Eyewitness identification policy introduction



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MODEL POLICY FOR LAW ENFORCEMENT AGENCIES IN NEW MEXICO

EYEWITNESS IDENTIFICATION POLICY

INTRODUCTION

Eyewitness identification includes photo lineups, live lineups, and show-ups.




  • The vast majority of eyewitness identifications are photo lineups.

  • The photo lineup policy will be discussed first.

  • Principles relating to photo lineups generally apply to live lineups.

  • Differences that exist will be noted in the policy on live lineups.

  • The last policy discussed will be show-ups.


EYEWITNESS IDENTIFICATION – PHOTO LINEUPS

  1. POLICY

It is the policy of this department that a photo lineup be done using the highest standards possible, to identify the guilty and protect the innocent.


  1. PURPOSE

In 1989, an innocent person was released from prison because of a new technology called DNA. Since then, DNA has been largely responsible for over 300 people being released from prison. The average sentence was thirteen years; eighteen persons had been on death row.
The majority of people released had been convicted because of mistaken identification. In recent decades, scientific research has found that simple changes in administering photo lineups can raise the standards and accuracy of photo lineups.

It is the purpose of this policy to provide law enforcement officers the means to do photo lineups based upon recent scientific research and practice.




  1. DEFINITIIONS




  1. Photo Lineup

An identification procedure in which an array of photographs, including a photograph of the suspect and additional photographs of non-suspects, is displayed to an eyewitness for the purpose of determining whether the eyewitness identifies the suspect as the perpetrator.




  1. Sequential Lineup

When photographs are shown to a victim or witness one at a time, with an independent decision on each, before the next photo is shown.




  1. Blind Administrator

The person administrating the photo lineup doesn’t know which person in the photo lineup is the suspect. This definition includes the following:


“Single blind” means the officer is aware of a suspect, but does not know which lineup member is being viewed by the witness; “Double blind” means neither the person administering a photo lineup or witness knows the identity of a suspect.


  1. Confidence Statements

A statement in the victim or witness’ own words, articulating their level of confidence in the identification taken at the time the identification is made.


  1. PROCEDURES

Two major reforms are included in this policy: (1) blind administration, and (2) a sequential rather than a simultaneous photo lineup.


FIRST MAJOR REFORM: BLIND ADMINISTRATION
A person doing a photo lineup may inadvertently give clues to a witness as to who the suspect is. This can be avoided when the person showing the photographs doesn’t know which photograph is the suspect.
SECOND MAJOR REFORM: SEQUENTIAL PHOTO LINEUP
In a traditional six-pack photo array, witnesses view all photographs at the same time. Unfortunately, comparison shopping may occur as witnesses compare one photo with another to determine which photo most resembles the offender. The result is a higher rate of false identifications in a photo lineup when the offender is not present.
Lab studies and research favor a sequential photo lineup, where an eyewitness is shown one photo after another. This encourages an eyewitness to compare individual photos to their memory of the offender rather than to other photos.
PRIOR TO A PHOTO LINEUP
Prior to a photo lineup, law enforcement shall record as complete a description as possible of the suspect and the conditions in which the eyewitness saw the suspect in their own words.

This description will later be used as the basis for selecting non-suspects (fillers) for the photo lineup.


The statement shall include information regarding the conditions under which the eyewitness observed the suspect including:


  1. Location where the offense took place,

  2. Amount of time to observe the suspect,

  3. Distance between the witness and the suspect,

  4. Obstructions to observing the suspect,

  5. Lighting conditions,

  6. Weather conditions,

  7. Impairments – does the eyewitness wear glasses or contact lenses and were they wearing them at the time,

  8. The degree of attention,

  9. Was the eyewitness under the influence of alcohol? If so, how much,

  10. Had the eyewitness taken any kind of drugs that day? If so, what kind.

The administrator doing the photo lineup shall note whether the eyewitness was wearing glasses or contact lenses at the time of the identification procedure.


