification

views updated

EYEWITNESS IDENTIFICATION

Eyewitness identification can be powerful evidence in a criminal prosecution. Yet an identification can easily be wrong, whether made soon after the crime or in court. Because identifications can have a potentially devastating impact and are of questionable reliability, courts are especially concerned with them. Triers of fact typically assume that an eyewitness to a crime can accurately discern and remember the physical characteristics of the perpetrator. However, extensive research proves that powers of observation and recall are quite deficient.

The legal system cannot fully rectify problems with identification; it cannot affect a witness's perceptual and recall capabilities. However, the law can try to control any conscious or unconscious attempt by the police or prosecution to supply what perception and memory cannot.

Although the courts have never directly supervised the use of identification techniques, the Supreme Court has tried to minimize mistaken identification by requiring that procedures most likely to produce inaccurate results comport with certain constitutional requirements. Both the Sixth Amendment right to counsel and the due process clauses of the Fifth Amendment and fourteenth amendment provide defendants with substantive bases for questioning identifications.

In united states v. wade (1967) the defendant participated in a postindictment lineup conducted without notice and in the absence of his counsel. The Supreme Court held that the Sixth Amendment required invalidation of the defendant's subsequent conviction because a postindictment lineup was a "critical stage," when substantial prejudice to defendant's rights could result and counsel could help to avoid the prejudice.

However, the Supreme Court held in kirby v. illinois (1972) that the right to counsel does not extend to pretrial identification procedures employed before adversarial judicial proceedings are initiated. In Kirby the defendant was arrested and later identified in a police station confrontation at which the defendant was not advised of his right to counsel and his attorney was not present. The Court clarified the "initiation of adversarial proceedings" in Moore v. Illinois (1977), where the defendant was identified by a victim during a preliminary hearing where his counsel was not present. In Moore the Court held that adversarial proceedings had begun at the preliminary hearing, rather than only after the indictment.

In united states v. ash (1973) a witness observed a photographic array prior to trial, and defendant's counsel was not present. The Court held that there is no right to counsel at such displays and that right to counsel is limited to "trial-like confrontations." In a photographic display, the defendant is not present and does not confront the prosecutor or the adversarial system.

The Supreme Court held in Stovall v. Denno (1967) that the guarantee of due process of law protects an accused from identification procedures that are "so unnecessarily suggestive and conducive to irreparable mistaken identification" as to deny a defendant due process of law. In Stovall the Court held that a one-to-one emergency confrontation between the accused and an injured witness in a hospital room did not violate due process because it was not unnecessarily suggestive and was not substantially likely to lead to misidentification.

The due process questions of suggestibility returned to the Court in the following years. In Simmons v. United States (1968) the felons who had robbed a bank were still at large. The police showed six snapshots to witnesses, who identified the defendants from the photos. Guidelines of the International Association of Chiefs of Police require a photographic array to include eight photographs. However, in this case, the Court found that the compelling need for identification of the robbers justified the suggestive procedure as long as there was little danger of misidentification and rejected the defendants' due process claim. Then in Neil v. Biggers (1972) the Court emphasized reliability over suggestibility in analyzing a due process claim. In Neil the Court accepted the reliability of a station-house show-up at which the defendant was identified in an accidental encounter at a water fountain seven months after the crime. The Court denied the defendant's due process claim.

In Manson v. Brathwaite (1977) the Court reaffirmed that the reliability of an identification is the "linchpin" of due process analysis. In Manson an undercover police officer purchased heroin from a seller while standing near him in a well-lit hallway for two or three minutes. A few minutes later the undercover officer described the seller to another officer, who gave the undercover officer a picture of the defendant. Two days later, the undercover officer identified the picture as a photograph of the person from whom he had bought heroin. The Manson Court held that a single photographic display of an accused did not create a substantial likelihood of irreparable misidentification, for it was done by a trained police officer. To prevail on a due process claim, then, a defendant must prove both unnecessary suggestiveness and substantial likelihood of misidentification.

The remedy for violation of either the Sixth Amendment right to counsel or the due process standards is exclusion of the pretrial evidence and of any in-court identification derived from the tainted pretrial identification. To limit the application of this severe remedy, the Supreme Court has developed the "independent source" test, by which an in-court identification is admissible if it derives from a source independent of the tainted identification. A source is independent if there has been prior opportunity to observe the criminal act, an easy identification, and no past misidentification. However, in Moore the Court held that criminal prosecution may begin as early as the initial appearance, at least for the purpose of determining the right to counsel.

At a suppression hearing, usually held prior to trial, the court determines admissibility of pretrial identification evidence. Generally, the prosecution bears the burden of establishing the presence of counsel or intelligent waiver by the accused or of showing that an in-court identification derives from a source independent of tainted pretrial identification. The burden of proving a violation of due process, however, is on the defendant. In some jurisdictions, if the defendant can show that an identification process was unnecessarily suggestive, then the burden shifts to the government to show the justification of exigent circumstances.

Admissibility and credibility are separate questions. Identification evidence found admissible, usually by the judge, is not necessarily credible. The jury decides whether it believes that the witness has made an accurate identification.

Properly conducted lineups are least likely to result in misidentification. A court has the authority to order an accused to participate in a lineup. A court may, in its discretion, order a lineup at the request of the defendant, but the defendant has no constitutional right to a lineup either before trial or in the courtroom during trial. A court may also allow the defendant to sit in the audience. Sound litigation tactics require counsel for the defendant to observe the lineup procedure for reliability but not participate or use the lineup for discovery.

Charles H. Whitebread
(1992)

(see also: Procedural Due Process of Law, Criminal.)