VERBAL INSTRUCTIONS TO THE EYEWITNESS
The eyewitness shall be advised, without other eyewitnesses present, that:


  1. It is just as important to eliminate innocent persons from suspicion as it is to identify guilty parties,

  2. The suspect may or may not be in the photo lineup,

  3. The witness should not feel compelled to make an identification,

  4. The investigation will continue whether or not an identification is made,

  5. The appearance of the suspect may have changed since the incident,

  6. The person giving the test does not know who the suspect is,

  7. Individual photos will be viewed one at a time,

  8. The photos are in random order,

  9. The witness has as much time as needed in making a decision about each photo before moving to the next one,

  10. If an identification is made, the witness will be asked for a statement of confidence in their identification,

  11. Ask for a verbal or written acknowledgment indicating they understand the instructions,

  12. Ask the witness if they have any questions.


PREPARING THE PHOTO LINEUP


  1. The photograph of the suspect shall be contemporary and shall resemble his or her appearance at the time of the offense,

  2. There shall be nothing on the photographs themselves or the background context that would make any of them stand out,

  3. Photographs of non-suspects shall match the description provided by the eyewitness so that the suspect does not unduly stand out,

  4. The non-suspects should resemble the eyewitness’s description of the suspect in significant features (face, weight, build, skin tone, etc.) and unique features (scar, tattoo, etc.) while ensuring that the suspect does not stand out from non-suspects,

  5. Avoid using photos of non-suspects who so closely resemble the suspect that it would be difficult to distinguish the suspect from a non-suspect,

  6. At least five non-suspects shall be included in the photo lineup, in addition to the suspect,

  7. No information regarding prior arrests shall be visible on the photos, or made known to the eyewitness.

  8. Put an ID number on the back of each photo and refer to the photo by that number.

If there are multiple eyewitness


  1. Instructions are to be given to witnesses separately,

  2. Each witness shall view the photo lineup separately,

  3. The suspect shall be placed in a different position in the photo lineup for each witness,

  4. Witnesses shall not be permitted to communicate with one another until all identification procedures have been completed.


If there are multiple suspects


  1. Each photo lineup shall include only one suspect.


NEW TECHNOLOGY


  1. Software technology is available that can provide similar looking photos for a photo lineup.


PRESENTING THE PHOTO LINEUP


  1. Photos shall be shown to the witness sequentially, one at a time.


AFTER THE PHOTO LINEUP
If an identification is made


  1. If a witness makes an identification before all the photos are shown, a confidence statement should immediately be taken,

  2. The statement should be in their own words, giving their level of confidence in their identification,

  3. Do not ask the witness for a numerical rating of their confidence level,

  4. Advise the witness, “You will recall from my instructions that the procedures require that I show you the remainder of the photos.”

  5. If a witness wants to see a particular photo, all photos need to be shown,

  6. If the witness identified a person as a suspect, the witness shall not be given any information concerning such person until the administrator obtains the eyewitness’s confidence statement.

Using these guidelines should in no way imply that identifications made without these procedures are inadmissible or otherwise in error.


RECORDING THE RESULTS
Need to preserve the outcome of the procedure by documenting results.
This includes:


  1. Date and time of the photo lineup,

  2. Names of all persons present at the photo lineup,

  3. The name of the administrator and whether the lineup was single blind or double blind,

  4. A blind administration may not be practicable. If so, note the reasons why. The next section suggests what to do in these situations.

  5. Sources of all photographs used,

  6. Record all results, whether an identification is made or not, including an identification of a non-suspect,

  7. Have the results signed and dated by the eyewitness.

  8. The eyewitness confidence statement,

  9. Witness is not to write or mark any materials that may be used in a subsequent photo lineup,

  10. A video and audio recording of the photo lineup, when possible. This will help avoid disagreements about what happened later,

  11. Photo lineup information should be maintained by the primary investigator.


WHAT IF A “DOUBLE BLIND” PHOTO LINEUP ISN’T PRACTICABLE?
Sometimes a “double blind” photo lineup isn’t practicable. It may be a small town where another person to do a photo lineup isn’t available. It may be a high profile case where every officer knows who the offender is. Even though an officer may know who the offender is, it’s still possible to do a “single blind” photo lineup.


FOLDER SHUFFLE” METHOD
Law Professor Brandon Garrett of the University of Virginia notes the folder system is easy. “You just put the pictures, one in each folder, and shuffle the folders with a couple of extra folders that are blank. The witness can open the folders and look at the pictures without the detective being able to see what they’re looking at.”
“It’s a really simple way to make a line-up both sequential and double-blind, two of the major reforms. It doesn’t rely upon the traditional “six-pack” photo array.”
PREPARING THE FOLDER SHUFFLE METHOD


  • Obtain one (1) suspect photo that resembles the description of the perpetrator provided by the witness.

  • Obtain five (5) non-suspect photographs to match the description provided by the eyewitnesses,

  • Obtain ten (10) file folders. (four of the folders will not contain any photos and will serve as ‘dummy folders’).




  1. Number the outside of each folder #1 through #10,

  2. Staple or tape one (1) non-suspect photo to the inside of folder #1,

  3. The individual administering the lineup should put the suspect photos and the other five non-suspect photos into Folders #2-6 and shuffle the folders so that the administrator is unaware which folder the suspect is in,

  4. The remaining folders (Folders #7-10) will contain a page with the following text: “THIS FOLDER INTENTIONALLY LEFT BLANK.” This is done so that the witness does not know when she or he has seen the last photo.


PRESENTING THE FOLDER SHUFFLE METHOD

  1. Without looking at the photo in the folder, the administrator is to hand each folder to the witness individually,

  2. The witness will view the photo in the folder and then return it to the administrator before being presented with the next folder,

  3. The order of the photos should be preserved, in a facedown position, for documentation purposes,

  4. The witness may (at their request) review the folders a second time. If so, all folders are provided in the same order of presentation,

  5. If a selection is made mid-array, show the remaining photos to the witness.

  6. If a selection is made, have the witness do a confidence statement.

  7. After photos are shown, follow the procedures noted previously.


IF A SECOND PHOTO LINEUP IS NEEDED

When a witness doesn’t identify someone, another suspect may develop. Use the same procedures but remember this: the non-suspects used in a subsequent photo lineup should be different from the non-suspects used in the first photo lineup.


EYEWITNESS IDENTIFICATION - LIVE LINEUP


  1. DEFINITION




  1. Live lineup

Under this identification procedure, an eyewitness will view a group of people, in person, to determine whether the eyewitness can identify the suspect. In addition to the suspect, there shall be at least four non-suspects in the lineup.




  1. FEATURES THAT DISTINGUISH A LIVE LINEUP FROM A PHOTO LINEUP


RIGHT TO AN ATTORNEY


  1. A suspect in custody who has been formally charged (arraigned) needs to be informed of a right to an attorney for a live lineup.

  2. Any waiver should be documented in writing or by electronic recording.

  3. Suspects who have not been formally charged have no right to counsel at a lineup.

  4. If present, give defense counsel sufficient time to confer with their client prior to the lineup and observe the manner in which the lineup is conducted.


PRACTICAL CONSIDERATIONS IN DOING A LIVE LINEUP


  1. The reforms and procedures noted in the photo lineup policy generally apply to a live lineup.

  2. A group photo should be taken of all persons in a lineup together to illustrate size differences among participants.

  3. The group photo should not be shown to the eyewitness, but will be included with the case file.

  4. Instruct all those present at the lineup not to suggest in anyway who the suspect is.

  5. All lineup participants must be out of view of the eyewitness prior to the identification procedure.

  6. Ensure that all participants are numbered consecutively and referred to by number only.

  7. Create a consistent appearance between the suspect and non-suspects with regard to any unique or unusual feature (e.g., scars, tattoos, and facial hair).

  8. Each participant will appear one at a time before the eyewitness.

  9. The courts have held that requiring a participant to speak, wear certain clothes or carry out actions such as standing, walking, or gesturing, are not violations of the Fifth Amendment right against self-incrimination.

  10. Any identifying actions, such as speech, gesture or other movements, shall be performed by all lineup participants.

  11. If possible, officers should not be used as non-suspects for a lineup.



EYEWITNESS IDENTIFICATION - SHOWUPS



  1. DEFINITION




  1. Show-up

The presentation of a suspect to an eyewitness soon after a crime occurs to determine if the eyewitness identifies the suspect as the perpetrator.


  1. GUIDELINES TO REMEMBER WHEN DOING A SHOW-UP


DISADVANTAGES TO DOING A SHOW-UP


  1. Show-ups, by their nature, are highly suggestive.

  2. Show-ups should be used only when the immediate display of a suspect to an eyewitness is absolutely necessary.

  3. Show-ups will be reviewed closely by the courts.


ADVANTAGES OF DOING A SHOW-UP


  1. May assist in the release of an innocent person who has been detained.

  2. If an innocent person is released, it can help officers pursue other leads.

  3. It may result in an early apprehension of the primary suspect.

Reminder: Show-ups should not be used when independent probable cause exists to arrest a suspect. In these cases, a photo line-up or live lineup is a more useful.


PRACTICAL CONSIDERATIONS IN DOING A SHOW-UP


  1. Many principles noted in the photo lineup policy apply to a show-up.

  2. Prior to a show-up, a statement, similar to one used in a photo lineup, should be taken to include a detailed description of the suspect.

  3. The witness should be taken to the suspect’s location rather than bringing the suspect to the witness.

  4. The location should be a neutral, non-law enforcement location.

  5. Show-ups shall not be conducted when the suspect is in a cell or in jail clothing.

  6. Measures should be taken by investigators at the show-up, including the administrator of the show-up, to reduce potentially damaging assumptions that might be made by the witness,

  7. The administrator should refrain from suggesting, through statements or non-verbal conduct, that the suspect is or may be the perpetrator of the crime.

  8. When practical, remove handcuffs from the suspect.

  9. Show-ups shall not be conducted with more than one witness present at a time.

  10. A separate show-up will be required if there is more than one suspect.

  11. Suspects in a show-up shall not be required to put on clothing worn by the perpetrator or speak words or perform other actions of the perpetrator.

  12. After a show-up, a confidence statement shall be taken from the eyewitness.

  13. When a show-up is conducted, regardless of the results, it should be documented.

  14. A photograph of the suspect at the time and place of the show-up should be taken.

  15. When practical, the show-up procedure should be recorded.

  16. When a positive identification leads to an arrest, additional eyewitnesses shall be given a live lineup or photo array.


CONCLUSION


  1. IMPORTANCE OF FOLLOWING A GOOD EYEWITNESS IDENTIFICATION POLICY

These policies are based upon the recent research findings that use “best practices” and the highest possible standards for eyewitness identification policies.


  1. APPLICABILITY

This policy applies to all commissioned officers of the _______________.


  1. SOURCES




  1. CALEA: Improving Eyewitness Identification Procedures

  2. International Association of Chiefs of Police: Law Enforcement Policy Center

  3. The Innocence Project.

  4. Police Executive Research Forum.

  5. United States Department of Justice, Eyewitness Evidence: A Guide for Law Enforcement, and numerous state and city policies.

  6. Professor Gary Wells (Psychology), Iowa State University.




  1. CONTRIBUTORS




  1. Attorney General for the State of New Mexico.

  2. The Innocence Project – National Headquarters, New York City.

  3. New Mexico District Attorneys’ Association.

  4. NM Department of Public Safety – Law Enforcement Academy.



  1. APPROVAL

Approved by: ____________________ DATE: ______________

Prepared by:
Elliott Guttmann, Legal Instructor

NM Law Enforcement Academy

Advanced Training Bureau

Santa Fe, New Mexico





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